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Construction Law/Claim on wrongful termination


Dear Femi,

Hope you are doing fine.

It has been so long since my question last time.

The Employer for a road construction project was complaining about the poor progress by the Contractor and is intending to terminate the Contract. The Contract is based on BANK HARMINIZED EDITION OF THE GENERAL CONDITIONS PREPARED AND COPY RIGHTED BY FIDIC, FIDIC 2005.

My questions today are:

If the Employer proceeds with and terminates, but if the Employer’s termination can then be justified to be wrongful termination by the Contractor

1.   On what contractual basis the Contractor can submit its claim for any loss and damages to be sustained as a result of it- which Clause to rely upon? For the termination by the Employer, the Contract makes provisions at GC Sub-Clauses 15.3 and 15.4 for payments to be due to the Employer only.

2.   Can the Engineer evaluate and make determination on the Contractor’s Claims for loss or damage to arise from wrongful termination? Or is the Engineer not empowered and it would be through a dispute resolution procedure by the Dispute Review Expert or Board, arbitration or WHAT...?  


Being deeply indebted in advance to hearing your expert advice, as usual of course, I remain


Dear Alemu,

Thank for your question and please bear with me for late response.

Firstly, I am sure you would have known that termination is a very serious issue and no party must invoke such under contract except the conditions spelt out under the Contract warrants it and still, caution has to be exercised when taking such decision to terminate.

As per your question, if a party terminates, say Client, and eventually, it was established that, it was a wrongful termination, the first signal is to the contractor (just like any other person) is that, for every wrong action of a party, there is bound to be reaction which would mean losses or damages suffered. The basis of any claim under such circumstance of wrongful termination would be very clear if the conditions spelt out for termination has not been fulfilled before invoking termination. Of Course, non-fulfilment of such criteria is the basis why it is a wrongful termination and then, if the Contractor has suffered any damages or losses or incurred additional costs as a result of such wrongful termination, the law and contracts demands that, he should be entitled to claim so as to be restored back to such position he would have been had the wrongful termination not occurred. Now, the Quantum of any of such claim depends of the circumstances of the Contractor and ability to demonstrate such losses, damages and additional costs incurred. Certainly, i perceive claims under such heads as: Loss of profit, extension of time, prolongation and or disruption costs, loss of opportunities and losses caused by "denting" of image due to wrongful termination, claim for unrecovered overheads and so on....all these can be claimed based on Clause 20.1 which is the principal clause for Contractor making claim in respect of any clause or anything under the Contract.

Yes, of course, the Engineer under Clause 3, has a Contractual responsibility to the Employer to evaluate and make determination on all claims. This is because, the Entity named under FIDIC contract (BHE) for which the Contractor is to direct his claim is the Engineer and it is only the Engineer that should evaluate and make determination. Claims can not be directed to any dispute board or tribunal for determination, only disputes on such claims could be referred to dispute resolution body for resolution, determination or and settlement.

I hope this clears your doubt.



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Femi Alofe


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


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.

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

1. AACEI RP on Estimating, 2010

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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