Expert: Senthil Kumar Sellamuthu - 1/18/2012

Question
In a government project, the Consultant was not paid consulting fees for 15 month, after notification to the Employer the Engineer decided to withdraw site supervision staff before the project reach substantial completion.
The question is can the employer take over the site supervision, quality control , Contractor's payment certificates, as built drawings and final measurements. if the answer is yes, what about the Engineer's liability for this part of the works.

Answer
Dear Mr. Seif,

Thanks for your Questions. Read the below Fidic - Client / Consultant 1998 Clauses.

TIME FOR PAYMENT:

Clause 31:

(i)Amounts due to the Consultant shall be paid promptly.

(ii) If the Consultant does not receive payment within the time stated in the Particular Conditions he shall be paid Agreed Compensation at the rate defined in the Particular Conditions compounded monthly on the sum overdue and in its currency reckoned from the due date for payment of the invoice. Such Agreed Compensation shall not affect the rights of the Consultant stated in Clause 27.2.

By Notice of the Consultant 27.2

After giving at least 14 days' notice to the Client, the Consultant can by a further notice of a least 42 days terminate the Agreement, or at his discretion without prejudice to the right to terminate can suspend or continue suspension of performance of the whole or part of the Services.

(i) when 28 days after the due date for payment of an invoice he has not received payment of that part of it which has not by that time been contested in writing, or

(ii) when Services have been suspended under either Clause 26 or Clause 27.1 and the period of suspension has exceeded 182 days.


Clause 16 - BETWEEN THE PARTIES:

Liability of the Consultant - Clause 16.1 - The Consultant shall only be liable to pay compensation to the Client arising out of or in connection with the Agreement if a breach of Clause 5(i) is established against him.

Liability of the Client - Clause 16.2 - The Client shall be liable to the Consultant if a breach of his duty to the Consultant is established against the Client.

Compensation - Clause16.3 - If it is considered that either party is liable to the other, compensation shall be payable only on the following terms:

(i) Such compensation shall be limited to the amount of reasonably foreseeable loss and damage suffered as a result of such breach, but not otherwise.

(ii) In any event, the amount of such compensation will be limited to the amount specified in Clause 18.1.

(iii) If either party is considered to be liable jointly with third parties to the other, the proportion of compensation payable by him shall be limited to that proportion of liability which is attributable to his breach.

As per the above Fidic clauses, you should aware the Both parties obligations and rights of act. So, check your contracts content and handle properly. If, it is not clear you can use the above clause 16.

Thanks and regards,

Senthil Kumar