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Can we amend the expired contract?

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Re: Can we amend the expired contract?

Post  RJM on Mon Jul 16, 2012 7:01 pm

Michael,

After lengthy thought on the issue, I will settle with one question that we need to discuss! This is the relation between the validity of the contract vs expiration of time of performance.

Is the contract valid after expiration of time of performance?

RJM

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Re: Can we amend the expired contract?

Post  Michael Chilongani on Thu Jul 12, 2012 6:46 pm

RJM
noted your additional information. however, it could be better if you could have detailed your case study by providing some detailed facts rather than adding information in piecemeal.

i still stand by previous arguments that once a contract has expired it can not be revived. My supplement information was aimed at elaborating available ways under which a contract may be discharged and my emphasis was on discharge by performance.

In you additional remark you indicated that: -

Contract Completion date January 15, 2012

Date of amendment is June 15, 2012. (about six months later)

You have indicated that 'by the time (June 15, 2012) when addendum was signed still there were pending activities to be performed in the original contract and at the same time Procuring Entities increased the scope of the assignment and extended time for performance of the contract'

i could not have reservation if the modification was done before or on 15th January, 2012 before expiry.

However, even if we do not consider the modification or amendments there are following problems in Managing the origin contract: -
1. That the contract expired on 15th January 2012 while there were some pending obligations!!!! (was it work not done, or work done but not paid? what was it that was still pending!)
2. if the Consultant/contractor/Supplier had not finished his obligation and the time had expired then then Employer should have applied necessary contract provision regarding remedying the damages.
3. There was Laxity in contract Management and this is likely to have cost overruns in the contract.

It was not correct to treat it the way it was done unless detailed diagnosis of what happened is made

Michael

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Re: Can we amend the expired contract?

Post  RJM on Thu Jul 12, 2012 1:24 am

Michael,

First and foremost, many thanks for lighting more shed.

In this particular scenario, by the time (June 15, 2012) when addendum was signed still there were pending activities to be performed in the original contract and at the same time Procuring Entities increased the scope of the assignment and extended time for performance of the contract.

Can one conclude that the referred contract could have been discharged by Performance?

I doubt whether one of the contract discharge classifications you have highlighted occurred in this particular case;

A. By performance or tender. [Original scope of the services was not completed as per terms and conditions of the contract]
B. By mutual consent [There was no mutual consent to discharge the contract - as parties were willing to continue with contract - which contract? this is why dilemma lies]
C. By subsequent impossibility [I believe "impossibility" mean "acting of God" (Force Majeure) - in this case there was no Force Majeure]
D. By operation of law.[Which law? I think this type of classification comes into play when contract is null and void]
E. By breach [Contract normally contains rights and obligations each party in case of the breach of the contract - may be there was breach of contract - who breaches? if "yes" what actions were taken by the parties?]

Where are we?

RJM

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Re: Can we amend the expired contract?

Post  Michael Chilongani on Wed Jul 11, 2012 10:34 pm

To supplement my point let us consider what legal books says about discharge of contracts

DISCHARGE OF CONTRACTS

The cases in which a contract is discharged may be classified as follows:
A. By performance or tender.
B. By mutual consent.
C. By subsequent impossibility.
D. By operation of law.
E. By breach.

 A. BY PERFORMANCE
The obvious mode of discharge of a contract is by performance, that is, where the parties
have done whatever was contemplated under the contract, [b]the contract comes to an end[/b].
Thus where ‘A’ contracts to sell his car to ‘B’ for Rs. 85,000 as soon as the car is delivered
to ‘B’ and ‘B’ pays the agreed price for it, the contract comes to an end by performance.*

M.Chilongani

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Re: Can we amend the expired contract?

Post  Michael Chilongani on Tue Jul 10, 2012 11:20 pm

My opinion is that any contract has a specified life in itself. A procuring Entity can add life (by Extension) to a living contract before it is declared dead and buried(Expiry). Once a contract is dead (by way of expiry) it can not be returned back to life. it is dead and Resting in Peace and should not be disturbed by the living beings.

Procedures for Time extension are provided under Regulation 118/GN 97/2005 and for Consultancy service it is termed as contract Modifications as prescribed under Regulation 94/GN 98/2005.

Under both scenarios, if a contract is wholly executed by completion of obligations for works or services or delivery of goods, then a contract is terminated by performance. One can not add additional obligations into a completed contract. But if some contract obligations are still not completed the same should have been dealt with as per provisions of the contract including considerations for Liquidated damaged, if time was not previously extended.

If same goods or services are required from same supplier, a new process may be initiated as per Regulation 69 (c) of the PPR/2005/GN 97 or by single source selection as prescribed under Regulation 35/GN98/2005.

Under both scenarios, there is nothing like KUHUISHA or KUHAISHA or REVIVING a dead contract. Let the dead contracts Rest In Peace (RIP) and PEs should bear new offspring (Contracts) and let them start new life otherwise resurrecting Dead Contracts by reviving them may attract PEs into opting for running contracts which have no end dates.

Regards

M.Chilongani

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Re: Can we amend the expired contract?

Post  RJM on Fri Jul 06, 2012 9:26 pm

RSM,

Your submission could entirely be a new subject and from the scenario you have put forward - the answer could be Yes!
>>>>>>>>>>>>>>>>

What I posted is:

Completion date January 15, 2012

Date of amendment is June 15, 2012. What is your take?

RJM

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Re: Can we amend the expired contract?

Post  RSM on Fri Jul 06, 2012 12:24 pm

RJM,

This could be interesting.

Compeletion Date 15 January 2011,
Date of Ammendment 15 January 2011.

The big question is at what time was the ammendment made. For me up to 23:59 hrs is still 15 January 2011. So if I ordered ammendments before that time- the contract was still live.

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Can we amend the expired contract?

Post  RJM on Wed Jul 04, 2012 5:18 pm

I have seen several incidences whereby the Procuring Entities have amended the expired contracts. Normally they referred it using swahili slogan as "KUUWISHA MKATABA". Let put it in the right perspective in this particular contract - This is consultancy services contract; contract commencement date was August 15, 2011 and completion date January 15, 2012. On June 15, 2012 the Procuring Entity amended the contract by increasing the scope of the services and extended the performance period to August 15, 2012.

Am wondering whether this practice is acceptable. Your help.

RJM

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