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Construction Law/Proper time to give notice for claim/EOT

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QUESTION: Dear Sir;

here is the relevant clause of EoT in our governmental Contract:
"If the Contractor deems itself deserves a time extension , the Engineer shall evaluate and submit its recommendations for the Employer to allow the extension time and shall notify the Contractor thereof. However, the Engineer shall not be obliged to consider any additional or extra works or any other special conditions unless the Contractor submits, for the Engineer within twenty eight (28) days from the commencement date of such works or circumstances, full and detailed data regarding the time extension to audit and review such a request in its due course".

The case is:
in the beginning and before the Contractor started design works and submissions, he raised a notice that new code of the U-value has been issued and this will cause more thickness to the walls hence more cost (he claimed for 50 millions without any delay notice on that time), after 9 months of debates and letters going back and forth and meetings, etc. The Employer decided and send instruction to the Contractor (thru us the consultant) of the value that he should follow. The Contractor immediately raised a notice telling that according to the clause above, the delay in giving the instruction to him is causing 5 months delay for the overall finish date attaching an update program (considering that the 28 days of raising his claim are from the date of the final instruction).

Now, in my opinion, he should have submitted his notice within 28 days from the point that the delay has started during the 9 months of debate noting that during this period he warned once that "please instruct me with the value I should follow to avoid more delay to the project (without giving any details or updated program)"

it is not logical to wait until he gets the instruction after 9 months then tell us : "Sorry the project is delayed by 5 months now" .. Right??

Please give me your opinion and also define in general what is the proper baseline date from which the 28 days begin that the Contractor should raises his claim as in FIDIC (is it from the event itself or from the point the Contractor starts to suffer delay due to the event), THANK YOU Sir

ANSWER: Dear Khaled,

The time starts from the date of the instruction to amend the U-value.  How can it take nine months to resolve this simple question, obey the law or disobey the law?  Of course, there was a financial affect, but this financial affect increased due to the delay in issuing the instruction.  Note that the clause states that 'the Engineer shall not be obliged to...'.  It does not state that the the Contractor loses his rights to any claim.  Considering that this delay has been caused by the indecision of the Employer and his advisers, no legal process would rule in favour of the Employer, if the Contractor's claim was refused on the basis of time.  

If I had been the Contractor, I would have proceeded with all speed to design and construct the project in accordance with the Contract, waiting for your instruction.  Once I had brought the change and its affect to your attention, I would have fulfilled my responsibility.  Now, it was up to you to amend the Employer's Requirements.  Once I received the instruction, I would have priced the change, including the cost of redesign and amending any work that had been done prior to receipt of the instruction.



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

QUESTION: Dear Sir

Here is the story

1- the design of the Contractor submitted with the tender was with no mentioning to the U-value and with 20 cm thickness
2- in post contract; the Contractor raised that a new code is issued with U-value=x which will increase the thickness to 22 cm
3- the Engineer checked the new code and found that the applicable U-value to be used is y which needs might needs more thickness than 22 cm
4- an instruction issued to the Cont. after getting approval from the Employer to follow the correct U-value and submit the design without any delay.
5- the Cont. debates that this will cost more money as variation
6- debates between all parties whether to use u-value (x) or (y) had taken place for months
7- At the end, the Employer disregarded the recommendation of the Engineer and decided to use another way which led to a new value (z)
8- by accident (I swear) ; (z) was = (x)
9- a final instruction issued to the Cont. to use (z) ...(this was after the 9 months)
10- Engineer still insists that he was right and (y) should be followed but of course he complied with the Empl. instructions as well
11- so the debates was from all parties, I still see that it was the responsibility of the Contractor to highlight the delay in the proper time and not to leave the Engineer/Employer studying the matter without knowing there is a delay. The base line from which the 28 days begins is when a delay started not the instruction, what do you thin now, Sir?
12- Please clarify the general concept of those 28 days as in FIDIC (e.g. a part of the Site is to be handed over by the Empl. to the Cont. on date (m), on (m) the Empl. was not ready to hand over the part of the site but the Cont. started to suffer the delay in later time (n) , when , according to FIDIC, should the Contr. raise his claim notice, within 28 days after (m) or (n)?

Thank you,

Answer
Dear Khaled,

The argument is that the Contractor could not know that there was a delay until the instruction was issued.  Once the instruction was issued then the Contractor could quantify his delay.  The design issued with the offer is a distraction, depending on the time that the Contractor had to prepare his tender and on the date at which the U value was varied.  Looks to me as if the Engineer has not managed this problem very effectively and is trying to blame the Contractor for this lack of management.  

12. (n) - please download and study the SCL Protocol on Delay and Disruption www.eotprotocol.com which has been updated recently.  

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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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Value . . .
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