Construction Law/Employer's Claim

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Question
Dear Sir,
I am working with the consultant firm on a contract based on FIDIC 1999 conditions of Contract. The Contractor has failed to complete the Works within the Scheduled Time for Completion and time is at large. The Employer has notified under Sub-Clause 2.5 for deduction of Delay Damages. Sub-Clause 8.7 states that “ the Contractor shall subject to notice under Sub-Clause 2.5 pay delay damages to the Employer for this default”. My questions are as follows;
(i)   Should the Delay Damages be deducted just by passing the Scheduled Time for Completion or the Employer has to wait until the issuance of TOC for the Works which will define the delay period?
(ii)   If the Delay Damages are deducted before issuance of TOC and then afterward an EOT is awarded, then the Contractor is to be entitled for the compensation of the deducted amount for the awarded time period?

Regards,
UMER SHABBIR

Answer
Dear Umer,


Thank you for your question.

(i) there is no obligation for waiting until ToC is issued, expiry of Time for Completion is sufficient to start charging Delay Damages.

(ii) Yes. In case the Contract has some chances to get an  EoT, it is wise to await until that is clarified.

Trust that clarifies the matter.

Construction Law

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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

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