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Handling an EOT Claim under FIDIC Contracts

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Handling a claim for an extension of time (EOT) under FIDIC contracts involves several critical steps. The following outlines the process and key considerations based on FIDIC's guidance and best practices.

Identify the Cause for Delay​

The contractor must first determine whether the delay falls within the allowable causes for an extension under the contract. Typical causes include:

Delayed access to the site (Sub-Clause 2.1)​. Delayed instructions or drawings from the Engineer (Sub-Clause 1.9)​. Unforeseeable physical conditions (Sub-Clause 4.12). Delays caused by variations (Sub-Clause 13.3).

Notice of Delay​

The contractor is required to submit a notice of delay as soon as the delay becomes apparent. The notice should be issued within 28 days of the occurrence of the event causing the delay, as stipulated in Sub-Clause 20.1 (Contractor's Claims)​. Failing to issue a timely notice may bar the contractor from entitlement to an extension of time.

Submit the Claim​

After issuing the notice, the contractor should prepare and submit a detailed claim to the Engineer. The submission should include:

Description of the event causing the delay. Date of occurrence and the impact on the construction schedule. Cause-and-effect analysis showing how the delay affects the completion date. Supporting documentation such as site records, drawings, correspondence, and photos.

Particulars and Updates​

The contractor should provide full particulars of the claim as soon as possible, but no later than 42 days after the occurrence of the delay or the end of the event causing the delay. If the event is ongoing, interim claims should be submitted, followed by a final submission when the impact of the event is fully known​.

Engineer’s Determination​

The Engineer is responsible for reviewing the claim and making a determination in accordance with Sub-Clause 3.5. This involves consulting both parties, assessing the information provided, and making a fair decision. The Engineer should respond to the claim within 42 days of receiving the detailed particulars.

Amendment to the Time for Completion​

If the Engineer approves the claim, the Time for Completion should be amended accordingly. The contractor’s new Completion Date will reflect the agreed-upon extension, allowing for relief from liquidated damages during the extended period.

Dispute Resolution (if necessary)​

If the claim is rejected or not fully accepted, the contractor can escalate the dispute to a Dispute Adjudication Board (DAB), and ultimately to arbitration if necessary, under Sub-Clause 20.4 and 20.6 respectively​.

Additional Considerations​

  • Record Keeping: Keep meticulous records of all events, instructions, and communications related to the delay. This documentation is critical in supporting the claim​.
  • Concurrency and Mitigation: Analyze concurrent delays carefully and demonstrate the steps taken to mitigate the delay’s impact​.
  • Contract-Specific Provisions: Each FIDIC contract (e.g., Red, Yellow, Silver Books) has specific clauses and requirements related to EOT, so it’s important to refer to the specific contract edition being used​.

By adhering to these steps and complying with FIDIC’s requirements, contractors can effectively handle and substantiate their claims for an extension of time.