Construction Law/Delay Analysis


Hi Mr. Gerry,

I hope you can help me with the following.

- Contract is FIDIC 4th ed.
- Remeasurement Contract
- Design by the Client
- Concrete to be supply by the Client
- There was a delay due to Client inter alia: late delivery of materials, design change, late issuance of instruction and drawings
- The Contractor dont update the contruction schedule for months now and no schedule being submitted to the Client and Engineer.
- No comments or reply from Client and Engineer regarding this no submission of updated schedule.
- Now the Contractor is claiming for Extension of Time due to the above delays.
- How can the Contractor submit a delay analysis, which schedule he must use and how to do if no records being kept, no updated schedule being maintain and submitted just pure execution of work.??
-What will be case if the scenario is like this?
-I understand that the Client can imposed liquidated damage to the Contractor and it will be very difficult for the Contractor to rebut such action since no records are being maintained by the Contractor. Correct?

I understand that keeping contemporary records and updating the construction schedule play an important role and should be part of the obligation of the Contractor under a contract, however due to INEXPERIENCED Project Manager of the Contractor this occured.

Pls. advise. thanks and more power to you!



Dear Josh (Philippines)
What can I tell you here?  It sounds like you already know all the answers.  Whether it is due to inexperienced Project Manager - or what I sense from your inquiry here is compounded by a rather lackadaisical engineer as well - in the absence of records the Contractor may not retroactively reconstruct any delay analysis, regardless of the technique chosen.  Any delay analysis, regardless of the – FIDIC edition, type (color vis-à-vis Construction ONLY or Design-Build) or version - depends on reliable and cross-corroborated data – what lawyers call polling or interrogating the claim submittal and the schedule analysis presented thereby.  The Contractor may present any material as a claim, but he – as a claimant - will have to carry its burden of proof.  Without the facts and documents at his disposal what can the Claimant-Contractor prove to recover under the claim?
Although your query is silent on the issue of the Engineer’s role in this debacle, I do sense here that not only the Contractor’s PM is inexperienced in managing such projects, but the Engineer’s performance is defective as well.  Here is why:
I presume you referred to the FIDIC's "Red Book", the 4th Edition of the "Conditions of Contract for Works of Civil Engineering Construction" published in 1987.  
1.   Under §2.1.c – the Engineer can’t relieve the Contractor of any of its responsibilities.  So if the Contractor failed to update the schedule routinely, the Engineer had the responsibility to instruct §2.5 – himself or through his Resident Engineer - Contractor’s compliance within 7-days forcefully and with unyielding determination of the course of performance of the project.
2.   Moreover, under §13.1, the Contractor is responsible of providing its services in strict accordance with the Contract – which should have been enforced by the Engineer under §2.1.
3.   Under §14.1-14.2 – both the Contractor shall submit and the Engineer shall review periodic updates.  If the Engineer’s sits idle waiting for a belayed Contractor’s update submittal and thinks his non-performance is excused by recalcitrant Contractor, the Engineer himself is in negligence territory, as he breaches his duty to perform to the Owner.
I can go on much longer but I hope you get a drift.
It appears that on your project the time is at large (the Project is legally dead as the schedule has run out) and the Engineer must issue a grant of EOT to compel Contractor to finish the project on date certain, AND – very important – to revive the schedule, i.e. bring the Contract back to life (especially if the Owner / Engineer are jointly culpable in some of the delays) so that the Owner could process the payment applications thus enabling the Contractor to process its work further.  I hope it helps a little bit.


Gerry Sverdlin, PE. Esq.
Doha, Qatar.

Construction Law

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Gerry Sverdlin


Questions I can answer or provide assistance to reflect the following subjects: contract terms and conditions, interpretation of ambiguity, construction management and practices, claims for costs and time, variation / change orders, disputes, dispute resolution techniques and organizations, claims for extra work or materials, delay analysis, disruption or interference, defective design and negligent supervision, construction risks and mitigation, warranties and insurance. Questions I can NOT answer: too numerous to list here.


