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Construction Law/EOT & Engineer Determination


Dear Peter ,

The FEDEC 99 stated in Clause 3.1 ( The Engineer Duties & Authority )

- The Engineer Shall obtain a specific approval of the Employer prior agreeing or determining any Extension Of Time and / or additional Cost .  

While Clause 3.5 ( Determination) : The Engineer shall give notice to all parties of each agreement or determination and each party shall give effect of each agreement or determination unless and until revised under clause 20 (Claims , Disputes & Arbitration).  

Based on the above , Please advise if the Engineer can issue his determination for EOT claim regardless the Employer approval .

Dear Ghaith,

Nothing is perfect and you will find other discrepancies within conditions of contract.  They are being resolved slowly.  In this case the priority of the clauses affects the procedure.  The Engineer has to apply clause 3.1 before applying 3.5.  If he issues his determination without the Employer's approval, then he is in breach of his contract with the Employer and could be liable for the Employer's extra costs. If the Employer should delay approval unreasonably, then there are legal solutions, but these are expensive and take time.  

I suggest that Engineer gets the Employer's approval to his determination without delay, which is not possible in all circumstances.  

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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

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