Construction Law/Concurrent Delay


Dear Sir,

According to the FIDIC 1999 first edition (Modified) in UAE, Under the clause 8.4 after the point (e) they added two more point as,

But Provided that:

(f) The contractor has made reasonable and  proper efforts to mitigate such delay; and

(e) Any such delay which is concurrent with another delay for which the Contractor is responsible shall not be taken into account.

Please explain the exact meaning and advise the rights, according to the above two points(f & e) the employer advise that no entitlement an EoT to the contractor.

Thank you,

Dear Anwar,

These types of clause are becoming more common.  I would ask the Employer to justify his rejection as required by clause 20.1.  Then, you would have a chance to reject his thinking.

(f) this clause puts an obligation on the Contractor to make reasonable and proper efforts to mitigate any delay.  This forces the Contractor to prove that he did take efforts to mitigate the delay, which could be difficult, because both terms are subjective rather than objective.  

(e) This clause is designed to provide certainty, and to ensure that the Contractor is responsible if there are any concurrent delays, which are caused by both the Employer and the Contractor.  In the absence of such a clause, most authorities will allow, at worst, the Contractor an Extension of Time without costs if there are concurrent causes of delay.

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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.


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