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Construction Law/Delayed Instructions and LD

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Question
Dear IRVALI,
We are Main Contractor for a Road Project which refers FIDIC 2005 Harmonized Version.
There are causes for delays due to delay in issuance of Instructions. We have notified each and every case in time as stipulated in Cl 20.1.While executing these works parallel to works in other areas  now the Engineer exclude these cases-delayed instruction matters  for completion  before TOC and asked us to carry out during DLP.
1. Can they exclude only their delays and impose us LD for highlighting our delays (even same items-foot walks is an item the Employer needed to be completed. We had to skip some areas adjacent to problematic areas until instructions are received. Once the same is received and exclude from TOC, they try to apply LD sating that adjacent areas are not completed.
2.If EOT is not granted as it is not necessary since TOC is issued and then how we can recover additional expenses( prolongation cost ) for completing items in these delayed Instructions.
Please explain the contractual situation and how that to be handled.
Thank you.
Rohana

Answer
Dear Rohana,

It is clear case that I refer to Clause 1.9, "Delayed Drawings or Instructions" which stipulates that;
The Contractor shall give notice to the Engineer whenever the Works are likely to be delayed or disrupted if any necessary drawing or instruction is not issued to the Contractor within a particular time, which shall be reasonable. The notice shall include details of the necessary drawing or instruction, details of why and by when it should be issued, and the nature and amount of the delay or disruption likely to be suffered if it is late.

If the Contractor suffers delay and/or incurs Cost as a result of a failure of the Engineer to issue the notified drawing or instruction within a time which is reasonable and is specified in the notice with supporting details, the Contractor shall give a further notice to the Engineer and shall be entitled subject to Sub-Clause 20.1 [Contractor’s Claims] to:

(a) an extension of time for any such delay, if completion is or will be delayed,
under Sub-Clause 8.4 [Extension of Time for Completion], and

(b) payment of any such Cost plus profit, which shall be included in the Contract
Price.

After receiving this further notice, the Engineer shall proceed in accordance with Sub-
Clause 3.5 [Determinations] to agree or determine these matters.
However, if and to the extent that the Engineer’s failure was caused by any error or delay by the Contractor, including an error in, or delay in the submission of, any of the Contractor’s Documents, the Contractor shall not be entitled to such extension of time, Cost or profit.

Clause 3.5, "Determinations" stipulates that, Whenever these Conditions provide that the Engineer shall proceed in accordance with this Sub-Clause 3.5 to agree or determine any matter, the Engineer shall consult with each Party in an endeavour to reach agreement. If agreement is not achieved, the Engineer shall make a fair determination in accordance with the Contract, taking due regard of all relevant circumstances.
The Engineer shall give notice to both Parties of each agreement or determination,with supporting particulars, within 28 days from the receipt of the corresponding claim or request except when otherwise specified. Each Party shall give effect to each agreement or determination unless and until revised under Clause 20 [Claims,Disputes and Arbitration ].

Therefore if the Engineer does not reply positively to your claim in this regard, and make the case disputed you can refer it to Arbitration.

I hope above clauses are clear for your case.

Best Regards

IRVALI

Construction Law

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ALI IRVALI

Expertise

FIDIC, Arbitration Procedures, Claim Management, Project Management.

Experience

I have experience of working at 6 countries in MENA region (algeria, Libya, Saudi Arabia, Oman, Pakistan)as the Regional Director and General Manager of a construction company. I have experience on various applications of FIDIC and construction law, arbitration procedures, claim management, project management.

Organizations
CEO of TURCON Construction presently. www.turcon.com.pk

Education/Credentials
M.S. Civil Engineer, Various Courses on Project Management, Seminars on FIDIC.

Past/Present Clients
National Highway Authorities of various countries, Water and Power Development Authorities, Karachi Port Trust, etc.

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