Construction Law/TOC over dispute


Dear Florin,

We have a road project LUMP SUM following FIDIC 1987 fourth edition reprinted 1992.

There is a dispute between the client and the contractor regarding the contract price as the client indicated that according to the contract he can omit any work which was not executed or provided due to ''The project did not need for them at all'' and he (client) ready to compensate for any loss in profit to the contractor and according to the contract but the contractor says as long the contract is lump sum he is entitled to receive full contract price including items were not provided or executed.

NOW the problem is the contractor requested for issuing the taking over certificate

Is it recommended to issue this TOC even the above financial problem hasn’t been solved ?

Or we should not issue the TOC till the contractor states that he wont claim for any further amounts in the future and admits that the contract is closed financially on the adjusted contract price (after omission)

PLEASE advise and inforce the answer with some clauses we can use in this regards for issuing TOC as described above.


Dear M.Dzaie,

Thank you for your question.

I would say that Contract unfolding and steps to be carried out, are independent from eventual disputes that may arise.

As such, in my opinion TOC should be issued and dispute resolved separately.

In respect of omitting those works, please check the exact wording of the Clause related to Variations, as there is your answer in respect of omitting works.

I do not have that FIDIC Book with me as I am travelling over the next 3 weeks, but as long as the Employer pays the loss of profit, Contractor should have no claim, as he's getting the profit straight away without bothering to execute the works.

Because that total price is for the whole of the Works and includes his costs for executing them.

Hope that helps

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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.

Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List and of DRBF Chapter for Eastern Europe Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List Member of “” volunteers pool Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States

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