Construction Law/clause 40.3

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Question
THE EXPERT;
THE ENGINEER OF THE PROJECT SUSPENDED THE PART OF THE WORK DUE TO NON AVAILABILITY OF THE DESIGN AND POSSESSION. WE BEING CONTRACTOR GIVEN THE NOTICE FOR 84 DAYS UNDER CLAUSE 40.3 OF COC AND THEN SERVED ANOTHER NOTICE OF 28 DAYS. NO WHAT WE WILL DO? SHOULD WE SERVE A NOTICE FOR OMISSION OF A PART UNDER CLAUSE 51 OR WE HAVE TO GIVE THE NOTICE FOR WHOLE WORK AS WORK IS STOPPED ON WHOLE WORK DUE TO NON AVAILABILITY OF LAND. BUT THE ENGINEER NEVER GIVEN THE INSTRUCTION TO SUSPEND THE WORK FOR WHOLE PROJECT. AND WHEN WE WILL SERVE THE NOTICE FOR CLAUSE 69.1 OF COC AND WHAT COULD BE CONSEQUENCES.

Answer
Dear Ahmed,


Thank you for your question.

According to 40.2, Engineer is to determine the EoT and Cost that is due to you.

As per 40.3, if suspension lasts for more than 84 days, Contractor has to require permission to resume the activity and if no denial, to continue.

If that not possible, as in your case, Contractor "may to elect to treat the suspension as an omission". Please read in detail that Clause and proceed accordingly.

If that part of the Site which is concerned does not allow you to carry out any other works, then you should probably treat the whole remaining works as suspended.

Mind you, you need to include that in your notices.

Now, in respect of 69.1, I do not see in that Sub-Clause any provision entitling the Contractor to terminate the contract for reasons falling under 42.1 & 42.2

All you can do is to consider omission and seek for any other available compensation in terms of EoT and Cost.

Hope that helps

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Florin NICULESCU

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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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