Construction Law/payment delay

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Question
QUESTION: iam working in project under fidic 1999 -with omitting of some clauses.i had delay in advanced payment 42 day and after in 2 interim valuations 21 day,14 days how can claim for extension of time caused by the above delays - note clause 16.1+16.2 a,b,c is deleted from contract

ANSWER: Hi,
According to the Sub-clause 14.8, the Contractor is entitled, without formal notice or certification, and without prejudice to any other right or remedy, to receive financial charges in case of delayed payments.
In other words, you are entitled to financial charges for the amounts paid in delay, according to 14.8, but, the Sub-clauses mentioned by you being deleted, you are not entitled to suspend the works or to terminate the contract.
Hope it helps.
Best regards,
Alina

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

QUESTION: THANK YOU FOR YOUR ANSWER ,
CAN I CLAIM FOR EXTENSION OF TIME UNDER CLAUSE 20.1 BECAUSE OF ABOVE DELAYED PAYMENTS ,AND HOW I CAN DO THAT WITH DELETED CLAUSES 16.1,16.2 A,B,C WHICH NOT ALLOWED ME TO SUSPEND THE WORK OR  EVEN TO SLOW DOWN ,CAN U ADVISE ME TO CLAIM THAT UNDER CLAUSE 16.2 D  OR BETTER TO TERMINATE THE CONTRACT UNDER CLAUSE 16.2.D
THANKS IN ADAVACE

Answer
You cannot claim for extension of time. There is no link in the Contract, other than in 16.1 and 16.2 between payments and EOT. You could ask EOT if those Sub-clauses were not deleted.
16.2 (d), i.e. the Employer did not fulfill substantially his obligations refers to not giving the possession of site and asking the Contractor to do the works, or not paying for a long period of time - 21 days, 14 days of delay do not seem to be such substantial failure. To see what "substantial failure" means, since these is no such definition in the FIDIC contract, you should find the explanation/definition into the law applicable to your Contract. If, according to the law, paying with 14 or 21 days in delay is considered a substantial failure, then you can apply 16.2 (d). You CAN, but you are not OBLIGED. Termination must be, in any case, the last solution for the Parties, because it is very harmful for everybody.
Best regards,
Alina  

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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