Construction Law/notice and particulars of the Employer's Claim
2010 FIDIC MDB Harmonized Conditions of Contract
In accordance with Sub-Clause 2.5 GCC, “the Employer or the Engineer shall give notice and particulars to the Contract”. This Sub-Clause further states “The notice shall be given as soon as practicable and no longer than 28 days after the Employer become aware, or should have become aware, of the event or circumstances giving rise to the claim”
I have following questions:
(i) Is the Engineer obliged to give notice and particulars (substantiation of amount and/or time) to the Contractor on behalf of the Employer and then himself proceed under Sub-Clause 3.5 GCC to determine this matter?
(ii) This sub-clause puts a time bar of 28 days on the Employer or the Engineer to give notice of the event or circumstance. Is the failure to give timely notice will entitle the Contractor to discharge from his responsibilities in connection with the claim as compared to Contractor’s notice claim provision in Sub-Clause 20.1?
(iii) If the Engineer gives notice and substation of the Employer’s Claim, then how he is considered to give fair determination on his own produced claim?
(iv) Sub-Clause 2.5 did not expressly require submitting proper fully detailed claim as compared to Contractor’s Claim instead it required to submit notice and particulars. My question is that is the Employer obliged to submit claim in the head of “Employer’s Claim” if he considers entitled to additional time or money?
Dear Qasim Zeeshan
I am trying to reply your questions regarding sub clause 2.5( FIDIC MDB Harmonized Conditions of Contract 2010 );
1. Sub clause 18.104.22.168 ENGINEER the person appointed by the Employer to act as the
Engineer for the purposes of the Contract, means the notice can be given by the Engineer on be half of the Employer and exercise the authority to proceed for the determination under sub clause 3.5.
2. Time bar are given in the contract to get aware regarding any claim for the both parties but it doesn't means to discharge from the responsibility under the contract in connections with claims.
3. The particulars shall specify the Clause or other basis of the claim, and shall include substantiation of the amount and/or extension to which the Employer considers himself to be entitled in connection with the Contract for which Engineer has given the notice. The Engineer shall then proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine (i) the amount (if any) which the Employer is entitled to be paid by the Contractor. In the contract Engineer duties are he should be impartial during the determination.
4. Employer's claim head is not to oblige to the Employer rather head for to notify to recover the money or to extend the time on cause of fault by the contractor and Engineer has the authority to give the determinations and act impartial.
I hope this will help to you.
With due regards