extension of time claims

Tue, 2014-04-08 12:28

#1

Mike Testro

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Hi Mobeen

You can buy my ebook Principles of Delay Analysis from my website

www.expertdelayanalysis.com

£25.00 through paypal.

Best regards

Mike Testro

Sun, 2014-04-06 11:23

#2

mobeen kazim

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Can someone please give me the name of book that would briefly descibe the whole Extension of time procedures and documents required to produce for different cases and scnerios.

Tue, 2006-06-06 13:15

#3

Andrew Flowerdew

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Deys,

The contractor has a duty to mitigate delays even if the contract is silent, the extent of the mitigation will obviously depend on who’s delay it is.

If the contractor doesn’t and the delays are his own, then the Employers remedy is to receive LD’s. Obviously this brings into the equation for the contractor the cost of mitigation versus paying LD’s. It may be cheaper to pay LD’s.

If the delay is the Employers then usually the contractor will be entitled to a fair and reasonable EoT and as such doesn’t really have to mitigate the delay.

Can’t really help you much with your first question without more detail as EoT clauses are often ammended these days to cover the situation where a contractor is in delay and the Employer also creates a delay.

Tue, 2006-06-06 13:01

#4

deys nassah

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Andrew/Stuart

Is it really neccesary for the Contract wording to be present to cover such an event considering that JCT and FIDIC normally puts the burden on the Contractor to make "best endeavours to mitigate his and the Clients delays" hence if Contractors own delays are present at the time of issuing any instruction for changes by Client then such delays should be accountable when assessing any EOT???

Mon, 2006-06-05 14:30

#5

Stuart Ness

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Deys,

It may be a bit much to suggest that there is ‘validity’ in the actions of your Client, (and as Andrew correctly notes, it depends on the wording of the Contract!) but I would suggest that a Client may very well be able to give a net amount of EOT in which he has taken a number of positive and negative impacts upon the CP. In some Contracts it is specifically noted that the Client has the ability to reduce an EOT award after it has been granted, and assuming that the reasons for granting and reducing the EOT are contractually correct, there would appear to validity in the Client’s actions!

Hope this helps,

Stuart

www.rosmartin.com

Fri, 2006-06-02 18:56

#6

Andrew Flowerdew

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I know I said this a hundered times or ore but it all depends on what the contract says. Certainly the Client asessing the delay would be valid in most cases, then it’s all down to what the contract says happens if the contractor is also in delay - or if silent on the matter.

Sun, 2006-05-28 14:15

#7

deys nassah

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Hi there guys!

Is there any validity in Client assessing time impact due to a change instructions and then reducing the overall time impact by an amount say in weeks that the Contractor is in delay by at the time of the change request?

Dyes

Tue, 2006-03-14 11:42

#8

Andrew Flowerdew

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And just for the avoidance of doubt, it wasn’t based in English law either. A civil law of a European country on the Med.

Wed, 2006-03-08 02:43

#9

Stuart Ness

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Hi Andrew,

Yes, I have come across this practice too; indeed Employers have long been keen to ’red-line’ Standard Forms of Contract - particularly FIDIC based ones - with exclusion clauses!
And not just in the Middle East!! The problem is that such amended Contracts can be looked upon as ’standard’ over time, so Contractors ought to be aware of such practices too!

Cheers,

Stuart

www.rosmartin.com

Tue, 2006-03-07 19:53

#10

Andrew Flowerdew

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Stuart,

The particular contract I was thinking about when I said Employers are catching on comes from near, but not exactly in Irfans part of the world.

Mon, 2006-03-06 13:36

#11

Stuart Ness

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Irfan,

I think that some further clarification from you is required. It is unlikely that your Contract is subject to English law and I suggest that your Contract is likely to be silent on the matter of ‘overlapping’ delays.
Nor do I think that you are referring to concurrent delays, in which both the Contractor and the Owner are liable.

Projects do have many Critical Paths (and Sub-critical Paths), but I venture to suggest that the longest CP is the one that will determine your EOT, defined by the period beyond which the CP runs past the due completion date. That will provide the basis for your time related EOT costs if these are applicable.

