Construction Law/time at large


Dear Sir,

we are the contractor on a design and build contract, using Fidic 99 yellow book (extensively amended with red book provisions).
our contract completion date was 10.04.2013. During the course of the project we notified and substantiated two claims due to Employer's risk events (late possession of site, adverse weather conditions). we have claimed in total for 343 days of EoT. the Engineer made its determination and concluded we are entitled to only 223 days. The Engineer's determinations were given after the initial completion date.
Our Contract Conditions provide at sub-clause 3.1 that "the express approval of the Employer is required before establishing any extension of time under 8.4".
The Employer did not approve the EoT and no addendum of contract has been concluded to envisage a new completion date.
Moreover, the employer refuses to sign the DAB agreement with the member proposed by Fidic President, and we have no DAB in place.
My questions are:
1. In this context (there is the Engineer's determination confirming the Employer's failure) are we liable to pay LD, as the Employer is threating us?
2. can we consider the time to be at large?

Thank you in advance for you appreciate response.

Dear roxana,

I do not understand why contractors continue to work in Romania, when the government refuses to comply with their unfair conditions of contract.  Most government employees do not have the power to approve extensions of time or extra payments and are afraid to ask for approval from their superiors.  So, your only way to succeed is to go to court.  

With regard to the DAB, Clause 20.3 is quite clear in the final paragraph, but there are practical problems.  If the Employer refuses to sign the agreement, then the DAB may have reservations about being paid as well as reservations about the legality of their appointment.  Reputedly, government bodies have lost several DAB actions; allegedly due to poor advice from their lawyers, and thus are hesitant to agree to the appointment of a DAB.  The EC has not helped matters by stating that payment of the DAB is an ineligible expense for EC funding, so the government bodies have to fund DAB's from their budget allocations.  One of the difficulties with FIDIC is that it rarely gives sanctions for the Employer's breach of contract.  Thus the only course for the Contractor is make an action in the courts.  

1. If the Engineer has not issued an Extension of Time, even if he has issued a determination, then the Time for Completion has not been extended and you are liable to pay delay damages.  FIDIC 99 does not require an addendum for an extension of time, merely an instruction from the Engineer, but he must respond to a claim within 42 days or the Employer is in breach of contract. The good point is that if you go to arbitration and then the courts, you are likely to be awarded interest on the delay damages plus repayment of the delay damages.  However, this process can take several years.  

2. Time at large is a common law concept which does not have a real equivalent in Civil Code law.  However, similar concepts do exist and you can find an useful article at  

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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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