CAN CONTRACTOR REFUSE TO PARTICIPATE IN CIPAA?

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 There is no room for contractor to refuse participating in CIPAA with the sole intent to delay payment further as the unpaid party can proceed with the adjudication proceedings alone including making payment on behalf of the Non-paying party just to complete the adjudication proceedings. 

Next, the Non-paying party cannot attempt to contract out of CIPAA, meaning to elect other dispute resolution mechanisim based on specific contractual arrangement between the parties. A reading of the terms of CIPAA as a whole prohibits the parties from contracting out of its application, notwithstanding that there is no express term to such effect in the statute. For example, an agreement by parties to arbitrate does not exclude the application of CIPAA. It merely provides parties more election to resolve their disputes.

The Non-paying party also cannot counter claim hefty backcharge against the unpaid party with the purpose to recover the same from unpaid party via the adjudication proceedings. All that a non-paying party can do is zerorise the positive claim of an unpaid party and ask for cost if the adjudication is decided in the non-paying party’s favour. There wont be any such order by the adjudicator for the unpaid party to pay non-paying party the backcharge it sought while defending the unpaid party’s claim. A party also cannot initiate an adjudication proceeding just to recover LAD imposition against another party as it is not payment for work done per se. 

The Non-paying party also cannot use the excuse that no interim certificate will render the claim by unpaid party premature. It is settled law in CIPAA that lack of certification of progress or interim claim is not a bar to the adjudication process. Section 5 of CIPAA does not require the existence of certified progress or interim claim before a payment claim can be issued.