The “other” claim that you refer to is likely to be not an EOT claim, but a claim for disruption. This is where the work activity is extended beyond its original duration due to an excusable delay. Consequently, you may well be entitled to a claim for disruption (based perhaps on loss of labour productivity) in one case, and for your time-related prolongation costs in the other.

Hope this helps,

Stuart

www.rosmartin.com

Mon, 2006-03-06 06:29

#12

Shahzad Munawar

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I totally agree with Andrew that in English law, the Contractor is entitled for EOT for the Employer’s delay even if they do overlap.

So overlapping of Employer’s delay does not impact your entitlement of EOT.

Better to read EOT clause once again, may be you find out a solution for that overlapping

Mon, 2006-02-20 10:59

#13

Mohammed Irfan Sh...

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Hi Friends,

For EOT claims, there is an overlap in two claims for the project and the activites are on different paths with both being on the critical path, the engineer comments that claims in the case of overlap would not be accepted.
But this is not acceptable contractually, as work stoppage in different areas would amount to disruption of works for two different activites and their superceeding activites, which are independent of each other.
Now though the picture is clear, what is the better way of putting this in front of the consultant/client.

Irfan

Mon, 2006-02-20 12:26

#14

Andrew Flowerdew

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Irfan,

First thing to do is read the EoT clause and see what it says about two overlapping delays - I assume from this you mean they are happening at the same time.

Ordinarilly, at least in English law, you would be entitled to an EoT for the Employer delay even if they do overlap.

Employers are catching on to this and rewriting EoT clauses to eliminate this, therefore I suggest you read the clause and see what it says.

Mon, 2005-11-14 06:08

#15

Andrew Flowerdew

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Stuart,

Don’t disagree as regards when a dispute could come into being if the standard form of FIDIC is being used unamended. I did say that whatever period was allowed in the contract should be used.

It is many years since I have seen any standard form used without some form of ammendment and I am very aware that anything discussed on this site is usually at best based on one side of the story and 10% of the facts. I would therefore prefer to say 14, 28 days or whatever’s in the contract than catagoricaly state a period or say the contract doesn’t require a reply in a certain time - I have seen such clauses inserted.

I would expect the people reading my postings to take on board the idea, think abit and adapt them if required to fit thier circumstances (usually thier contract!!!) rather than take it absolutely literally. The only time I give unqualified advice to be taken literally is when I know all the facts and I’m getting paid for it!!!

Mon, 2005-11-14 05:21

#16

Stuart Ness

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Andrew,

As noted below, FIDIC does not require the Engineer’s response within a stated time frame, other than in Sub-Clause 67.1. Unfortunately, I have seen Engineers become very indignant that the Contractor should seek to impose a time frame for a response. I would therefore advocate that in such circumstances, the Contractor should not attempt to impose a time limit, but if and when the Engineer (or in reality , his Representative under Sub-clause 2.2) fails to respond within a time that the Contractor considers to be reasonable, then the Contractor should write to the Employer giving notice that the Engineer (or his Representative) has failed to respond to correspondence that is vital for the success of the project.

I have seen this tactic work very successfully in the Contractor’s favour!! ;-)

Under FIDIC, I suggest that a dispute does not exist until the subject matter is refused under Sub-Clause 67.1 or if the Engineer fails to make a determination within 84 days as required by Sub-Clause 67.1.

Cheers,

Stuart

www.rosmartin.com

Mon, 2005-11-14 05:17

#17

Andrew Flowerdew

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Stuart,

Must be half asleep this morning, only read half your posting - yes you are right in that the Engineer can simply reply saying he is still considering the issues, but he HAS to reply and simply not reply at all - I’d allow that to happen once and then follow his reply by asking for a formal decision within whatever timescale the contract allows for a reply or a reasonable time if not.

Sat the contracts states 28 days for a reply.

