Construction Law/Extension of time claim with costs
We are the Engineer on a project in Botswana under FIDIC Conditions of Contract for Electrical and Mechanical Works Third Edition.
Under the contract the Employer is responsible for supplying all materials. As it transpired the Employer failed to supply the materials in reasonable time resulting in considerable disruption to the Contractor and delays in completion.
The Contractor notified his intention to claim for extension of time with costs and has now submitted his claim.
The claim appears reasonable but the problem we have is in assessing it. For example there are considerable transport costs but how can we as the Engineer tell if the transport was related to disruptive activities or even for this project? We are employed to undertake monthly inspections only so have no records of our own.
Can we as the Engineer take a view and advise the Employer that the claim appears reasonable and if they dispute it let the matter proceed to arbitration? What else can we do?
Thank you for this question.
My first pojnt would be to ask the contractor to detail the journeys they have made and review whatever information it then provides; however I will be surprised if this is helpful. Once the contractor is unable to provide the information though, it becomes easier for you as the Engineer to take view on the matter, and assess what might have been reasonable in the circumstances.
It is for the contractor to prove its own claim on a balance of probabilities. If it is merely asserting that transport was used and is unable to give any level of detail, I suggest that it has failed to prove its point and, therefore, that element of the claim has failed or is at least subject to a more arbitrary assessment.
I hope that this assists you.
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