Construction Law/Right to "Refute"

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Question
Dear Jonathan,

We are using the FIDIC MDB 2010

We, the Contractor, recently refute the Engineer's statement, through written correspondence, and the Engineer wrote us back that:

"... the Contractor do not have any right to "refute" the Engineer's statement under any provision of the Contract... The Contractor has every right to counter the Engineer's opinion..."

I just want to ask if the Engineer is correct in that statement. Moreover, I understand refute and counter has the same meaning, refute is usually a legal term, please comment.

Answer
Dear Michael,

Why did you refute? And what was the Engineer’s “statement”   all about?

Please take note that the word “statement” under FIDIC MDB is defined under subclause 1.1.4.12 . Please have a look.

Now, if you mean notices, requests, determinations etc. under subclause 1.3 and or Instructions of the Engineer under subclause 3.3 or determinations under subclause 3.5 when you say “statement” then I must say that, the Contractor has the right to submit claims, notices, letters by referring to the conditions of the contract. I must add that, the Contractor should always comply with the instructions coming from the Engineer or from his delegated assistants.

You can always submit claims, notices, letters and or demonstrate your contractual rights by referring to the Conditions of Contract.


Regards,

Jonathan L. Peralta

Construction Law

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Jonathan L. Peralta

Expertise

Questions relating to construction claims, Extension of Time, Variations, Interim Payment and delay analysis under FIDIC Form of Contracts.

Experience

Experience in the following sectors: buildings, residential, infrastructure, civil and marine works. Have worked for different international contractors in Myanmar, Vietnam and the Philippines.

Organizations
AACEI, U.S.A., Dispute Resolution Board Foundation,U.S.A., ASCE, U.S.A., PICE,Philippines

Education/Credentials
Bachelor of Science in Civil Engineering, Registered Civil Engineer in the Philippines

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