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Construction Law/FIDIC New Red Book Sub clause 1.9


Dear Sir,

In Sub clause 1.9 of FIDIC 1999, it says that "The Contractor shall give notice to the Engineer whenever the Works are likely to be delayed or disrupted......"
It further states that , If the Contractor suffers delay and/or incurs Cost as a result of a failure of the Engineer to issue the notified drawings or instruction, the Contractor shall give further notice to the Engineer and entitled subject  to Sub clause 20.1

My question is, the Contractor fails to give notice when the works are likely to be delayed (1st notice). But he gives the notice when he suffers delay. Is the Contractor entitled subject to Sub clause 20.1?

Dear Fernando,

The intention of clause 1.9 is to allow the Employer to mitigate any potential delay.  It could be considered that you have given notice if you have issued a programme of works stating when you need particular information, even if it did not comply with the formal requirements for giving notices.

The award under clause 20.1 might be reduced, if you have not given the notice, but your right to claim is still valid. I think that the Engineer would have difficulty in justifying any reduction, but then everything is possible.  

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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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