You write, Engineer replies 28 days later saying he’s still considering. You write back, the Engineer has another 28 days to consider - probably 55 - 60 days in total which I would suggest is ample time to consider in principal most claims and be able to come to some form of decision regarding the contractors liability or an interim EoT.

Mon, 2005-11-14 05:01

#18

Andrew Flowerdew

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Stuart,

The principle of a letter "ignored" is an long used and established way of proving a dispute exists. There is nothing wrong in asking for a reply in a given time, often it is stated in the contract that the parties have 14, 20, 28days etc to respond to letters and this is the time frame to use.

Mon, 2005-11-14 04:43

#19

Stuart Ness

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Shahzad,

There are several sequential hoops to be jumped through before the Contractor can issue a Notice of Arbitration. I would suggest that the most important notice is the one that started this thread – the requirement to give notice of the intention to claim under Sub-Clause 53.1, because if the Contractor misses this one, he misses all the other chances that follow downstream from that.

Stuart

www.rosmartin.com

Mon, 2005-11-14 04:39

#20

Stuart Ness

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Irfan,

The Engineer is under no obligation to make a determination on the Contractor’s claim submission within 84 or 70 days (or any other period of fixed time.)

It is only after he has (eventually?) made his determination that the Contractor, if unhappy with that determination, can ask for a formal ‘Engineer’s Decision’ under Sub-Clause 67.1. In such circumstances, the Engineer must give his decision within 84 days.

If he fails to give his Engineer’s Decision within this 84 day period, then within a further 70 days, the Contractor can submit the dispute to arbitration.

But all of this is dependant upon the Engineer making an initial determination – within a unspecified period other than it should be within a reasonable time - in regard to the initial claim.

Hope this helps

Stuart

www.rosmartin.com

Mon, 2005-11-14 04:32

#21

Stuart Ness

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Emre,

While you are correct to note that the Engineer is required to make a determination within a period that ‘…shall not be unreasonably…delayed.’, as noted in Sub-Clause 1.5, there is no contractual definition of what a reasonable time is for making his determination.

Certainly, if the failure of the Engineer to make a determination in a timely manner begins to impact the overall schedule of the project, then you should complain to the Employer that the Engineer’s delaying tactics are having a detrimental effect on the project. Sometimes the delay in getting an Engineer’s determination can influence the costs involved and it may be necessary to claim additionally for interest/finance charges that have accrued due to the late determination by the Engineer.

It is only when the Contractor seeks an Engineer’s Decision under Sub-Clause 67.1 that the Engineer is obliged to produce a response within a specified time frame (84 days).

Hope this helps

Stuart

www.rosmartin.com

Mon, 2005-11-14 04:23

#22

Stuart Ness

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Andrew,

I am not sure that a qualification in the Notice provision as to the time of the Engineer’s response, is appropriate.

This pre-supposes that the Engineer is a lazy so-and-so, and I suggest that it is improper to demand that he replies in anything other than a reasonable time.

I believe that the Notice of claim should be minimal, as noted in Sub-Clause 53.1, and that if there is no reply with a ‘reasonable time’ (cough! cough!!) thereafter, the Contractor should write separately to the Engineer (copy to the Employer) about the effect of the delay in the claim response (which itself can be a cause of an extension to the claim!).

Also, I am not sure that a claim that is ignored represents a dispute; the Engineering can always state that he is carrying out his own investigation and that he is giving the matter ‘due consideration.’

Stuart

www.rosmartin.com

Mon, 2005-11-14 04:13

#23

Stuart Ness

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Emre,

Please also note that if your claim includes for an EOT, then if you fail to submit the claim within the 28 day period after giving notice, then you will lose your right to claim additional time, as noted in Sub-Clause 44.2.

There is no time limit as to when the Engineer must make an award in regard to a claim for EOT, but he must ‘…determine the amount of such extension…’ after consultation with the Employer and the Contractor. (Sub-Clause 44.1 refers). It is implied, however, that the Engineer must make a decision on the EOT claim in sufficient time so as not to cause the Contractor LADs or to lose any bonuses.
However, if you have a ‘rolling claim’ situation where the EOT claim goes on over a period of time and you are entitled to an interim EOT, then the Engineer must make an interim determination ‘…without undue delay…’ under Sub-Clause 44.3 - but note that there is no specific time frame within which the Engineer has to make such an award.

