Construction Law/Retention

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Question
I have  a question here regarding retention money. I have a situation where the Contractor constructed the road and at the end of the project he was supposed to submit as built drawings before he can get 50% of his retention. He failed to submit the drawings he was not paid, 5 years later he comes back asking to be paid his retention and he still has not submitted the as built drawing and the road has now been extended which makes it hard for him to do the as built now.

My question is :-
  Is the Contractor still entitled to his full retention even though he has not submitted the drawings?
  Does the retention have a validity period (does it expire)?

Answer
Dear Nonjabulo,

You do not mention  the form of contract, so I will answer using FIDIC 99.  

1. All obligations should have been fulfilled with the payment of the Final Certificate.  If the Contractor had been unwilling or unable to produce the as-built drawings, then the Employer should have engaged another Contractor to do the work and paid him from the retention, returning the remainder to the Contractor.  Now you have a problem.  I would suggest that an equitable solution would be to deduct a sum equivalent to the cost of producing the as-built drawings and return the remainder to the Contractor.  

2. The question of the validity of the retention should be resolved with the issuing of the Final Payment.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

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B Sc(Hons) in Civil Engineering

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