Construction Law/APPLY OF PENALTY

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Question
I'm working as a Quantity Surveyor for the Engineer to a Contract under the Yellow Book (1999).
Two months before the Engineer issued an NCR to the Contractor, related to his fail to apply and follow the Traffic Management plan.
Since then, there has been action on behalf of the Contractor and no measures were taken. According the Particular Conditions of the Contract, a penalty is applied.
Am I obliged (as Engineer) to giving a notice to the Contractor about the penalty to be applied or not ?

Thanks in advance

Answer
Dear Konstantinos

Thank you for your question.

Firstly,  I suggest you check again the Special Conditions and see in case the Contractor fulfills its tasks, such penalty still apply, or for example,  a levied penalty is returned to them.

As well, penalty may be a two steps process, I.e. that NCR and only in case of action by Contractor to actually trigger the definite penalty.

Please thus look at these considerations and see where you are.

Hope that helps.

Secondly,  yes, you need to notify application of such penalty.  

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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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