the contractor is bound at every ocasions to perform , the case would be clearer if Suspension Clauses are applied , whereby , the contractor can call for suspension if the employer withhold payments on non - claim grounds , i.e , the contractor is not in default. from the other side , however , in such the case when the contractor is truely in default , non - payment should be endorsed at the first place by suspension due to damages of a more than 20% delay in the overall of the contractual effective duration ,CM and or Engineer bear the responsibility to guide the situation at its very inception , because this directly affects the course of litigation or arbitration.
To draw a solid line in which a case defferenciates wether to deny or not , the Engineer should study the progress at non - payment situation and the following periods, this is to strictly estimate wether the contractor is financing the project due to non - payment from the owners side, this could be established by means of cash flow analysis versus contractors cost at the non - payment event.
Finally , the Engineer, though employed by the owner should not act as the Employers AGENT negatively , his role is to process a fair situation , and should by enforcing his SCOPE OF WORK issue an honest advise to the owner to mitigate consequences of ambiguity.