Construction Law/Slow Progress

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Question
QUESTION: Dear Sir,

We are using FIDIC 2005 RED BOOK MDB Harmonized Edition.

In what way and how we (Owner) can demonstrate and substantiate the slow progress of the Contractor that can be used against them for the measurement of the extension of time if the following are:

1. The programme is not yet approved during the time when the Contractor submitted their notice of intention to claims?

2. If the delayed activities is not shown and incorporated in the approved programme of works.

We (Owner) wants to reject their extension of time claims due to contractor's default by proving their slow progress.

Thank you

AJ

ANSWER: Dear AJ,

Under clause 8.4, the programme does not need approval, only rejection with details if it is not compliant with the contract. I presume that you have made these comments, showing where the programme is non-compliant.  

1. As with all matters of delay, I suggest that the parties download and study the SCL Delay and Disruption Protocol, www.eotprotocol.com  In my opinion it is easier to understand than the similar documents produced by American bodies.  On studying this protocol, you will find sufficient reasons to accept or reject the Contractor's claim.  

2. The Contractor does not have to show all items on the programme, as they could be relatively unimportant.  However, he is obliged to give notice of potential delays due to the Employer's risk and he is obliged to mitigate any delays.

It is difficult to reject an extension of time due to 'slow' progress by the Contractor.  He can always claim that he would finish on time through additional resources.  There is case law on the subject, but I cannot recall it at present.  

I recommend extreme objectivity in this matter, or your actions could be rejected by a court and you could end up paying the bill.  I suggest that you contact one of the many local expatriate experts in construction delays and follow their advice.  

---------- FOLLOW-UP ----------

QUESTION: Dear Sir,

Yes we have made comments under Sub-Clause 8.3 regarding Contractor's programme to which does comply with contract. And later we (Owner) accept the Contractor's Programme incorporating our comments.

Anyway, here is the scenario, the Contractor submitted a delay analysis using Time Impact Analysis (TIA) technique by inserting or adding a group of activities (Fragnet) and these activities linked to slab concreting (FS relationship) applying the same date to slab concreting as per original planned (e.g. March 20, 2012) without considering the actual finished date (June 25, 2012) which is 3 months late from its original finish date. Since the group of activities (Fragnet) including slab concreting is within the critical path, the consequences and effects of Contractor’s claim analysis shows the new project completion date as of 6 months late from its original completion date.

The owner’s intention to reject the said claims it is because the activity (e.g. slab concreting) extending the new project completion date by 6 months. It is so obvious the delay and disruption is caused by the contractor due to the late actual finished of slab concreting.

Q1: Do we (Owner) have the right to reject the claim proving the above analysis?
Q2: Should the Engineer shall give notice whenever the Contractor showed some slow progress in their actual. This question is not related to Rate of Progress [Sub-Clause 8.6]. Correct me if I am wrong.

Thank you

AJ

Answer
Dear AJ,

Q1. The Engineer has the obligation to respond to the claim.  If he wishes to reject it, then he must do so within the time limit and give his detailed reasons for the rejection.  Those details reasons could be based on an incomplete or inaccurate TIA.  The Contractor has the right to resubmit his claim with further evidence overcoming the detailed reasons for rejection.  

Q2. I prefer to work with the Contractor and agree the solution to any 'slow' progress rather than just issue a bald instruction to resubmit his programme and to provide any necessary resources.  Cooperation and team work is much more effective than a dictatorial attitude.  However, the Engineer has the right, but not the obligation, to issue a notice under clause 8.6, so you must proceed as you see fit.  

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Peter M. Elliott

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First response to queries regarding extensions of time, variations orders, site instructions and payment using FIDIC and other forms of Conditions of Contract, based on English Law, and derivatives only. Anyone who needs advice about EoT should download and study the SCL Delay & Disruption Protocol www.eotprotocol.com before submitting a question.

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