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Construction Law/Extension of Time for Subcontractor


Good day Sir,
My question is: can the Subcontractor get an extension of time from the Main Contractor if he was truly delayed by (Employer/Contractor/Other Subcontractors)even if this delay did not result in a delay to the whole project? i.e. the Main Contractor did not get an extension of time from the Employer for that same cause of delay.
Or is the Subcontractor only entitled to an extension of time when the Main Contractor is entitled to it too?
Lastly, if the Main Contractor inserted a clause in the Subcontract to prevent the Subcontractor from getting an extension of time unless he, the Main Contractor, gets it from the Employer (Back to Back), don't it look too harsh on the Subcontractor? can one dispute this clause's validity?
Thank you for your time
Best Regards :)

Dear Abed,

Thank you for your question.

If the Subcontracting Agreement does not provide otherwise, indeed, Subcontractor should get such an EoT, regardless if the Main Contractor did obtained or not.

Especially, if the Subcontractor has been delayed by the Main Contractor, or some of his other subcontractors. In such cases, it is not surprising that Main Contractor does not get and EoT.

If, on the other hand, the Subcontracting Agreement does provide for such a back-to-back EoT, then that is what the Subcontractor has knowingly agreed when entering into the Subcontracting Agreement and if it looks to harsh or not, that is no longer to be discussed at this moment, as it should have been assessed at the time of signing the Subcontracting Agreement.

The only possible analysis may be made eventually under the applicable law, which in some countries allow for an "onerous" contract or clause to be invalidated.

I assume such provision can not qualify to be invalidated under such eventual law, as Subcontractor has had all chances to become aware of it and assess the potential risk, prior signing the Subcontracting Agreement. But one may never know, may worth seeking advice from a local lawyer.

Hope that answer your question.  

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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.


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