AN OVERVIEW OF CONSTRUCTION CLAIMS: - Clark Wilson LLP

p. 22
IX.
CLAIMS
A. FAILURE TO COOPERATE
There is no specific term requiring “cooperation”, per se, in the general conditions of the CCDC
2 – 1994. There are, however, terms which require the contractor to carry out certain duties.
1. The Owner’s Duty To Cooperate
An owner generally does not have many obligations under the contract, but are generally
required by the contract to:
(a)
(b)
(c)
Provide the contractor with access to the site;
Providing adequate information and instructions in order for the contractor to
carry out the work; and
Pay the contractor in accordance with the terms of the contract.
A fundamental contractual duty of the owner is to provide the contractor with the project site.
This duty to provide access to the project site is often an implied warranty, as opposed to being
an express term of the contract. 39 An owner may interfere with the contractor’s access to the site
and fail to cooperate by:
(a)
(b)
(c)
(d)
Denying access to the project;
Imposing restricted work areas;
Using the site in a way that impedes the contractor’s work at the site; or
Allowing other contractors to work on the project site in a way that interferes with
the contractor’s work.
It is, therefore, important for the owner to be conscious of the ways in which it may impede the
contractor’s access to the project sites, and ensure that it avoids doing so. Impeding the
contractor’s access to the project site will often result in construction claims and, especially,
delay claims.
Providing access to the project site requires the owner to have legal ownership or rights to the
property on which the project to be built. This point is especially worth mentioning for public
entities involved in highway or transportation construction. Disruption in the work and resulting
delay often occur in such construction because of the failure of the owner in that circumstance to
provide the contractor with necessary rights of way to proceed over the land of others. Similar
problems can occur in the erection of power transmission lines or communication towers. Note
39
Ibid, Bramble and Callahan.
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