PWA’s general conditions of contract and the applicable provision of law no. 22 of 2004 (Civil Code of Qatar)

By: ‎Rey I. Madroño
‎(Construction-Contracts Lawyer & Engineer)‎

IntroductionThe Civil Code of Qatar, Law No. 22 of 2004 took effect on 30 June ‎‎2004. This relatively new law is a variant of the Civil Code of Egypt with ‎modifications but majority of the provisions on Obligations and ‎Contracts under the Egyptian Civil Code are retained with minor ‎changes under Law No. 22.‎

Of particular interest under Law No. 22 of 2004 are new sets of articles ‎that are not found under the Egyptian Civil Code. Peculiar only to Qatar ‎Civil Code is Part III -Chapter I of the Code which deals exclusively on ‎Contracts Concluded on Work. Chapter I is divided in two sections ‎where Section One prescribes the General Rules on Contracting and ‎Section Two prescribes the Provisions Pertaining to the Contracts of ‎Buildings and Constructions. In all, there are twenty four (24) special ‎articles devoted exclusively by the Code to address major issues ‎concerning contracting of Works.‎

Contracting practices in Qatar, especially over government projects ‎administered by the Public Works Authority (PWA), follow the same ‎contractual practices prescribed under FIDIC suits of Contract. The ‎PWA’s General Conditions of Contract (GCC) is a variant of FIDIC ‎Red Book 1987 Edition where separate roles of the “Engineer” and the ‎‎”Engineer’s Representative” are distinctly provided.‎

While the FIDIC 1987 Red Book underwent revision with the release of ‎its 1999 edition that removed the concept of “Engineer’s ‎Representative”, PWA’s GCC underwent minor revisions in May 2007 ‎but maintained the same concept of “Engineer” and “Engineer’s ‎Representative”.‎

However, other than the PWA, private project owners in Qatar regularly ‎adopt PWA’s General Conditions of Contract and use the same ‎contract document in their relationship with contractors albeit unmindful ‎of the distinct provisions under the GCC that are peculiar only to PWA. ‎One example of these distinct provisions is the concept of the ‎‎”Engineer” who, although fully defined in scope and authority under the ‎FIDIC Red Book, is without defined duties and responsibilities under ‎the GCC. This distinction will be discussed in detail under this book, ‎with its legal effects against applicable provisions of Law No. 22.‎

Among others, this book will endeavour to re-examine important ‎provisions of the GCC against universally observed doctrines and ‎principles of law governing contracting works which now found ‎permanency under the Civil Code of Qatar. With a view to provide ‎additional guide for all parties who share common interest in ‎construction and engineering works, this book is primarily dedicated. ‎

Chapter I
Historical Background on Contracting Principles

The mother of all Civil Code, the Napoleonic Code, which finds ‎influence from France to Spain, to Egypt, to the Philippines and ‎Thailand in Asia, and now in most parts of the Middle East such as ‎Kuwait, UAE and now Qatar, have codified systems of rules of conduct ‎essentially based on established customs, traditions, practices, ‎principles of good faith, fair play and good dealing. The elementary ‎principles behind these rules of conduct regulate the rights and ‎obligations of the parties to a contract. Some of these elementary ‎principles that regulate rights and obligations include: good faith, ‎laches, estoppel, force majeure, pacta sunt servanda, to name a few.‎

Historically, the immediate parties to a contract in a Contract ‎Concluded on Works are simply the Employer or obligee and the ‎Contractor or obligor. The Employer engages the services of the ‎contractor to perform the works, and the contractor binds himself to ‎execute the works for a fee. Within the period of existence of this ‎symbiotic relationship, either party become, in the eyes of the law, ‎creditor or debtor and for which distinct rules of conduct are similarly ‎put in place under the Code. This is the basic symbiotic arrangement ‎for which relationship of the Employer and Contractor is regulated by ‎law since time immemorial. Nothing much has changed in the ‎character of the parties in the eyes of the law but so much has ‎changed in the character of the works and the players necessary to ‎accomplish the works.‎

