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Construction Law/Notification Requirement for EOT during VO approval

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Question
Dear Peter,

I hope you are well!

Recently, I have come across an issue of notification requirement for claim of extension of time due to additional works. We have submitted the claim of extension of time based on several events such as delays in drawings, revisions, possession of land and additional works.

Under the original scope of work we were to provide 24 new Barrage Gates and 30 Barrage Gates were to be rehabilitated. During joint survey it was noticed that the gates are badly rusted and require complete replacement with new gates. The Employer agreed and variation order was approved and payment was made accordingly. When we applied for extension of time we also included this event of additional works as it has disrupted progress of existing scope of gates. The Engineer although is agreed that the vent has impacted the completion period but he said event would qualify only subject to notification from the Contractor under sub-clause 20.1 of CoC which is absent in this case of additional work.

The forms of contract are FIDIC MDB Harmonised and he applicable clauses are 8.4(a), 13.3 and 20.1.

The Contractor's stance is that the Engineer has issued the variation order and has not mentioned in VO that the work would be without time effect. Secondly, the additional work is of substantial quantum and it is understood it would impact completion period and would be considered for extension during submission of the claim.

Our question is weather the strict requirement of notification for extension of time also applied on to additional work as they are requirement of the Employer and are duly approved and paid. It was also responsibility of the Engineer to take into account its effect on time during determination. The event has occurred and has impacted the time and everyone knows it, under such circumstances can merely letter of notice can limit the entitlement of the Contractor.

Kindly elaborate?

Regards,
Sikandar Ali

Answer
Dear Sikandar Ali,

Due to the principle of prevention, it is always risky for the Engineer to deny a claim due to time bar, if the claim is due to the Employer's action or inaction.  Generally, Adjudicators, Arbitrators and Judges will rule in favour of the Contractor, on the basis of natural justice.  There is a lot of case law on the subject.  

I suggest that you submit a clause 20.1 notice now, stating that you expected the EoT to be included in the Variation Order under clause 13.3 as mentioned in clause 8.4 a.  You now realise that the Engineer is not dealing with it under clause 13.3 so you are submitting a claim under clauses 8.4 and 20.1.  The Engineer may not believe you, but at least it gives him an excuse to consider the claim.  

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Peter M. Elliott

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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 www.eotprotocol.com before submitting a question.

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