Construction Law/Fidic Red Book


QUESTION: Does Clause 20.1 Contractors Claims apply to Clause 13.6 Dayworks?

Clause 13.6 First para states "For work of a minor or incidental nature, the Engineer may instruct that a Variation shall
be executed on a daywork basis. The work shall then be valued in accordance with the
Daywork Schedule included in the Contract, and the following procedure shall apply." The procedure that follows makes no mention of 20.1.
Your advice would be gratefully appreciated.

ANSWER: Dear Mike,

Each Employer has their own procedures for dealing with submission of documentation for Dayworks, which are generally included in the preamble to the Bills of Quantities, or the section on Dayworks.  

I assume that you have followed the stated procedure and that the Engineer has not returned the signed copies, or has not approved payment when included in an IPC.  In this situation, you must submit a claim in accordance with clause 20.1, because the Engineer is not complying with the stated procedure.  If the Engineer follows the procedure, then there is no need for a claim under clause 20.1.

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

QUESTION: Thanks for the prompt response.
We had 2 contracts where Dayworks were carried out. On the first contract all SI's were approved and paid for albeit months after the contract was completed. We followed  clause 13.6, to letter, in all instances. The work sheets were signed on a daily basis by the Engineer's supervision. The second contract consisted of SI's generated by the Engineer and SI's generated by the Employer. Prior to contract completion the Employer was issued, on an on-going basis, with all costs relating to his instructions but only paid a about third of his SI's. The Engineer was on a regular basis given the costs for his SI's, it is acknowledged that some may have been a bit late in submitting. The Engineer was fired just after contract completion but prior to the commercial aspects being closed out. At the end of the contract we submitted an EOT which eventually ended in a DAB. Between the end of the contract and the DAB was a period of 8 months. Contract 1 mentioned above SI's were paid 3 months before the DAB was constituted. The DAB's findings was that we were at fault as we did not submit a 20.1 claim for each and every SI and accordingly time barred us. We never submitted any clause 20.1 claims for the First Contract.

ANSWER: Dear Mike,

Implicit in Clause 20.1 is the belief that there has been a failure to pay a sum due under the Contract.  You had no reason to believe that you would not be paid, especially as the sums had been paid, albeit late, on Contract 1.  Therefore the 28 day time bar did not start until the decision of the DAB.  I suggest that DAB was in error in its finding.  I would submit a 20.1 notice immediately for the unpaid amount including interest.  Depending on the value of the outstanding amount, I would submit a Notice of Dissatisfaction to the DAB decision and go to Amicable Settlement and thence to Arbitration.  I would monitor my spending on this process so that it did not exceed more than 10% of the amount in dispute.  In the meantime, I would publicise the findings of the DAB and the actions of the Employer as widely as possible to ensure that others learnt from your experience.  

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

QUESTION: Good Day Peter

While there is the route to submit a Notice of Dissatisfaction for rulings that you wish to pursue further, is it a requirement to advise the DAB and Employer of the rulings that you have accepted in a DAB decision.

Best Regards

PS. Most grateful for your expert advice to-date.

Dear Mike,

Silence, as always, is construed as assent, so no formal notification is needed of agreement with the decision of a DAB. I quote
"The decision shall be binding on both Parties, who shall promptly give effect to it unless and until it shall be revised in an amicable settlement or an arbitral award as described below. "

Construction Law

All Answers

Answers by Expert:

Ask Experts


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 . . .
It's unwise to pay too much, but it's unwise to pay too little. When you pay too much you lose a little money, that is all. When you pay too little, you sometimes lose everything, because the thing you bought was incapable of doing the thing you bought it to do.
The common law of business balance prohibits paying a little and getting a lot. It can't be done. If you deal with the lowest bidder, it's well to add something for the risk you run.
And if you do that, you will have enough to pay for something better.
. . . John Ruskin (1819 - 1900)
"We are too poor to buy something cheap"
.Romanian Proverb 2002
A lean compromise is better than a fat lawsuit. George Herbert (English poet 1593-1633)
I said it in Hebrew, I said it in Dutch,
I said it in German and Greek:
But I wholly forgot (and it vexes me much)
That English is what you speak!" Hunting of the Snark - Lewis Caroll
Match your presentation to the reader!
The joy of food lasts but an hour, of sleep but a day, of a woman, but a month, but the joy of a building lasts a lifetime. Syrian proverb.
Comments and observations leading to improvements in the translation of FIDIC Red & Yellow books into Romanian prior to approval by FIDIC (reference 'Preface to the Romanian edition')

Institution of Civil Engineers, Association of Chartered and Certified Accountants, Society of Construction Law, Dispute Resolution Board Foundation

B Sc(Hons) in Civil Engineering

©2016 All rights reserved.