When the Clock is Ticking and the Contractor is in Delay: What Can You Do?

Analysis

A development company has engaged a contractor under a minimally-amended FIDIC construction contract on a time-sensitive project for the construction of a number of villas.

It has sold all of the villas off plan, and the purchase and sale agreements contain a fixed date for handover.  If the development company fails to handover the villas on the specified date, it will be in breach of the purchase and sale agreements and liable to the owners for damages and may lose the agreements should the buyers elect to terminate the purchase and sale agreements.  The contractor completes 75% of the work but begins experiencing cash flow problems and, as a result, slows its performance.  60 days prior to the handover date, it becomes clear that the contractor will be unable to meet the deadlines.  The development company reviews the FIDIC contract and wants to know what its options are, if any, to achieve a commercial outcome without loss of reputation and money.

What can the development company do?