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Construction Law/Delay of Material/Drawings

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QUESTION: Dear Sir

According to the 1987 FIDIC SCL 6.4, the Contractor can claim for the EOT & Prolongation Cost for the Delay of the Material & Shop drawing approvals by the Employer.

However under 1999 FIDIC SCL 1.9, the Contractor cannot claim for the EOT & Prolongation Cost for the same delay.

The reason is different of definitions under SCL 1.1 (b) (iii) & 1.1.1.6 under the 1987 & 1999 FIDIC Contracts.

Please give your comments

Br

Sudantha

ANSWER: Dear Sudantha,

Thank you for this question.


If I might guide you to sub-clause 1.9(a) and (b) you will see that the Contractor can claim both extension of time and Cost plus profit. It is only if the Engineer's failure was caused by the Contractor that the Contractor is not permitted to claim; this is set out in the final paragraph of sub-clause 1.9.

In the 1987 version of FIDIC the sub-clause did not expressly refer to the Contractor being culpable for the Engineer's default. That is the main difference between the two forms in this particular area. Under the 1987 form if the Contractor had contributed to the Engineer's default the situation may not have been much different in theory, but the outcome would depend upon the law governing the contract.


I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line; or visit www.cerno.org

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John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)


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

QUESTION: Dear Sir

Could the Contractor claim for the EOT/Cost/Profit under SCL 1.9, 1999 FIDIC if the Engineer delayed for the approval of Shop Drawings & Materials submit?

Because according to the first para of the above Clause,Shop Drawings & Materials are not belongs to the'drawing or instruction'.

However,it belongs to last para'Contractor's Documents'.

Could you give your comment.

Br

Sudantha

Answer
Dear Sudantha,

Thank you for this question.

In theory any delay by the Engineer in reviewing, commenting and/or approving shop drawings can be grounds for a claim from the Contractor for additional time and/or costs; everything will depend upon the circumstances. Whether the claim would be made under sub-clause 1.1.9 or, for example, under sub-clause 8.4 (Extension of Time for Completion) will also be dependent upon the circumstances.

Any duty to be performed by the Engineer must be performed within a reasonable time, and should be unreasonably withheld or delayed. Each case must, therefore, be considered on its circumstances. There is no automatic right for the Contractor, who must prove his claim on the balance of probabilities.


I hope that this assists you.

Kind regards,
John Dowse

Follow me on Twitter: @CernoOrg
For my regular industry newsletter e-mail to info@cerno.org, stating SUBSCRIBE in the subject line; or visit www.cerno.org

Training and consulting services are available, bespoke to companies and individuals.

John Dowse can be contacted by e-mail to info@cerno.org (When e-mailing, please include “AllExperts” in the subject line.)

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John Dowse

Expertise

Legal; contract interpretation; quantum; delay analysis. Practitioner in arbitration, adjudication and mediation.

Experience

Thirty-three (33) years experience in building and construction, at all levels both within contracting and consulting organisations. Practising arbitrator, adjudicator, and mediator. Faculty approved trainer for the Chartered Institute of Arbitrators. Lecturer on construction contract forms and dispute resolution practices.

Organizations
Chartered Institution of Civil Engineering Surveyors Chartered Institute of Arbitrators Institute of Directors Society of Construction Arbitrators

Publications
Various UK and International construction and legal publications.

Education/Credentials
LLB (Hons), Pg Dip (Legal Practice), MCInstCES MCIArb MIOD Barrister

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