You are here:

Construction Law/Expropration and Right of Access to the Site

Advertisement


Question
Hello Florin,
I’m working for the Contactor in one contract according to Fidic 2010. We received the right of Access to the Site not directly from the Employer but through a letter from the Engineer.
After four months we are suffering the lack of working area because of expropriation issues. The Employer issues the expropriation Law but didn’t compensate the owners up to now.
The Contract is copy / paste of Fidic and not mentioned about Expropriation, but by Albanian law is Employers responsibility.
The Engineer rejects my first Notice to Claim under Clause 20.1 against Clause 2.1, because passed more than 28 days from site handing over.  
I have 2 questions,
1.   Can the employer give the Right of Access to the Site through the Engineer and not directly to the Contractor?
2.   Was the right decision from the Engineer? Is the Expropriation a Continuing Effect? Can I chose just a date 28days before and give a Notice to Claim, or is better to prepare a new Claim for EoT and Additional Cost under 20.1 considering the non expropriated buildings as a DISRUPTION, after given a Notice to Claim before specifying two random buildings?

Thanks,
Dritan

Answer
Dear Dritan,


Thank you for your question.

I assume it is the Harmonised (Pink Book) FIDIC.

Yes, Engineer can hand over the site, on behalf of the employer, providing he is mandated for that, which means the legal obligation was passed to the Engineer. You should have received a letter from the Employer, at the beginning, indicating who is the Engineer, Engineer's Representative and his mandate.

The fact that owners were compensated or not, should not be your problem, you should only be concerned if the site was or was not handed over.

You indicate there was a handing over. Does it say in that handing over that ALL site is handed over to you?

If yes, then it means the Employer has given you full possession of site, but understand that in reality, when starting to work, you discovered that your access in certain was not possible.

Then, I assume you informed the Engineer/ Employer on the matter. In principle, that should be the moment when the 28 days notice deadline starts, not when the Employer/ Engineer has given you the notification of the site possession.

I also hope you have a proper base line workprogramme.

If yes, you should have analysed when your workprogramme is affected. That moment, when you start being affected, could be another moment when the 28 days deadline starts.

Obviously, up to you to wisely play with the most convenient date.

And yes, that is a continuous effect reason for a claim. And even if you have missed the deadline for issuing the notice of claim, you should at least have preserved your entitlement from the moment that was 28 days before you have issued your notice of claim.

But it also depends on how you formulated your notice.

and finally, no, I don't think is a good idea to issue another claim related to site possession, as you most likely would invalidate the first one, acknowledging it is not correct.

I trust these will answer your queries, but should you still have some uncertainties, please do come back to me with additional details.

Good luck!

Construction Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


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

©2016 About.com. All rights reserved.