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Construction Law/Extension of time and additional payment claim


Dear Peter,
we have a construction project with very high ground water level (almost at surface) and in region with frequent and heavy raining. These all affect execution of earthworks for the project, however we can't proof that the conditions are exceptionally adverse (FIDIC Harmonised Edition, 2010).

Additional problem is created by river that is located at 200 m distance from the project and it's elevation is higher than elevation of the project site. Although it has banks of about 2 meter height, when there is heavy raining it quickly becomes filled with water and starts flooding our project site. I want to apply for extension of time and additional payment, based on provisions of clause 4.12. Please let me know your opinion. I'm not sure because the situation we have is still connected to climatic conditions.


Dear Roman,

You have a hard job ahead of you.  Firstly for all EoT claims, I suggest that readers download and study the SCL Delay and Disruption Protocol

If you wish to succeed with a claim under clause 4.12, then you have to prove that the situation could not be foreseen by an experienced contractor, which will be difficult, especially as 4.12 specifically excludes climatic conditions.  What has changed since the Tender Dossier was issued?  If there is no change, then there is no basis for a claim.  Generally for weather type claims, you must prove that the situation is worse that the average of the past ten years.  So you have to get records for the past ten years from a government or other reliable source.  

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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.


Value . . .
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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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