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Construction Law/Interim EOT- Scope Change

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QUESTION: Dear Sir,

I am asking for your expert advice kindly.

When there is no provision in the contract for granting interim extension of time, the Engineer when he failed to get the determination done and approval of the Employer on time, he granted interim extension of time on four occasions.

Can he give interim extension of time when the contract has no provision for granting interim extension of time?

What would be the implication?

How can one check that there happened to be Change of Scope in a construction contract?

Being deeply indebted in advance to hearing your expert advice, i remain

Alemu

ANSWER: Dear Mr Alemu,
It is not the general practice to give the EOT without the contractor asking for EOT in writing. It is a rare case where the engineer does not want the contractor to carry forward till the end of the project, the delays accrued due to delayed approvals.
Normally when the contractor claims EOT towards the end of the project, the engineer will assess the delays by contractor, delays by engineer, delays by owner, force majure if any or opportunities like scope reduction and determine the net impact and approve the EOT. Engineer can only recommend the EOT to the owner. As per FIDIC, the engineer CANNOT amend the contract. Because, EOT is an essential contractual obligation and the contract is between the owner and the contractor.
In your case, the impact is, the contractor is at advantage and he got the EOT even before it was asked.
The project scope is collectively covered in drawings, priced BOQ and technical specs (and in order of priority as per FIDIC clause 1.5). If the engineer or owner is telling to do anything outside what is given in the above is the change in the scope even if it is removed from the original scope.
I hope i have clarified adequately.
regards,
R Sivaraman

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

QUESTION: Dear Sir,

I am deeply indebted to your expert advice.

As I felt that you did not understand my question, I have here by addressed it again.

Actually, the granted interim extensions were after the Contractor claimed. But as the Engineer could not get approval for what he determined from the Employer, he started to granting interim extension before the original completion time expires to avoid any risk of the time becoming at large.

However, the contract did not have provision for granting interim extension of time.

Can he give interim extension of time when the contract has no provision for granting interim extension of time?

What would be the implication?

I am thankful in advance to hearing your expert advice.

Alemu

Answer
Dear Mr Alemu,
I understood the question now.
From your question, it is clear that there is a conflict between the engineer's determination and employer.
The contract does not have the provision for granting interim extension of time is NOT a problem here.
Extension of time is an amendment to contract.
If it is a FIDIC contract, the engineer does not have authority to give EOT since the client can anytime challenge the EOT granted by Engineer and importantly, the contract is between Employer and Contractor.
In that case, the impact is the EOT has no value if it is not accepted and signed by Employer.
If it is not a FIDIC contract, may be in future, after considering the other factors, the Employer may endorse the EOT given by Engineer.
I hope this clarifies your doubt.
regards,
r sivaraman

Construction Law

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R.Sivaraman

Expertise

I can answer the questions related to Engineering design, Project management and contract management

Experience

I have 20 years of experience across a wide spectrum of engineering and project management knowledge areas

Organizations
Member in the Institution of Engineers Member in the Institution of technical arbitrators

Education/Credentials
Bachelors in Civil Engineering Masters in Business Administration

Past/Present Clients
Capgemini Johnson & Johnson EMC FM Global SABIC

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