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Construction Law/Starting works without access to site notification

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Question
Dear Mr. Niculescu,
We are starting a construction project in Bosnia (Fidic Red BOOk 1999)and we already received the Commencement Date. We were supposed to receive also the Access to site but it seems that the Employer has some issues with some expropriation for a small plot. Therefore, the Employer has the interest to start the works as soon as possible and wants to sign an agreement with us, to receive the Access to the site 70 days after the Commencement date, waiving our right for any Claim related to this delay.  As we agree with this request we would like to know if we can really start the works and access the site before receiving a formal Access to Site. I shall mention that the agreement only mentions that the Access of site will be given in 70 days after Commencement Date and that the Constructor will not issue any Claim with regards to this.

We have requested the Employer to give us a partial access to the site (excluding the access for the plot with issues) but they replied to us that taking into account sub-clause. 1.1.5.6-Annex to the Tender-"" Sections- works are not divided into sections- they can not give a partial access to the site. Is their interpretation correct regarding the Sections? Is it wise to sign this agreement and start the works without the proper access to site?

Many thanks,

Answer
Dear Ramona,


Thank you for your question.

I strongly suggest you do not follow that path, as if you sign such a paper you waive any right in respect of delayed access to Site.

DON'T DO IT!!!

As for Employer's interpretation, it is totally wrong, Parties can always agree to split the Site in sections, in any way they like.

Hope that helps

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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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