Mr. Sverdlin provided over 20 years of services in dispute resolution and expert opinion of complex construction claims for extra work, delay & acceleration, defective design & installation, unauthorized deviations, differing site conditions, productivity loss, labor & material shortage, owner’s interferences, force majeure, bonding, warranties and insurance coverage. Mr. Sverdlin participated in dispute resolution proceedings regarding 10 mile sub-aqueous outfall tunnel at Deer Island Treatment Plant – Boston Harbor Project, and claims arising out of construction of the South Boston / South Bay Interchanges for the Central Artery/Tunnel Project in Boston, Massachusetts, USA, and multiple proceedings Middle East. Specialties: Mr. Sverdlin established expertise in construction contract preparation under EJCDC, AIA, FIDIC and agency-specific bespoke contract frameworks: procurement administration, resolving defects in scope of work coverage, specification and estimates, change order processing, project controls & cost recovery. Engineering practice encompasses design & procurement management of highway & rail transportation systems, wastewater treatment and drainage networks, key performance indicator regimen.

2011 - CIArb Member Grade 1999 - Attorney at Law – Massachusetts Bar, BBO # 642980 1992 - Registered Professional Engineer - PE: Lic. MA-36839 - Civil Affiliated Memberships: MBA - Massachusetts Bar Association DRBF - Dispute Review Board Foundation TASA - Technical Advisory Service for Attorneys

2010 - 2011 - American University in Dubai -Grad. Sch. of Business Administration Construction Contracts, Means & Methods, Claims & Changes, Project Controls March 2009 - Chamber of Commerce, Colombo, Sri Lanka – Construction Management Seminar Changes & Claims, EOT/Delay Damages, Loss of Productivity – Measured Mile 2000- 2007– Boston Architectural Ctr & Wentworth Inst. of Technology - Construction Law 1991- 1993 - Northeastern University, Boston, MA – Land Surveying, Sewage Disposal System Numerous continuing education specialty courses Suffolk University Law School - Juris Doctor, law -1993 – 1997 Northeastern University - MS, Construction / Public Works Management - 1993 Polytechnic University - BS, Civil Engineering 1982 – 1985

Past/Present Clients
Representative Projects Dubai International Airport UAE Muscat & Salalah Int'l Airports Oman South River Dredging Mechanical Scituate, MA Permitting / Boundary Dispute (Title V) Worcester, MA Hazardous Material Site Assessment New Bedford, MA Groundwater Pollution Monitoring Burlington - Woburn, MA Hazardous Material Disposal - Site Clean-up Wrentham, MA Sewer Rehabilitation Project – STEP Abu Dhabi, UAE Dubai Metro - Road & Transportation Authority, Dubai, UAE Boston Harbor Project - Deer Island MWRA - BHP Winthrop, MA 1,200 MGD Waste-Water Treatment Plant Doha North Sewerage Treatment Works Ashghal, Doha, Qatar 254K m3/d STP, 25-km triple force mains, 33-km Interceptor Sewers 10,000 l/s PS Central Artery / Tunnel Project - MHD / MTA Boston, MA 116 lane-miles Old Colony Railroad - Commuter Rail (Boston, MA 70+ mi) Cherry St. Reconstruction Full-Depth Bridgewater, MA 2.1 mi Scenic Roads Reconstruction Town-wide Wayland, MA 8.7 mi Strawberry Hill Rd Reconstruction Full-Depth Concord, MA 1.7 mi Craigsville Beach Rd Reconstruction Full-Depth Hyannis, MA 3.4 mi Water Main Replacement Southborough, MA EMAAR – Gulf III Towers, Dubai, UAE Mixed-Use Hi-Rise Peabody Properties Residential Hi-Rise Lynn, MA Bristol Properties Shopping Mall Attleboro, MA May Institute (children w/special needs) Institutional Randolph, MA Bear Hill Executive Park Commercial Waltham, MA Prospect Hill Executive Park Commercial Waltham, MA Residential Community Subdivision 128 lots Hopkinton,MA Retirement Community Subdivision Residential – 126-lots Warren,MA Independence Mall Retail Kingston, MA Mashnee Village Subdivision Residential – 54-lots Buzzards Bay, MA Hyannis Industrial Park Heavy Commercial

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