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Construction Law/Request for replacement of Contractor


Dear Sir,
we are working as Engineer on a Project.
The Contractor, before we give them notice the Commencement Date, asked the Employer to be entitle to let the Works be executed by a Company of which they are the majority shareholder, owning approx. 95% of the shares.
The Employer asked us to support them in deciding if they can accept the Contractors request and how they should answer.
Moreover, if they accept, in the name of who (the Contractor or its owned Company) the Advance Payment Guarantee and Performance Guarantee must be drawn up?

Thank you very much for your help.
Best Regards,

Enrico Odorisio

Dear Enrico,

Thank you for your question.

It is not a matter of Conditions of Works Contract, but of procurement procedures/ law. If that allows to actually "novate" the contract.

If the procurement allows it, Employer will need to contact a local lawyer for the proceedings.

But coming back to the procurement procedures, you must check if that is possible or not.

If it's public procurement, most probably not.

If yes, contract must be novated/ or assigned to the other entity and then, that entity becomes the Contractor and takes over all rights and obligations, i.e. will take the Advance Payment and will issue the Performance Guarantee.

But sure enough, don't give any advance until clarified who remains the Contractor.

Hope that helps.

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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.


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.

Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List and of DRBF Chapter for Eastern Europe Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List Member of “” volunteers pool Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States

- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme ( - FIDIC Accredited Adjudicator

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