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Construction Law/EOT as per condition precedent

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Question
I am working on power plant project and subcontractor is delayed for E&M works because of delay in delivery of civil works from our side i.e. Main contractor. Condition precedent to claim EOT and cost is to give a notice to contractor of the circumstances which is delaying subcontractor within 7 days of such delay first occurring.

My Question is?
1-Subcontractor did not send any notice in timely manner i.e. 7 days, however we have received a claim notice after 20 days of delay. Is subcontractor eligible for claim although he could not send the notice within agreed time of 7 days

Answer
Dear Mohammad,


Thank you for your question.

The straight forward answer is NO!

BUT! That is an extensively debated issue worldwide and prior rejecting a claim as time barred, one must be very careful and take into consideration several aspects, including:

- other contractual provisions, such as obligation to collaborate and help the contract to be smoothly implemented. As Main Contractor caused the trouble themselves, you may be in a delicate position.

- law of the country: are the rights extinguished just by missing that 7 days deadline?

- relationship with sub-contractor: would it help you to deny their entitlement, on that basis?

You did not indicate what kind of conditions of contract are you using, but in case of a dispute adjudication under FIDIC, do not be surprised if an adjudicator would decide to accept sub-contractor's claim.

Hence, I believe that in fact, there is no straight forward answer, but one must analyse the matter on a case by case basis and consider all intervening factors.

My personal view is, try to settle it. They are right, you have a good bargaining position ...

Hope that helps.

Construction Law

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Florin NICULESCU

Expertise

Questions 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

Over 20 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. Claims/ Contract management, Disputes adjudication, Arbitration.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member 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 Former member 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) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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