Arrest the Contractor not the Client
By Ngobola Cengelo Muyembe
If it was a Design-Build contract, then arrest the contractor because he is entirely responsible for the works and here is why. In a Design-Build Contract, there are the employer’s requirements and the Contractor’s proposal.
The employer in the case was the government of Zambia approached the contractor with a set of requirements. Those requirements were to build them an FTJ University. The contractor responded with a proposal that included the production of design work, time schedules, proof of experience and a guarantee that they will fulfil the employer’s requirements.
The key item is to have an extremely experienced employer who understands contract management and the laws that govern them.
That is why one of the first documents to submit before any advance payment can be given to the contractor is the advance payment guarantee which the contractor obtains at his own cost and can be cashed by the employers in an event of default.
In a DB, the risk is entirely on the contractor, so arresting Mr Yamba means someone does not know what they are doing and might botch the entire case. One might say the risk in Design-Build is the lack of an independent consultant to evaluate the work as it happens, but the employer usually has an advisor especially when the project is of such magnitude.
Single point responsibility and the nature of the relationship between the employer’s requirement and the contractor’s proposal is actually an advantage for the employer. It does not matter the contact sum, but the contractor is responsible for everything including the design and production of necessary statutory approvals. The contractor must do whatever is necessary to achieve the employer’s requirements and, in this case, it was to build them a university.
What that means is that there is no risk associated with the employer and all the risk of the costs exceeding, completion time or the price lies entirely with the contractor. There might be some changes that may result in the employer being liable for some extra money but all the liabilities including completion, default and time are with the contractor.
Those volumes you purchase from procurement offices when bidding for work are not for decoration. Some people just go straight to the BOQ not knowing that there are also Conditions of Contracts which come in nine parts and there is a reason for that.
You need a person with knowledge of construction management or construction contracts because if you just rely on some of these law enforcement officers, you will end up arresting the wrong person.
#Zambia_Chalo_Chesu_Fwebene
#i_wish_i_had_more_time_to_write