Construction Law/Employer's Claim


Dear Sir,

2010 FIDIC MDB Harmonized Conditions of Contract

In accordance with Sub-Clause 2.5 GCC, “the Employer or the Engineer shall give notice and particulars to the Contract”. This Sub-Clause further states “The notice shall be given as soon as practicable and no longer than 28 days after the Employer become aware, or should have become aware, of the event or circumstances giving rise to the claim”

I have following questions:

(i)   Is the Engineer obliged to give notice and particulars (substantiation of amount and/or time) to the Contractor on behalf of the Employer and then himself proceed under Sub-Clause 3.5 GCC to determine this matter?
(ii)   This sub-clause puts a time bar of 28 days on the Employer or the Engineer to give notice of the event or circumstance. Is the failure to give timely notice will entitle the Contractor to discharge from his responsibilities in connection with the claim as compared to Contractor’s notice claim provision in Sub-Clause 20.1?
(iii)   If the Engineer gives notice and substation of the Employer’s Claim, then how he is considered to give fair determination on his own produced claim?
(iv)   Sub-Clause 2.5 did not expressly require submitting proper fully detailed claim as compared to Contractor’s Claim instead it required to submit notice and particulars. My question is that is the Employer obliged to submit claim in the head of “Employer’s Claim” if he considers entitled to additional time or money?


Qasim Zeeshan

Dear Qasim,

Thank you for your question.

In respect of your raised issues:

(i) a Notice of Claim must be issued by either Employer or Engineer. The Pink Book reads in the first paragraph under Sub-Clause 2.5 "the Employer or the Engineer shall give notice and particulars to the Contractor ..."

In the third paragraph, "The Engineer shall then proceed in accordance with Sub-Clause 3.5 [Determinations] to agree or determine ...".

I assume you're referring to the apparent conflict of interest, which indeed might be a problem.

The answer to your question is thus "YES", but determination should not be made by the (Senior)Resident Engineer present on Site, but by another person from the Engineer's side.

(ii) No. regretfully not. Sub-Clause 2.5 is silent in that respect, while, Sub-Clause 20.1 specifically indicated such exoneration.

As a side comment, that time barring however, may be removed by DABs or courts, in certain circumstances.

(iii), Sub-Clause 3.5 reads: "the Engineer shall make a fair determination in accordance with the Contract". It is indeed a problem, but please see above answer (iii). Moreover, determination should be "in accordance with the Contract". Not an easy job and it often leads to mistrust and failure to be accepted by Contractor. Unsurprisingly!

(iv)Employer can claim for recovery of certain amounts, or extension of Defects Notification Period. Yes, Employer too must demonstrate both merit and quantum for whatever they require/ claim. If no proper details submitted, they will definitely fail in convincing Contractor, which will most likely trigger a DAB.

Trust that answer your queries, good luck!

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