I am seeking your advice on the attached matter:
1. If a contractor fails to remedy defects under Clause 11.4 (a) of FIDIC and the employer writes to the contractor stating such but includes in his letter the following.
“ the cost to remedy and complete the outstanding works detailed in previous letters, in the amount of $216,000.00, this value will deducted from your valuation balance of works and from the overall contract retention.”
2. There was no Termination Letter stating any Clauses.
3. The contractor submitted his claim twelve (12) months later for works completed inclusive of retention less the works by another contractor ($216,000.00) as per the wording in the correspondence as quote in item 1 above.
4. The employer rejects claims based upon clause 20.1
5. The contractor’s failure to complete was based on the fact that the employer had given the contractor additional works (variations) which he had completed but the employer failed to pay because he was tardy in his approval of the costs. He has since approved the cost of the variations, but is still insisting on Clause 20.1
What remedy or contractual clause is there available to the contractor?
You kind assistance would be greatly appreciated.
Greetings and my thanks for the question
Very briefly,i can asses from the above noted 5 paras as follows
1 TO 4: it is a time barred claim and the Engineer is not bound take further action on it
5 : It is accepted norm in construction industry that Employer do not take benefit of his own mistakes and as such you have a valid case for review by the client .I suggest you file a fresh claim in a consolidated form for the grounds mentioned in para 5 WITH NEW WORKING AND figures so that it may appear a new claim / concluding claim before finalization of accounts.This WILL satisfy both sides as approving costs at this late stage the employer has already agreed with your argument