Construction Law/IPC issueance


Dear Sir,
We are supervising consultants for the road project and using FIDIC 2005 MDB Edition. The Contractor submitted the IPA to the Engineer for review and approval on Dec.13, 2012, however we rejected by letter on Dec.20, 2012 to certify it due to exaggeration of production figures and including unjastified claims in the IPA. according to the contract we should issue an IPC withing 28 days after the receipt of the IPA. On 22.01.2013 the Contractor re-issued the IPA removing unjastified claims requested by us. Howeever the Contractor counts the issue date from Dec.13 + 28 days, the deadline was according to the Contractor Jan.10, 2013.
Well my question is: Is the Contractor's argument correct? Are we in breach of contract, ie.28 days time bar?
Thank you in advance.

Hello Mansur,

Thank you for your inquiry.  Based on the facts stated in your inquiry, I do not believe your company – a supervising consultant acting under FIDIC-2005-MDB, is in breach.  Here is why.  The 28-day period associated with review of any submittal is allotted to give the Engineer to properly consider the facts in the Interim Payment Application (“IPA”) and make its recommendation in the form of Interim Payment Certificate (“IPC”).  When the contractor changes the facts / figures in a new revision of the submittal, the review process will commence again from scratch, unless the changes are indeed de minimus.  Besides, even if the Contractor wins a purely rhetorical argument characterizing the Engineer’s Representative’s conduct as a breach, the breach itself appears to be minor, and thus does not appear to attract any tangible damages due to the Contractor – this seems to be just posturing.  Such bickering usually is commenced to put the Engineer’s staff on notice to be a little more lenient with irate contractor’s IPA – a sort of yelling at the referee to soften him up during the next foul play call.  It seems that two sides should try to improve the working relationship on the site-team level, so that bickering about inconsequential terms does not get in a way of review process.  However, if the delayed review of IPAs turns to be systematic, and can be proven on-site records, it may reach the point where the minor breach(es) will amount to tangible claim of delay and may even attract damages due to the Contractor.  It is all the matter of judgment exercised on site.  I hope this is helpful, and is responsive to your query.


Gerry Sverdlin, PE, Esq.

Construction Law

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Gerry Sverdlin


Questions I can answer or provide assistance to reflect the following subjects: contract terms and conditions, interpretation of ambiguity, construction management and practices, claims for costs and time, variation / change orders, disputes, dispute resolution techniques and organizations, claims for extra work or materials, delay analysis, disruption or interference, defective design and negligent supervision, construction risks and mitigation, warranties and insurance. Questions I can NOT answer: too numerous to list here.


Mr. Sverdlin provided over 20 years of services in dispute resolution and expert opinion of complex construction claims for extra work, delay & acceleration, defective design & installation, unauthorized deviations, differing site conditions, productivity loss, labor & material shortage, owner’s interferences, force majeure, bonding, warranties and insurance coverage. Mr. Sverdlin participated in dispute resolution proceedings regarding 10 mile sub-aqueous outfall tunnel at Deer Island Treatment Plant – Boston Harbor Project, and claims arising out of construction of the South Boston / South Bay Interchanges for the Central Artery/Tunnel Project in Boston, Massachusetts, USA, and multiple proceedings Middle East. Specialties: Mr. Sverdlin established expertise in construction contract preparation under EJCDC, AIA, FIDIC and agency-specific bespoke contract frameworks: procurement administration, resolving defects in scope of work coverage, specification and estimates, change order processing, project controls & cost recovery. Engineering practice encompasses design & procurement management of highway & rail transportation systems, wastewater treatment and drainage networks, key performance indicator regimen.

2011 - CIArb Member Grade 1999 - Attorney at Law – Massachusetts Bar, BBO # 642980 1992 - Registered Professional Engineer - PE: Lic. MA-36839 - Civil Affiliated Memberships: MBA - Massachusetts Bar Association DRBF - Dispute Review Board Foundation TASA - Technical Advisory Service for Attorneys

2010 - 2011 - American University in Dubai -Grad. Sch. of Business Administration Construction Contracts, Means & Methods, Claims & Changes, Project Controls March 2009 - Chamber of Commerce, Colombo, Sri Lanka – Construction Management Seminar Changes & Claims, EOT/Delay Damages, Loss of Productivity – Measured Mile 2000- 2007– Boston Architectural Ctr & Wentworth Inst. of Technology - Construction Law 1991- 1993 - Northeastern University, Boston, MA – Land Surveying, Sewage Disposal System Numerous continuing education specialty courses Suffolk University Law School - Juris Doctor, law -1993 – 1997 Northeastern University - MS, Construction / Public Works Management - 1993 Polytechnic University - BS, Civil Engineering 1982 – 1985

Past/Present Clients
Representative Projects Dubai International Airport UAE Muscat & Salalah Int'l Airports Oman South River Dredging Mechanical Scituate, MA Permitting / Boundary Dispute (Title V) Worcester, MA Hazardous Material Site Assessment New Bedford, MA Groundwater Pollution Monitoring Burlington - Woburn, MA Hazardous Material Disposal - Site Clean-up Wrentham, MA Sewer Rehabilitation Project – STEP Abu Dhabi, UAE Dubai Metro - Road & Transportation Authority, Dubai, UAE Boston Harbor Project - Deer Island MWRA - BHP Winthrop, MA 1,200 MGD Waste-Water Treatment Plant Doha North Sewerage Treatment Works Ashghal, Doha, Qatar 254K m3/d STP, 25-km triple force mains, 33-km Interceptor Sewers 10,000 l/s PS Central Artery / Tunnel Project - MHD / MTA Boston, MA 116 lane-miles Old Colony Railroad - Commuter Rail (Boston, MA 70+ mi) Cherry St. Reconstruction Full-Depth Bridgewater, MA 2.1 mi Scenic Roads Reconstruction Town-wide Wayland, MA 8.7 mi Strawberry Hill Rd Reconstruction Full-Depth Concord, MA 1.7 mi Craigsville Beach Rd Reconstruction Full-Depth Hyannis, MA 3.4 mi Water Main Replacement Southborough, MA EMAAR – Gulf III Towers, Dubai, UAE Mixed-Use Hi-Rise Peabody Properties Residential Hi-Rise Lynn, MA Bristol Properties Shopping Mall Attleboro, MA May Institute (children w/special needs) Institutional Randolph, MA Bear Hill Executive Park Commercial Waltham, MA Prospect Hill Executive Park Commercial Waltham, MA Residential Community Subdivision 128 lots Hopkinton,MA Retirement Community Subdivision Residential – 126-lots Warren,MA Independence Mall Retail Kingston, MA Mashnee Village Subdivision Residential – 54-lots Buzzards Bay, MA Hyannis Industrial Park Heavy Commercial

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