Hope this helps,

Stuart

www.rosmartin.com

Mon, 2005-11-14 03:59

#24

Stuart Ness

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Emre,

I should also add that the information to be provided under the notice of claim in accordance with Sub-Clause 53.1 does not need to be extensive. Indeed, brevity may be to your advantage.

It is sufficient simply to refer to the root cause, if possible giving the date of the event, and simply confirming that it is the Contractor’s intention to present and purse a claim, in accordance with Clause 53 of the Conditions of Contract, for additional costs (and an extension of time). I suggest that you do not put anything in the notice of claim with regard to expected value or time, as this may prejudice your real claim once that becomes clearer later on.

And again, I repeat that you should not rush into submitting your claim; use as much of the notice period as you need to get and keep the records that you will need.

Hope this helps,

Stuart

www.rosmartin.com

Mon, 2005-11-14 03:52

#25

Stuart Ness

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Emre,

Regarding the requirement of the Contractor to give notice under Sub-Clause 53.1 of FIDIC (4th. Edition. Civils), this is quite straightforward: the Contractor is required to give notice of his intention to make a claim to the Engineer within 28 days after the event causing the claim. This clause does not require the Contractor to make the claim at this time; merely that he intends to produce a claim at a later date.

The claim itself is to be submitted in accordance with Sub-clause 53.3.
Here, within 28 days (or as otherwise agreed!), the Contractor is required to submit his claim to the Engineer, giving details of the grounds for the claim and full particulars of the amounts claimed.

These time limits relate only to the submission of i) giving notice of the intention to claim, and ii) the provision of the claim itself.
Note that the second 28-day period of notice related to the submission of the claim, is calculated from the date of giving notice of the claim under 53.1, and not 28 days after the end of the first period of notice.
Therefore, it may be to your advantage to wait before putting in the notice of intention to claim under 53.1 as this will give you more time overall to prepare and present your claim.

Hope this helps,

Stuart

www.rosmartin.com

Sat, 2005-11-12 18:23

#26

Andrew Flowerdew

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Irfan,

Unless somewhere in the contract there is a time period stated then your unanwsered letter whatever it has on it, is not proof of a dispute on it’s own. And without proof of dispute an adjudictor or arbitrator has no juristiction to act. Also you have no authority under the contract to refer it to a third party dispute resolution procedure either.

The story being that until you get an answer to your letter how do you know that the Engineer doesn’t agree with it!!!! - or probably do know but how can you provr it. If you have agreed minutes of a meeting or similar where the Engineer has stated he disagreement then this might be proof.

If you haven’t I would write requesting a written decision on the claim within 10, 14 days or whatever seems reasonable and if he doesn’t reply you have sufficient proof of a dispute to go to arbitration or whatever dispute resolution procedure your contract has in it.

One word of warning - read that procedure carefully and make sure you comply 100% with all notices that have to be given, time periods for giving notices, etc.

Sat, 2005-11-12 16:17

#27

Shahzad Munawar

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In your case, notice should be given for the purpose of arbitration (clause 67.1) otherwise your claims become time barred.

Further u read clauses related to Settlement of Disputes and Arbitartion in detalis with FIDIC commentary , it clearly gives the intention of such notices.

Sat, 2005-11-12 10:22

#28

Mohammed Irfan Sh...

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Hi Everryone,

For the claims notice, i have been forwarding all my notices with subject of the letter as ’ Notice of Claims - _________’, as per the clause 1.5 to the literal effect, much to the frustration of the engineer and better effect.
Going with the query of Emre, is it that the work is completed without the instruction of the engineer and the notice of claim is forwarded afterwards. Practically it is not possible. For any Notice of Claims, it might be due to any of the reasons leading to variations and there is no variation without the instruction of the engineer as per clause 51.1. For verbal instructions, Confirmation of verbal instruction can be taken for support of the Notice of Claim.

