Construction Law/Concurrent Delay

Advertisement


Question
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,

Answer
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.

Construction Law

All Answers


Answers by Expert:


Ask Experts

Volunteer


Peter M. Elliott

Expertise

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.

Experience

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')

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

Education/Credentials
B Sc(Hons) in Civil Engineering

©2016 About.com. All rights reserved.