< discussion> EOT and/or prolongation cost due to late payment ?is the contractor entitled to EOT and/or prolongation cost due to late payment ?
If no, please explain?
If yes, please,
a. give the condition,
b. narrates the route,
c. provide the means to conduct the analysis
under 92'red book of FIDIC 顶一下,沉了 个人认为Delayed payment与EOT成为因果关系的必要前提之一是承包商依据合同发出通知 [b]Question:[/b]
A Contractor has not been paid for the work executed by him for quite some time by the Employer, even after certification by the Engineer. The reasons being financial problem with the Employer.
The Contractor has eventually stopped the work after slowing down the progress and, at every event he has notified his action to the Engineer/ Employer.
Now the Employer intends that the work, to be completed by the same Contractor by allowing extension of time. Under this scenario what contractual measures are needed to be taken?
1. Only Extension of Time shall be granted, or
2. Extension of Time with only interest charges on due payments, or
3. Extension of Time with interest charges on due payments and with associated delay cost too.
You do not mention the form of contract, so I assume that you are working to FIDIC 4th Edition. The situation is slightly different for FIDIC 99, but the principles are the same.
The Employer needs to pay the outstanding sums, then the Contractor submits a claim for:-
1. Financial charges due to delayed payments;
2. Demobilisation costs, including storage is applicable;
3. Remobilisation costs, including staff recruitment costs if applicable;
4. Extension of time sufficient to allow for slowing down of progress, demobilisation, remobilisation and actual period of stoppage;
On settlement of above, work restarts. The payment mechanism under the FIDIC 1987 form of contract is as follows, assuming no amendment to the general conditions. The wording of the relevant clauses is not clear and I can appreciate how the confusion has arisen.
cl60.1; the Contractor submits the "monthly statement"; (day 0)
cl60.2; following receipt of the "monthly statement" the Engineer SHALL (mandatory) deliver an "Interim Payment Certificate" to the Employer. A period of 28 days is allowed for this; (latest date for delivery is day 28).
cl60.10; the time for payment to be made by the Employer is within 28 days of having received the Interim Payment Certificate; (due date for payment is day 56).
cl69.4; provides the Contractor with a right to suspend work, or reduce the rate of progress, in the even of the Employer failing to make payment within the time allowed; that is on or before day 56.
If the Contractor intends to suspend performance, or reduce the rate progress, it must firstly give a period of notice (28 days) and can only suspend or reduce progress when the period of notice has expired.
The Contractor can give the notice of intention to suspend/reduce performance as soon as the payment is not made on or before the due date as calculated above; that is he can issue his notice on day 57 and the right to suspend will become effective on day 85 (being day 57 + 28 days).
Cl69.4 does allow the Employer a period of grace after the due date for payment; therefore the latest date for payment is day 84 (being day 56 + 28 days).
If the Contractor delays issuing the notice of intention to suspend/ reduce performance, the date on which the suspension action can be commenced is also delayed. For example, if the latest date for payment is day 84 and the Contractor does not issue his notice until after this date (say day 100) he cannot commence the suspension until day 128. [i=s] 本帖最后由 neolith 于 2010-1-18 17:15 编辑 [/i]
now the questions are:
1. Allow for slowing down of progress?
how shall the contractor produce or "create" scenario as slowing down of progress? if the Contractor is funding the project, he should fund the project with identifying the critical issues. So, is slowing down means some sporadic suspension?
2. if the delay payment occurred at the early stage of the project, while the cotractor hold big amount of advance payment, say 10%. while the work done is only up to 6%. under this circumstance, is the contractor still entitled to the EOT or suspension? how to explain this under the contract? 1、FIDIC88版92修订版中，业主延迟付款，承包商有索赔利息的权利。如果承包商未收到工程款超过合同规定的时间（中期证书28天，最终证书56天，合同条款60.10），在28天提前通知工程师的情况下，可以减慢施工进度或停工（合同条款69.4）。如果停工超过84天，承包商可根据情况认定业主违约，在通知业主的情况下，根据69.1款解除合同（合同条款40.3）。
4、由于有预付款及履约保函，所以业主也不会害怕承包商违约。这与延期一般没有什么联系。 up! expecting the right reply