Page 21 - Issue 22

Associations 21

Engineering Associations Botswana Disputes Under

Real Estate Institute Of
Botswana
TEL: 316 4713
CELL:72 107 842

Royal Institution Of Chartered FIDIC 2017
Surveyors Botswana Group
TEL: 310 5494
CELL: 72 111 201

Setlogelwa Tsatsing Civil &
Contractors Association
CELL: 71 380 505 Introduction Engineer’s Determination: Sub-Clause agreed or determined, the matter shall
3.7 be deemed to be a Dispute which may
Quantity Surveyors Registration • The new contracts are be referred by either party to the DAAB
Council approximately 50% longer 1. The Engineer shall consult with both for its decision under Sub-Clause 21.4
Tel: 3956170 • Much more administratively parties to encourage discussion and without a need for a NOD.
burdensome with deeming endeavouring to reach an agreement.
For any Ommitted Associations • provisions and time bars. 2. If agreement is reached the parties Sub-Clause 20.1
“A Claim may arise:
The old clause 20 has been split into shall sign a Notice to that effect.
or Corrections to the above clause 20 and 21 to separate claims 3. If no agreement is reached or the time (a) if the Employer considers that the
Information /interivews and disputes. limit under Sub-Clause 3.7.3 expires Employer is entitled to any additional
email : • More complex approach to drafting. then the Engineer must give a Notice payment from the Contractor (or
•
Additional project management and proceed immediately to make a reduction in the Contract Price) and/or
marketing@engineermagazine.co.bw tools have been added decision. to an extension of the DNP;
4.The Engineer shall make a fair (b) if the Contractor considers that the
Aims of the Contract determination of the matter and give a Contractor is entitled to any additional
Notice of his/her determination. payments from the Employer and/or to
• Clarity, transparency and certainty 5. If a typographical error is discovered EOT; or if either party considers that he/
• Balance and reciprocity then either party may request the she is entitled to another entitlement or
• Project and contract management Engineer to fix it. The Engineer may also relief against the other party…”
techniques fix it on his/her own accord.
• Dispute avoidance 6.If either party is unhappy with the What is a “fully detailed claim”? Sub-
determination, it may give a Notice of clause 20.2.4:
Aims of the new contracts Dissatisfaction (NOD).
7.If a NOD is issued the DAAB procedure 1.A detailed description of the event or
“The core aim of the majority of the shall apply circumstance giving rise to the Claim;
changes in FIDIC’s 2017 contract updates 8.If no NOD is issued within 28 days of 2.A statement of the contractual and/or
is increased clarity and certainty, the determination then both parties other legal basis of the Claim;
to reduce the risk of disagreements shall be taken to have accepted the 3.All contemporary records on which
regarding the interpretation of contract determination and it shall be treated as the claiming Party relies; and
terms and, as a result, increase the final and binding. 4. Detailed supporting particulars of the
probability of successful projects. 9.If either party fails to comply with the amount of additional payment claimed
Consistent with the above, FIDIC has determination, then the other side may and/or EOT claimed or extension of the
improved the contract provisions refer the dispute to arbitration. DNP claimed.
by making them more prescriptive
and introducing step-by-step project What happens if the Engineer does not Should a time limit be extended? Sub-
management and procedural give a decision in the required 42 days? clause 20.2.5:
mechanisms, by setting out exactly
what is expected from the Employer, the 1. In the case of a Claim, the • Whether or to what extent the
Contractor and the Engineer during the Engineer shall be deemed to have given other party would be prejudiced by
performance of the Contract.” a determination rejecting the Claim; or acceptance of the late submission;
2. In the case of a matter to be • In the case of the time

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