MOROCCO Law and Practice Contributed by: Loris Marghieri, Dounia El Aissaoui and Julien Nouchi, Gide Loyrette Nouel
7. Construction 7.1 Common Structures Used to Price Construction Projects Parties may choose between two types of pric - ing mechanism (sometimes be combined) for construction projects: • quantity construction contracts ( marché au métré ), by which the contractor performs construction work for a price based on the quantities actually used for the work; or • lump sum price construction contracts ( mar- ché à prix forfaitaire ), in which the contractor carries out the work for a fixed and non-revis - able price agreed upon at the time of signing (under this type of contract, the contractor does not have the right to request additional payment or compensation, except in limited cases such as for modifications or when the client requests additional work). 7.2 Assigning Responsibility for the Design and Construction of a Project Different types of contractual arrangement can be adopted by the owner: • separate contracts with the design team (architects, engineers, etc) and the construc - tion contractor, in which case responsibility for the design will be assumed by the design team, while the contractor will be in charge of the work; or • a single design and construction contract ( contrat de contractrant général ) with a con - tractor, under which the contractor respon - sible for the work will also be responsible for the design. In any case, the assistance of a Moroccan archi - tect is mandatory when applying for a building permit. This architect is responsible for draw -
ing up the design plans and the application file for the building permit, supervising the proper execution of the work and assisting the owner in handing over the work, as well as issuing the final statement in order to obtain the certificate of conformity ( certificat de conformité ) or the occupancy permit ( permis d’habiter ). 7.3 Management of Construction Risk In a private construction contract, the following mechanisms are typically used to manage con - struction risks (and are freely negotiated by the parties): • Representations and warranties of the con - tractor regarding the feasibility of the project, the contractor’s knowledge of the technical, environmental and legal framework applicable to the project and its ability to carry out the work under the conditions provided for in the contract. • Holdbacks, whereby the owner retains payment of a certain amount (usually up to 10% of the contract price) to guarantee the remediation of any defects arising on the date when the work is provisionally accepted (generally, the contractor will request that a bank suretyship ( cautionnement bancaire ) be used in place of this retainer). • A performance bond, usually from 3% to 10% of the contract price, to secure the payment of any penalties that may be imposed on the contractor for a delay or breach of contract, which is normally returned to the contractor or waived following the final acceptance of the work (occurring 12 months after provi - sional acceptance of the work). • A penalty for breach/liquidated damages. • Insurance policies covering professional construction activities (civil liability insurance of contractors, or professional insurance of architects, experts, engineers, etc) and the
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