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Construction Law/referring claims to dispute board

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Question
Sir,
In fidic contracts if a claim has been given under 3.5 and the engineer gave its determination . the engineer rejected contractor's claim. lets say the claim was claim no.2. Claim no.2 has continuing effect and if the contractor submits claim no.6 as continuity of claim no.2 can the contractor refer its claim no.2 to the Dispute Board for its decision or will the whole process again have to be repeated as in getting 3.5 and then amicable settlement . in our case we would like to submit claim no. 2 to the dispute board.
your earliest response will be highly appreciated .
thanking you and best regards
satyam

Answer
Hi Satyam,

Namaste!

It should have been easier to analyze if you have provided the reason of rejection of Claim No. 2. Also, the FIDIC Form of Contract was not specifically identified (i.e. Red, Yellow, etc.).

Notwithstanding the foregoing and with an intention not to delay the information which may aid you in decision making, I am providing below my advice based on my understanding on the content of your question.

Referring to FIDIC Red Book (Conditions of Contract for Construction), First Edition 1999, hereunder is the chronological order of claim process (other FIDIC books may have similar approach):

a.   Event Occurrence 
b.   Notice of Claim (within 28 days from “a”) 
c.   Fully Detailed Claim (within 42 days from “b”) 
d.   Engineer’s Response (within 42 days from “c”) 
   In your case, the status is “Disapproved”, assumed to have received detailed comments for reason of disapproval
e.   The Parties agree to refer the matter to DAB 
    Neither Party shall consult the DAB on any matter without the agreement of the other Party
f.   DAB Decision (within 84 days from “e”) 
    If dissatisfied or no decision given by DAB
g.   Notice of Dissatisfaction (within 28 days from “f”) 
h.   Amicable Settlement 
i.   Arbitration

Claim No. 2 (Start with Step “e”)
Yes, the Contractor after agreement with other Party may refer his Claim No. 2 to Dispute Adjudication Board (DAB), provided however that the Contractor fulfilled his entire obligation and Engineer’s requirements under contract (i.e. provision of detailed particulars and justification and met the durations set out).

Claim No. 6 (Start with Step “b”)
You may raise this Claim independently (Preferred). However, if it is something you cannot separate from Claim No. 2, then just raise an updated Claim No. 2 and start with Step “c”.

Finally, I would suggest to try to settle this issue within the Parties to create a healthier relationship with other parties. Let us first evaluate the benefit of raising the claim to DAB against its consequences (i.e. potential expenses for DAB appointment, relationship with the Engineer, etc.).

Kind regards,

Rofel Ningal

Construction Law

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Rofel Ningal

Expertise

Questions related to Construction Law, Conditions of Contract, Contract Terms & Conditions, Claims, Contract Administration, etc.

Experience

Having more than 10 years extensive experience in international companies, including working in the UAE, Qatar and Philippines, both for private and public sectors, such as, Government, Project Management, Consultancy and Construction provide a wider perspective in analyzing the issues related to Construction Law and the like to provide advice in a fair and reasonable manner, in accordance with the applicable Contract Terms and Conditions. The hands-on experience I had for preparing cost proposal for variations; daily correspondences protecting the rights of my organization under contract; preparation and finalization of contract/agreement; preparation, negotiation and finalization of claims for extension of time and associated cost, etc. will be useful to understand the details of every question asked. With experience working in a project administered by FIDIC Form of Contract (Red and Yellow), Public Works Authority (Qatar) Conditions of Contract, etc.

Organizations
Philippine Institute of Certified Quantity Surveyors Philippine Institute of Civil Engineers

Education/Credentials
BSc in Civil Engineering - West Negros University MBA in Construction (Units only) - Manchester Business School Worldwide

Awards and Honors
Licensed Civil Engineer at the age of 20

Past/Present Clients
Public Works Authority (Qatar), Roads & Transport Authority (UAE), Qatar Foundation (Qatar), Qatar Real Estate Investment Co., ALDAR Properties (UAE)

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