Construction Law/Delay Damages

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Question
Our Contract is FIDIC Yellow Book. Our date for completion of the project is now over by one and a half months including 2 approved extension of times. We are prevented from completing some works by the non completion of the Employer's direct subcontractors. The Employer told us not to apply for extension of time as he will give us time to complete our works. We are in the process of agreeing on the terms for the time to complete the outstanding works. It has taken us more than 2 months and we have not been able to agree to the full terms. We have applied for Substantial completion  2 weeks ago to the date that is officially granted for completion that is one and a half month ago. There is no response from the Engineer. The Engineer/Employer did not issue any certificate of non completion or claim as per clause 2.5. My question are (1)Can we consider that our time for completion is Time at Large? (2) Clause 2.5 stated requires the Employer/Engineer to give notice of claims as soon as possible after they become aware of the event. It is more than one and a half month now and no notice has been issue to us, what period of time is consider by as soon as possible. (3) In this circumstances, are we relieve from any damages (LAD) claim from the Employer?

Answer
Dear Wong,

Under FIDIC 99, there is no such thing as certificate of non-completion, only a taking over certificate.  

Clause 10.1 is the relevant clause for this problem.  The Engineer has 28 days to issue a ToC, following your request, so there is time yet.  

1. No time at large, unless the Engineer delays unreasonably in giving his response for your claim and he has plenty of time yet.  
2. Unlike the Contractor, there is no time limit for the Employer to issue a claim.  Only the courts can decide what is reasonable or unreasonable.  
3. I would submit your claim under 20.1 for an EoT to cover the delays due to the Employer's sub-contractors, on the basis that you have to protect your company and ensure that there is no claim for LAD.  If the Engineer says that it is time-barred, say that you did not realise until now that the Employer was delaying a solution and thus you might have extra costs.  

From your question, it appears that you are getting frustrated and emotional over the situation.  Quite understandable, of course, but it will not win any claims.  Try to be as cool and objective as possible.  

Construction Law

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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.

Experience

Value . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Organizations
Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

Education/Credentials
B Sc(Hons) in Civil Engineering

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