AboutFlorin NICULESCU Expertise Question related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions.
Can also answer questions in Romanian.
Can not answer improperly formulated questions.
Experience Some 15 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes.
Organizations -1.
Fellow of Romanian Professional Association of Roads and Bridges;
Fellow of Romanian Inter-Ministerial Council for Road Safety
Fellow of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com
Currently supporting establishment of Global Road Safety Partnership Romania
Fellow of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r
Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914
Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com
Education/Credentials - Graduate in 1994 the Construction Institute
- Graduate of several FIDIC,Procurement and other courses
- Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html)
Past/Present Clients - Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Development, Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey and Croatia
- Numerous Western based private consultancy companies
Expert: Florin NICULESCU Date: 7/18/2008 Subject: Procedures for Contract Termination by Owner
Question QUESTION:
Question:
What are the steps and the reasons as per FIDIC clause for contract termination by the Owner ?
Note: the contract is between an Owner and a Civil Contractor
What are the clauses 65.6, 65.7 and 65.8 for the releveant reasons
Regards
ANSWER: Dear Tom,
Thank you for your queries.
The answer to your first question is in Sub-Clause 63.1, it gives you the reasons and steps, i.e. notice and termination in 14 days. FIDIC '99 foresees some cases of immediate termination too.
As for the other query, I am not sure I understood what you meant.
I assume you're asking if those reasons are relevant for terminating the contract:
- 65.6: Contractor has to try continuing its work, until the Employer terminates the Contract. Unfortunately, the manual is silent on what if the Employer himself is to busy with the war, or not able because of it, to terminate the Contract, nor what happens if the war is too sudden and violent for allowing termination, etc. I can only assume the Contract is to be considered as terminated de facto, or at least suspended.
- 65.7: think that is quite clear, it definitely not constitute a reason to terminate, it says what to do after termination.
- 65.8: similar as above.
Hope I answered your question, but in case my guess re second question was not as good, please do come back with clarifications and will reformulate my answer.
---------- FOLLOW-UP ----------
QUESTION: Thanks Florin, but could you advice me please about what these clauses 65.6, 65.7 and 65.8 say? - I don't have them.
Question 2:
Can an Owner terminate a contract with the contractor because of delay ?? although the contractor is about 80% progressing in work, and the Owner is in delay of due payments to contractor.
Thanks
Answer Hi Tom,
Welcome back!
Are you telling me you're running a contract and you don't have the contract clauses?!?!
65.6 - Outbreak of War
65.7 - Removal of Contractor's Equipment at Termination
65.8 - Payment if Contract Terminated.
I don't have that version of FIDIC in electronic format, but if you write me an e-mail on my contact address (see autosignature), I can send you the scanned page. But you'd need the whole book.
As for your second question, why do you want to terminate??! I understand the Contractor did not get the money for the works he carried out, highly likely that's a reason why he is late, and you want to terminate the contract??!?!
Mind you, in case of late payments, Contractor is entitled to slow down the woks and you bear the consequences!
Briefly, the answer is NO!
Even if the Contractor would have been paid, termination would still not be possible, except in case of some Special Conditions dealing with that.
