Reference no: EM133531912

Case Study: Company A (the Employer) and Company B (the Contractor) are both private limited companies registered and incorporated as such under the company laws of the Republic of South Africa. The Parties concluded a written construction contract for the supply, fabrication, installation, commissioning and handover of the Power Island Package (which consisted of an 8 MW biomass to electricity generation power plant where wood waste is burned as fuel) in Beaufort West, Eastern Cape on 09 November 2010 in Sandton, Johannesburg. The written contract employs the FIDIC Conditions for Construction Works (1999, First Edition) - the "New Red Book". The Engineer appointed by the Employer in accordance with the provisions of sub clause 3.1 [The Engineer] is Mr. Ready Eddie (PR Eng). The Contractor fabricated, supplied and delivered to Site all the equipment and Plant necessary to complete construction of the 8 MW biomass power plant. Delivery was completed to the satisfaction of the Engineer on 28 July 2014. The Employer was required to give the Contractor right of access to, and possession of, the Site for construction on or before 18 August 2014.

Notwithstanding the Contractor's repeated requests, the Employer failed to give the Contractor right of access to, and possession of, the Site within such times as required by the Contractor to proceed with execution of the Works in accordance with the programme submitted by the Claimant under sub clause 8.3 [Programme] by 15 June 2015. The Employer and Engineer have both failed to enter into any further communications whatsoever with the Contractor on this issue or at all since June 2015.

You are consulted by the Contractor on 5 August 2015 and instructed, with specific reference to the relevant provisions of the Contract, to:

Question (a) detail a comprehensive strategy (including supporting argument) for the Contractor to implement in order to effectively resolve these unsatisfactory circumstances; and

Question (b) having detailed the aforementioned strategy prepare the necessary correspondence and / or documentation to the Employer and / or the Engineer which you have determined is necessary in order to implement your strategy.