Construction Law/EOT/Cost Claim


QUESTION: Dear Florin,

Hope you are doing fine.

On a road project, the Employer alleged to have granted possession of Site from km0+000 to km30+000.

The Contractor actually programmed and wanted to work starting from the beginning [km 0+000], but the presence of obstructions especially in the first 15km forced him to jump to km15. Even after km15, the Site handed over was not free from obstructions [such as trees, houses, electric poles, etc.]. The Contractor is forced to work around obstructions.

•    I would be extremely thankful if you give me an idea on how to justify the delays and additional costs and claim for extension of time and additional cost.

•    I would also be extremely thankful if you give me an idea about what sorts of records would the Contractor need to maintain to support his claims in this regard.

I must remain extremely grateful to your replies to my questions.


ANSWER: Dear Alemu,

Thank you for your question.

I shall not answer straight away, as there are a few things to be clarified. I shall rather guide you where to look at, first.

1. You need to verify if there was any indication at tendering time, that Employer may provide the land in sections, at different times, etc.

If there was no such provision, then the land was to be given at a certain clearly specified deadline.

If that deadline not observed, then Employer is at fault and any delay and cost are to be granted to the Contractor.

I understand that in fact, the Employer gave the land, but such land had certain obstructions on it.

2. Were these obstructions visible at tendering time? Were they to be cleared by the Employer prior the land being given to the Contractor? Both before and after km 15.

3. Was there anything (in respect of handling such obstacles) foreseen in your work programme provided in the tender/offer?

Prior discussing how to justify the delays, which should be quite straight forward, you need to assess your actual entitlement.

Please analyse the situation and answer the above questions.

If indeed, Contractor was to be provided full and free land, there is entitlement to time extension and costs, which are to be justified with all delays caused by such situation.

To answer your second bullet, you should have records of encountered situation, letters to the Engineer/ Employer, Monthly Reports, etc.

Thus, please have a look at your case, in the light of above questions. If still unclear. please come back to me and we'll develop it from that point onward.

Good luck!

---------- FOLLOW-UP ----------

QUESTION: Dear Florin,

Thank you very much for your prompt reply.

As you clearly understood, in fact, the Employer gave the land on time, but such land had certain obstructions on it, which forced the Contractor to work around such obstructions. The obstructions were to be cleared by the Employer prior to the land being given to the Contractor. As such, nothing was foreseen in the Contractor’s work programme.

1.   Would this be based on accounting for loss of productivity?

2.   If so, I would still appreciate if you guide me on how to justify the loss of productivity being caused because of the Contractor’s working around obstruction.

The Conditions of Contract stipulate that the Contractor would be liable to payment of liquidated damages, but it refers to the Appendix to bid about the sum the Contractor would be liable to pay per day as liquidated damage. However, there was no any Appendix to Bid included in the Contract. The sum to be paid per day as liquidated damage was not in effect specified in the Contract.

3.   Would the Contractor be liable to payment of liquidated damage in the event of his failure to achieve completion within the time prescribed in the contract for reasons attributable to him?

4.   If so, on what basis [what would the amount be per day?]  

As usual, I must remain extremely grateful to your superb replies to my questions.


ANSWER: Dear Alemu,

Thank you for coming back.

In that case, I believe you may check in your Conditions of Contract (which you did not indicate) and be 'inventive' in respect of claim reason.

You can try of course, under failure to provide the land free, which is most obvious, but as you were expecting to have the obstacles removed, you can try "unforeseeable physical conditions". Check what you can acquire most under each heading and see how easy you can demonstrate one or the other, then make the choice.

But to answer your questions:

1. Yes.

2. Your productivity has decreased, you had to include different  activities, or methodologies, or longer, etc. With that, you should be able to demonstrate on your Critical Path the suffered delay. Examples can continue, but you should know best what happened there.

3. Most probably yes, as that's what most contracts include. And frankly, sounds absolutely fair to me.

4. Now that's an interesting one! As there is no such Appendix, I wonder where do you have stated the Time for Completion, value of Advance Payment and numerous other such information, generally included in an Appendix to Bid/ Tender.

If I would be the Employer and would be in the position of applying delay damages, assuming the Conditions of Contract provides for that, I would either try establishing a generally acceptable amount/ percentage, or to somehow demonstrate on the legal doctrine of "true will of the Parties" that such amount/ percentage has been somehow/ somewhere silently agreed.

That depends a lot on how the Parties behave during the Contract implementation, etc - a long story.

But all in all, yes, Employer has an entitlement, their merit is there, but they'll definitely have a problem in demonstrating the quantum.

Trust that answer your queries.

---------- FOLLOW-UP ----------

QUESTION: Dear Florin,

Thank you very much for your prompt and superb replies.

I really do not have words to thank you enough.

As you stated, I would appreciate if you give me examples on how best we can demonstrate the decrease or loss in productivity. For example, would measuring and comparing productivities in areas with obstructions and without obstructions be acceptable? Any other best method [being acceptable in the industry] you advise me.

Once more, I must remain extremely grateful to your superb replies to my questions.


Dear Alemu,

Thank you for coming back.

I believe you are best placed in identifying the ways to demonstrate that. Indeed, you must show the difference between your original workprogramme (as planned) against what actually happened (as built). Hope you did submit a revised workprogramme after signing the Contract.

You should be able to show on the Critical Path, the activities that were delayed and total quantum of delay. Hence, delay related costs.

As well, in case you suffered additional costs, e.g. you needed to bring an additional equipment, or change your method of execution, etc, which generated increased costs, you must put all these on the paper and demonstrate your case.

It might be useful to hire specialised planner/ QS.

Good luck!

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Questions related to Civil Engineering Contracts, using FIDIC or other Conditions of Contract, concerning Procurement procedures and documents (pre-qualification, tendering and contracting) and Services/ Works Contracts implementation matters including Determinations, Payments, Time Extensions, VOs, Claims/Disputes. Additionally, questions related to dealing with International Financing Institutions. Can also answer questions in Romanian. Can not answer improperly formulated questions.


Over 20 years of experience in the field of design, works supervision, construction, management of aid funds and technical assistance for various types of contracts implementation, including severe conflictual contractual situations leading to Claims and disputes. Claims/ Contract management, Disputes adjudication, Arbitration.

Member of Romanian Professional Association of Roads and Bridges; Listed on President's List of Adjudicators of Romanian Association of Consulting Engineers Former member of the Disputes Resolution Board Foundation (DRBF) of United States – nominee on DRBF President’s Disputes Board Members List and of DRBF Chapter for Eastern Europe Former member of Polish Association of Consulting Engineers (SIDiR) – nominee on SIDiR President’s Disputes Board Members National List Member of “” volunteers pool Member of the "Constructions Disputes Resolution Services” International Panel of Construction ADR Specialists" of United States

- Graduate in 1994 the Construction Institute - Graduate of several FIDIC,Procurement and other courses - Graduate of first Disputes Board Members Mentoring Scheme ( - FIDIC Accredited Adjudicator

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