Construction Law/Contract vs Applicable law
Hope you are fine. Very simply, in case of conflict between a Contract and the reference applicable law, which one shall prevail(and which FIDIC clause speaks about that) . let us have the following cases:
1- if the applicable law says that the interim payment to be paid after 45 days but the Particular conditions say that it is to be paid after 30 days, which period shall apply?
2- Also, if in the Contract Agreement, the advance payment is mentioned to follow the applicable law and its extension via the cabinet decision No. X, whereas there was another extension to same applicable law via cabinet decision No. Y (which was issued later than X) but our contract didn't refer to it. Can the Contractor claim for advance payment as per Decision Y since it is higher than given in X?
3- if the particular conditions of the contract say that Design should follow the latest reference codes and standards (Contract is Design-Build) and when checking the code (we are the consultant) ; the main irrigation pipe according to site conditions should be 4" , however, in the project technical specification the main irrigation pipe is to be 3" and the BoQ also includes prices for 1", 2" and 3" only. knowing that the priority of documents in case of conflict in our contract are as following orders: Particular Conditions then technical specifications then BOQ , and knowing also that the contract is re measurable ... what your viewpoint in such case , Sir?
Dear Mr. Khaled,
Thank you for your question and I have following comments to offer against your three questions as follows:
1. No doubt applicable law has priority over contractual provisions if they are contradictory to each other but payment matter is not such a matter that applicable law should be brought in. I feel that written contract should be followed for the payment period i.e. 30 days as per FIDIC conditions. I am not sure if the contract is based on FIDIC conditions or not.
2. I will advocate decision Y and may be followed.
3. As the contract is design build, the approved design and relevant BOQ items needs to be followed.
This is as per my understanding of your questions and please come back if this not in line with your questions.