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Construction Law/Advanced LD clause 47.3 47.4

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Question
we have completed work up to last approved VO, the next VO is approved by department conditionally. conditions are to recheck the quantum of work and review the classification of roadway excavated materials. we were submitted work program for extended period. the engineer did not issue approval letter of the work program. Now The engineer going to impose LD under clause 47.3 base on that submitted work program.
we would like to reply him on three basis:-
i) the VO is not approved so that is not in our scope of work
ii) the work program not approved by the engineer so that program is not valid.
iii) we shall submit our work program after the approval of VO.
Please suggest the best.
Thanks.

Answer
Dear Farrukh,


Thank you for your question.

As long as the original works are finalised, you should not be imposed LDs.

But formally, indeed, you did not receive the Taking Over Certificate.

i) As long as you were instructed to execute the works under last VO, you must do it, hence you can not say these works are not under your scope of works.

ii) if the Engineer has failed to consent to the latest Work Programme, that is a failure that goes together with the failure of having issued the latest VO.

If a reasonable time has passed since you submitted the revised Work Programme and Engineer did not consent to it, that's a failure.

Rather than clutching to the idea that last Work Programme is not valid, you should better notify both failures of the Engineer and claim for related Extension of Time and related costs.

iii) Why?! I understand you did submit your revised Work Programme. If the Engineer did not react it is his failure, why would you submit again that programme?

In conclusion, just go ahead with executing instructed works and claim for related EoT and costs.

If the Employer/ Engineer apply LDs you'll counterfight it with that claim.

Trust that answer your quesry and will help.

Good luck!

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Florin NICULESCU

Expertise

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.

Experience

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.

Organizations
Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers www.aric.org Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List www.drb.org and of DRBF Chapter for Eastern Europe http://dabdrb.googlepages.com Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List http://www.sidir.pl/sidir/index.php?action=czlonkowie&a2=r Member of “AllExperts.com” volunteers pool http://www.allexperts.com/user.cgi?m=4&expID=85358&catID=914 Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States www.constructiondisputes-cdrs.com

Education/Credentials
- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme (http://www1.fidic.org/resources/adjudicators/pupilage.html) - FIDIC Accredited Adjudicator

Past/Present Clients
- Several State organisations/Ministries , such as Ministry of Transport, National Admistration of Roads, Ministry of Regional Development (former Ministry of European Integration), Public Works and Housing, Central Contracting and Financing Unit in Romania and also in Turkey, Croatia and Macedonia - Numerous Western based private consultancy companies - full CV and other relevant information available at www.abinitio.ro

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