Construction Law/Delay Damages


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?

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


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 before submitting a question.


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

B Sc(Hons) in Civil Engineering

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