Construction Law/Extension Of Time

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Question
QUESTION: Dear Mr. IRVALI,
We have two separate contracts; the first one is over and the second one is about to finish, but in both of them the contractors failed to complete their scope due to their weak performance and about 30% due to the Employer's procedures, my questions as the Engineer:
1. If the contractor did not submit his claim according to clause "20.1", what shall the Engineer do, shall he officially inform him about the expiry of the contractual period?
2. Shall the Engineer notify the other contractor about the contractual expiry date in advance or the Engineer should wait for the contractor's claim.
3. In this case and if the contractor submit his claim according to clause 20.1 and the Engineer reject his claim, how the contractor can extend the performance guarantee without getting EOT.

ANSWER: Dear Izzaddin
Hello
I am taking the opportunity to reply your question as per Conditions of FIDIC;
1. If the contractor did not submit his claim according to clause "20.1", what shall the Engineer do, shall he officially inform him about the expiry of the contractual period?

-  If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim.Yes The Engineer will inform to the contractor about the expiry of the contractual period.

2. Shall the Engineer notify the other contractor about the contractual expiry date in advance or the Engineer should wait for the contractor's claim.

-  The Engineer should notify the contractor about the contractual expiry date in advance.
 
3. In this case and if the contractor submit his claim according to clause 20.1 and the Engineer reject his claim, how the contractor can extend the performance guarantee without getting EOT.
-  If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment, under any Clause of these Conditions or otherwise in connection with the Contract, the Contractor shall give notice to the Engineer, describing the event or circumstance giving rise to the claim. The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance.The performance guarantee should be extend up to completion of work plus Defect Liability Period,if any;
I hope this will help to you.
With best regards,


Sanjay Khandelwal

---------- FOLLOW-UP ----------

QUESTION: Dear Sanjay,
Thank you for answering my queries, however, i would like to ask for further clarification about item no. 2, is it contractually an obligation for the Engineer to notify the Contractor about the contract expiry date? well, as i know, it is the Contractors responsibility to keep the project Program updated and he knows very well about the contract expiry date, therefore, in case that the Engineers did not notify him, is there any legal responsibility for on the Engineer? or can the Contractor claim that he is not being notified, therefore, he can consider himself not aware about the expiry date?

Thank you in advance

Answer
Dear Izzaddin
Hello
It is my pleasure to listen you again.Regarding your query;
Is it contractually an obligation for the Engineer to notify the Contractor about the contract expiry date? well, as i know, it is the Contractors responsibility to keep the project Program updated and he knows very well about the contract expiry date, therefore, in case that the Engineers did not notify him, is there any legal responsibility for on the Engineer? or can the Contractor claim that he is not being notified, therefore, he can consider himself not aware about the expiry date?


- Engineer has no legal responsibility to notify the contractor, as per the provisions of contract;
the Engineer has no authority to relieve either Party of any duties, obligations or responsibilities under the Contract.Contractor can not claim that he is not being notified.
If the Contractor fails to give notice of a claim within such period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim. Otherwise, the following provisions of this Sub-Clause shall apply.

The Contractor shall also submit any other notices which are required by the Contract, and supporting particulars for the claim, all as relevant to such event or circumstance.
The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may apply to a claim. If the Contractor fails to comply with this or another Sub-Clause in relation to any claim, any extension of time and/or additional payment shall take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under the above paragraph of contract provisions.
I hope now this will help to you.
With best regards,

Sanjay Khandelwal  

Construction Law

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Sanjay Khandelwal

Expertise

I can answer related to the various construction contracts forms related with disputes and claims.Expertise in to evalute the extension of time,cost and profit claims.I can answer regarding the contract management in civil works.

Experience

I have the experience of construction industry, as a consultants,executor of construction activities of infrastructure development like road and buildings. I have the experience of various software related to design of highways and quantity evaluation.

Organizations
I am life member of Indian Road Congress,INDIA I am presently employed with M/s Lion Engineering Consultants,INDIA

Education/Credentials
My educational qualifications are as below: I am engineering graduate from MITS, INDIA,1987 I have completed my Post graduation from NIT,INDIA,2011

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