Construction Law/Determination

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Question
Hi,

I am working as a Contract Engineer for the Engineer on a project pertaining to FIDIC MDB 2010 Conditions of Contract. My query is related to Sub-Clause 3.5 [Determination] of General Conditions of Contract. In one of the Contracts, the Contractor has submitted an extension of time claim. We have reviewed Contractor’s Claim in details as per Sub-Clause 20.1 GCC and find out that the Contactor has not fulfilled the requirement of the Contract in order to qualify for an extension of time. As the Engineer has to proceed under Sub-Clause 3.5 GCC simultaneously, therefore we called for consultation meeting between the parties. In Consultation meeting, we represent our initial findings to the Parties that the Contractor’s Claim did not qualify for extension of time but the Employer in a consultation meeting agreed to give extension of time to the Contractor and this agreement was recorded and take effect accordingly. My queries are as follows;

(i)   Is the Employer has the authority to discharge the Contractor from his liabilities in a consultation process? Keeping in view that the Contractor’s Claim did not qualify for any entitlement.

(ii)   Both Parties has the authority to amend the Contract with mutual agreement, then is it correct to do this mutual agreement under Sub-Clause 3.5 in a consultation process or it can be done elsewhere. Because I think, if such agreements has to be made without considering merit of the Claim, then why a detailed procedure of claim analysis is laid down in Sub-Clause 20.1 & 3.5 GCC.

I will be glad to receive your comments.

Umer Shabbir

Answer
Hi, Umer,
The Parties are free to do whatever they want within the Contract if they agree on it. At any time they can change the Contract or agree on something. This case, they decided to skip the Contract provisions - Sub-clauses 20.1 and 3.5. The Engineer, instead, cannot change the Contract.
I know that it can be frustrating for the Engineer, but this was the agreement between the Employer and the Contractor, and they are the Parties of the Contract. Usually, the Employer - but also the Contractor - has to justify their decisions in front of their Board or control bodies, but this is their responsibility, not of the Engineer.
Hope it helps.
Best regards,
Alina

Construction Law

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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