During the era of the great industrial revolution came the ‎specialists whose services are viewed as necessary in order to ‎properly carry out the Works. These include Quantity Surveyors, ‎Supervising Engineers, Planners and Design Consultants. Suddenly, ‎there was a compelling need to contractually address the participation ‎of these specialist, but regulating the participation of these specialists ‎require complex contract documents, thus emerged contract forms ‎such as the RIBA (Royal Institute of British Architects), FIDIC ‎‎(Fédération Internationale des Ingénieurs-Conseils), ICE (Institution of ‎Civil Engineers), JCT (Joint Contracts Tribunal) and NEC (New ‎Engineering Contracts) and all revisions and variants of these forms. ‎
Due to general patronage and wide usage, these forms have ‎become “standard” and, against legal and critical reviews, each one ‎claims success in patronage over the other. One thing is certain ‎however, most forms are couched and developed under the contracting ‎practices of commonwealth countries and against the backdrop of ‎common law rules and court decisions. Although similarly applicable in ‎civil law jurisdictions, some adjustments in the Clauses of these ‎standard forms must be effected to adjust to the Civil Code and civil ‎law practices and to local customs and traditions.‎

With great influence by these forms, the history of contract ‎documents for Contract Concluded on Works evolved from otherwise ‎simple bilateral Employer-Contractor relationship to complex multiparty ‎agreements to include the obligations of the specialists. With the basic ‎purpose of accomplishing the Works for the Employer, these contract ‎documents are unwittingly couched oblivious to the basic tenets of res ‎inter alios acta (matter between others or outside of the agreement) ‎and of good faith resulting in disputes that forever strain the ‎relationship of the parties. ‎

One common flaw in these standard forms of contracts is the ‎practice of framers to define an item by enumeration in gross disregard ‎of the basic principle expressio unius est exclusio alterius (express ‎mention of one thing excludes all others). The wealth of decisions from ‎both civil and common law jurisdictions gave clear imprimatur on the ‎universal observance of this rule.‎

Several provisions of these contracts are already in conflict with ‎the Civil Code. The same observations are echoed in UAE but it is the ‎Civil Code that is under criticisms in Dubai for being inconsistent with ‎these contracts and not the other way around. It is unfortunate that ‎common law practitioners would rather retain their familiarity with the ‎‎”standard” forms of contracts than adjust clauses to suit the mandate of ‎the Civil Code.‎

While contracts have the force of law between contracting ‎parties following the basic tenet pacta sunt servanda (which is now ‎enshrined in Article 171 of the Civil Code of Qatar), there is no ‎argument that provisions of the Civil Code will always prevail over ‎contract clauses. The problem lies when a clause ordinarily permissible ‎under common law is being forced into the parties with Civil Law ‎jurisdiction without appropriate adjustment of pertinent contract ‎clauses. This problem, as adverted above, is already observed in ‎Dubai since those presently shaping the legal and jurisprudential future ‎of UAE on contractual issues are lawyers with common law ‎backgrounds. UAE Civil Code has not flourished in judicial precedents, ‎a sad fate of the Civil Code, because of preference by most parties to ‎arbitration, again a common law feature dominated by common-law ‎practitioners. Even public works authorities in Dubai succumbed to ‎arbitration. This is not the case of Qatar where PWA’s GCC prescribes ‎judicial action over contract disputes.‎

Against precautionary warnings from the framers of these ‎standard forms of contract, a better approach to management of a ‎standard common law contract would be to adjust clauses to suit the ‎provisions of the Civil Code. Along this line, it is most appropriate that ‎the contract commonly observed in Qatar, the PWA’s General ‎Conditions of Contract, be re-examined against the Civil Code so that ‎appropriate changes may be introduced by those who desire to adopt ‎the General Conditions of Contract as governing contract document in ‎their projects.‎

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