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Construction Law/The notice of default and the Engineer' Decision

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Question
Dear Sir,

We have a contract based on FIDIC 1987. the Contractor sent a notice of default under 69.1 to the Employer due to a delayed payment. the contract does not entitle the Contractor to issue such notice because it requires two consecutive payments which is not the case here. now the question is: if the Employer refers this issue to the Engineer for his decision under 67.1, can the Contractor state that the 45-days period does not stop (knowing that this period is not applicable because the notice is not right) for the period during which the Engineer issues his decision?

thanks.

Answer
Dear Jad,

I see nothing about two consecutive payments in clause 69.1 a).  Perhaps there is something in the particular conditions.  Clause 67.1 refers to 84 days for an Engineer's Decision, not 45 days. The contractor can say what he wants, but will he be correct contractually.  

My advice would be to make sure that the Contractor is paid on time in accordance with Contract.  Money is the oxygen of construction.  The body dies without oxygen and a contractor goes bankrupt without money.  If you do not pay him, the first response to any comment about progress is that I don't have the money to pay my suppliers so I cannot get the necessary materials.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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