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Construction Law/Time Bar on Notifications

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Question
QUESTION: If a claim has been submitted beyond the prescribed period of notification and the Project Manager has issued a reply denying and forfeiting the Contractor's right, is there any other way to reply? Reference is FIDIC Red Book.

ANSWER: Dear Lara,  
Thank you for your question. Unfortunately, I do not know which edition of the FIDIC red book you are using nonetheless,  one thing is certain,  the Qatari civil code provisions has not deprived anyone from valid entitlement under a commercial transaction which construction contracts falls. It is also to be noted that there are grounds in Fidic that also request the Engineer to consider such claims taking into consideration the effect of the lack of adherence to the notice period indicated under the contract. Let me know the Fidic edition and the date of the commencement of the contract for any additional guide you may require.  I am currently in transit at the moment and would give you the citation of the civil code when I get your follow up email.
Thanks.
Femi

---------- FOLLOW-UP ----------

QUESTION: Thank you for your reply.  Apologies for the incomplete information.  We are using FIDIC 1st Edition 1999. Would appreciate it very much if you can give me the Qatar Civil Code reference you mentioned.

Answer
Dear Lara,

Thank you once again.
The Clause that deals with claim under FIDIC 1999 - Red Book is Sub clause 20.1.
Firstly, as pointed out to you in my previous answer,the Engineer would be in error to rely only the paragraph # 2 of the provision of Sub clause 20.1. It is usually not a good professional practice to rely on part of a clause wherein the wholistic analysis of such clause has tendency of providing exemption to the rules set up in the clause. The Engineer has relied solely on the paragraph # 2 and reject your claim based on that. However, you need to point the attention of the Engineer and refer him to the provision of last Paragraph of the Sub clause 20.1 which provided an exemption to the paragraph #2. Contractor can rely on the last paragraph and request the Engineer to comply with the contractual provision of the last paragraph to review the submitted documents and make determination as required of him under the (his) administration obligation under the contract.

You need to remind the Engineer that, should he deprive the Contractor of his entitlement as allowed under the last paragraph, by solely relying on paragraph # 2; he would be acting in gross violation and deprivation of the Contractor rights under the contract as such reliance only on paragraph # 2 is not only "not wholistic" but is also "erroneous" having been (the said par #2)tagged with exemption by virtue of the last paragraph.

Secondly, applying articles 169, Law no 22 of 2004;  
(a) the last paragraph of sub clause 20.1 must be understandably construed that both parties have agreed to have an exemption to the paragraph # 2 of the sub clause.
(b) Clauses 1 & 2 of article 170 of same law provides a general rule that explains that; any contractual clause that either ambiguous or conflicting and discharging a party from his liability (like now trying to discharge the employer from paying for valid claims - which is liability) will be construed narrowly. i.e.scarcely or "not strictly" or "not rigidly" or "flexibly" or "with exception".

Hope this helps you out?

Thanks.
Femi

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Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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