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Question
Dear Florin

Invalid Instruction; Unauthorised Person

We are a sub-con (NSC material supply) and we received an instruction from the Main Con’s Materials Mgr., via email, to procure 1m USD of extra Materials.

The NSC states
“instructions in writing [only]from “Superintending Officer…”
 
We maintain that the instruction is not valid.

Are we correct?

Answer
Dear Martin,


Thank you for your question.

If as a general behaviour you have often received other orders from that specific person (different from the “Superintending Officer…”), or whoever else from the Main Contractor and always these orders were recognised and paid, then in case of trouble, you can always demonstrate in court that although your contract indicates the “Superintending Officer…”, it has become a pattern to have orders from whoever and hence the "true will of the Parties" was for the Main Contractor to sort out among themselves the responsibilities and allow orders to be issued by no matter who.

But if that is not the case and suddenly you got an instruction from someone else, without having a written consent from the Main Contractor, then you better ask for a confirmation from the “Superintending Officer…”.

Strictly contractually speaking, yes, you are right, under described contract provisions, that instruction is not valid.

Hope that answer your question.

Construction Law

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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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