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Construction Law/Replacement of key staff

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Question
"Dear Sir
With due regards
Kindly clarify the matter related to Consultancy services providing to Client for for supervision and quality control of construction projects. The situation is that the services asked by the client for the period od 24 months with proposed technical staff.

1. For replacement of each staff proposed in technical proposal remuneration reduced by 10% for each replacement. If replacement of staff reached more than 50% of staff then action of termination may initiate by the client in the contract period of services.

2.The construction contracts work not completed in time by the contractor due to some reasons resulting the services of supervision consultants required to extend up to according to expected completion of construction works.

Questios are;
1. The technical staff engagged for the period of contract only. In the extended period of services the persons are not willing to continue further. Please clarify in such case replacement clause wiil applicable or not to continue the services with replacement of technical staff?
2. In the extended period the replacement clause conditions for reduction of remuneration of each position will be applicable or not?

I hope a valuable advise at earliest is expected.thax in advance.

With regards

SANJAY"

Answer
Dear Sanjay,

Thank you for your question.

I will give one singular answer to both. My answer would be that, whether if the staff is not willing to continue for the extended period after the original contract period has expired or has started the extended period and was replaced, would be applicable for the the reduction in remuneration would be determined by the term of the contract. If the contract provides for it as such, then, it will be. You need to check the contract. In case the contract does not provide for such clause in specific terms, you will need to Xray the clauses and contract to see if there is any implied clause that could be interpreted as such. In case, you could not imply from the clauses, you would need to check out for the intent of the contract, whether the contract anticipates that, there could be extension due to non timely completion  as a result of delay or additional works. If there is such provision or intent created under the contract, it means that, the provision for reduction in remuneration as result of replacement is foreseen under the contract and during the currency of the contract I.e. as long as the contract exists even though extended. If such is the case that, such intent is established, it means the parties to the contract have not only agreed that, same terms applicable to the contract under other part of the clause (for example, same payment terms,  same terms for termination by other means, same terms for settlement of disputes...etc) would be applicable to the contract during the extended period.

I hope this clears your doubt.

Thanks

Femi

Construction Law

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Femi Alofe

Expertise

I can answer all questions relating to the followings: 1. Contract Administration - variations, contract clauses interpretation, all post contract procedures, valuations and certificates questions, extension of time issues and prolongation cost matters. 2. Contract Practice - Any questions regarding forms of contract like JCT, FIDIC & other Bespoke forms. 3. Quantification, measurements and Estimating questions 4. Contracts and construction law questions and dispute resolutions problems. 5. All FIDIC Conditions of contracts

Experience

Out of my 24 years experience in construction industry, i have the following specific experience: 1. Contract Administration - 15 years in contract administration with over 10yrs in Managerial positions covering africa and the middleeast. 2. Contract Practice - 15 years experience with over 10yrs in Managerial and expert positions covering africa, north america and the middleeast. 3. All pre-contract procedures, Tendering, Quantification, measurements and Estimating questions - 20 years experience. 4. Contracts and construction law questions and dispute resolutions problems - 15 years experience with over 10yrs in Managerial and expert positions and 5 years expert witness and active practice in arbitration proceedings covering africa and the middleeast.

Organizations
1. FAIQS - Fellow, Australian Institute of Quantity Surveyors, Australia 2. FRICS - Fellow, Royal Institution of Chartered Surveyors, UK 3. CCP - Certified Cost Professional AACEI, USA 4. PQS - CIQS, CANADA 5. ACIArb. - CIArb, UK 6. MNIQS - NIQS, NIGERIA 7. RQS - QSRBN, NIGERIA

Publications
1. AACEI RP on Estimating, 2010

Education/Credentials
1. B.Tech (QS) 2. RICS professional course, CEM - UK 3. MSc , UK NARIC 4. Professional Doctorate ( to commence 2016)

Past/Present Clients
1. Larsen & Toubro Ltd, Dubai UAE 2. Larsen & Toubro (oman) LLC 3. Archi + Web consortium, Abuja Nigeria 4. George Dike & Associates, Minna Nigeria 5. Public works Authority (Ashghal), Doha Qatar

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