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Construction Law/additional costs during EOT period

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Question
Dear Alina
I’m working as Engineer in one Contract governed by FIDIC 1999. The Employer agreed’s with 86 days EOT, based on concurent delays principles under condition that no additional cost will be required by the Contractor.
We understend that additional cost represent overheads, profit, mobilization costs, plants/equipment’s depreciations.
Can you please advice me if the Contractor is entitled to obtain during EOT period the costs related to following services and works provided in Bill of Quantities on General Items Chapter (Technical assistance on site by the designer; Road maintenance during construction period, Environmental monitoring services, Traffic management plan, Issuing of photographic monthly report and other Lump sums items).

Thank you!
Best regards,
Vasile STRIMBEANU-IACOBAN

Answer
Dear Vasile,
Let's think...
If the Employer causes a delay, then the Contractor is entitled to:
EOT+Cost+Profit, i.e. the Contractor will be allowed to work longer without penalties and will be reimbursed for his expenses.
If the Contractor causes the delay, then the Employer is entitled to:
Delay Damages, i.e. the Employer will be paid for his damages caused by the Contractor's delay.
Then, if both caused the delay (concurrent delay), it will be:
EOT and it will be no entitlement regarding the 2 "costs" (either COST and Profit, or Delay Damages), i.e. each Party will absorb its own "cost".
Coming back to your question, "Cost" means, according to the definition, "all expenditure reasonably incurred (or to be incurred) by the Contractor, whether on or off the Site, including overhead and similar charges, but does not include profit". The kind of issues listed by you are also costs that can be included in the definition above, so "no additional costs" include these, too. Consequently, the Contractor is not entitled to these items from the GI BoQ.
Hope it clarifies the things.
Best regards,
Alina Oprea

Construction Law

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Alina Valentina Oprea

Expertise

I can answer to questions regarding FIDIC 1999 contracts, including practical use of these conditions of contract, as well as to questions regarding dispute boards, both from theoretical and practical point of view. I cannot answer to questions related to other kind of contracts or to procurement process, except to some (limited) extent.

Experience

Implementation of works contracts (FIDIC 1999) financed by different financial institutions, including European Union; claims and disputes; dispute boards See more on www.alinaoprea.com

Organizations
Dispute Resolution Board Foundation

Publications
see http://alinaoprea.com/publications/ ; DRBF Forum Newsletter; Drumuri si Poduri; Revista Constructiilor; SIDiR Newsletter

Education/Credentials
Graduated the University of Civil Engineering Bucharest, Faculty of Railways, Roads and Bridges (1985-1990); Trained under Mr. Gwyn Owen’s pupilage program for arbitrators/adjudicators under FIDIC mentoring program (2006 – 2007)

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