Construction Law/Termination

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Question
Dear Sir,

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:

1.   Would the Contractor be required to give notice, in reply of the notice of termination by the Employer, of its intention to claim for any loss and damage sustained by it? If so, would the notice be given to the Engineer and under GC Sub-Clause 20.1?

2.   Would the Engineer have the duty to evaluate and make determination on the Contractor’s Claims after termination? Or would it be through a dispute resolution procedure by the Dispute Review Expert or Board?

3.   On what contractual basis the Contractor can submit its claim for any loss and damages to be sustained as a result of the Employer’s termination- 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.

4.   I would also appreciate if you give me a guidance on the claims the Contractor may come up with when the Employer terminates.

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

Alemu

Answer
Dear Alemu
Hello!
I am taking opportunity to reply your questions as below;
1. Reply of notice is valid practice rather counter claim in the form of notice not valid practice.
2. Under clause 3.1 Engineer have the authority of determination.
3. Counter claim is not valid practice rather you can submitt the reply of notice to the satisfaction of the Employer.
4. You can submitt your claim under clause 20.1 after termination by the Employer otherwise DB or DRB will appointed to resolve the claim.
I hope this will find in line of your need.

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Sanjay Khandelwal

Expertise

I can answer related to the various construction contracts forms related with disputes and claims.Expertise in to evalute the extension of time,cost and profit claims.I can answer regarding the contract management in civil works.

Experience

I have the experience of construction industry, as a consultants,executor of construction activities of infrastructure development like road and buildings. I have the experience of various software related to design of highways and quantity evaluation.

Organizations
I am life member of Indian Road Congress,INDIA I am presently employed with M/s Lion Engineering Consultants,INDIA

Education/Credentials
My educational qualifications are as below: I am engineering graduate from MITS, INDIA,1987 I have completed my Post graduation from NIT,INDIA,2011

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