Now my query is ’ Can’t a delay by the engineer to finalise claim within 84 days or 70 days make it automatically be referred as a dispute and the notice is for the sole purpose of arbitration’(clause 67.1)

Sat, 2005-11-12 08:57

#29

Emre Bayrak

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Andrew

With thanking and agreement with you comment, even we didn’t put your additional statements, Clause 1.5 (I am using the FIDIC 4th edition) it says ’Any such consent, approval, certificate or determination shall not reasonably be withheld or delayed.

So what I am questioning to myself there must be an acceptable definition of the status "withheld or delayed" coming from general practice or past experienced practices of industry that we may refer in case of any delay of response from engineer.

Regards
Emre

Sat, 2005-11-12 08:09

#30

Andrew Flowerdew

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Emre,

When giving notice of a claim you should always put in something like:

Please respond in writing by [date] - or the same with a period of days. The period of days or date should be reasonable and usually follows the time period in the contract (if given) for replies.

If the Engineer does not comply then he is said to have "ignored" the letter and you are in dispute. If you go to adjudication/arbitration etc the first thing you have to prove is that you are actually in dispute. An unanwsered letter with no time limit for reply is no more than an unawsered letter and does not constitute a dispute. The same unawsered letter with the above in will be sufficient to prove a dispute.

Sat, 2005-11-12 06:21

#31

Shahzad Munawar

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The INTENSION mentioned in Clause 53.1 of FIDIC means to give only intension not information of events which are totally beyond the control of Contractor and cause the delay of Project.

You may also add this sentence in your Intension letter:

" Due to this event, detailed substantiation and associated cost will be submitted within 28 days.”

Sat, 2005-11-12 03:13

#32

Emre Bayrak

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Dear All
I want to continue discussion with a new question.

Clause 53.1 in fidic says ’he shall give notice of his intension to the engineer with a copy to engineer, with in 28 days after the event giving rise to the claim has first arisen’

Clause 53.3 with in 28 days or such other reasonable time as maybe agreed by the engineer, of giving notice under 53.1, the contractor shall send to the engineer an account giving detailed.....

What exactly we mean by the INTENSION mentioned at 53.1 is it just a intension or information of expected EOT and cost?

What level of detail generally can be excepted as per clause 53.1? So do we have 28+28 days to finalize the amount of claim after the event giving rise to the claim ?

And finally as stated in the first message what we shall do if engineer does not reply the claim for an long time? Is there a time limit for their reply also?

Regards

Emre

Wed, 2005-11-02 05:16

#33

Stuart Ness

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Irfan,

Another important reason for not waiting on settlement of earlier claims before submitting another one, is that you must ensure that your claim submissions and notices are made within the time limitations established in the Contract.

It is no defence to say that you missed the deadline and was late with your subsequent claim submission because agreement had not been reached on an earlier submission!!! ;-)

Hope this helps

Cheers,

Stuart

www.rosmartin.com

Tue, 2005-11-01 04:39

#34

Mohammed Irfan Sh...

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Hi Friends,
Thanks for your interest in the topic posted by me.
Now considering the previous advice by stuart to keep on posting the claims without waiting for previous claims, it is of more useful at any level because any updates in the programme for that particular period between the approval of the EOT will show more activities in delay and negative float which makes any basis of claim stronger at the submittal time.
Definitely, isnt it?

Regards,

Irfan

Mon, 2005-10-31 06:35

#35

Andrew Flowerdew

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Irfan,

EoT claims made during the progress of the works prior to events happening are best estimates only. Alot of people don’t realise (including the Engineer) that the Engineer can revisit an EoT claim and review it at a later date, extending it further if required. He can NOT normally reduce the EoT duration once awarded however and therefore the first award is usually conservative. As usual, check your contract clauses but the above situation is the normal case.

Therefore put in your claims, expect to get something less than you asked for but go back if required at a later date and ask the Engineer to review any award if you have a valid case for him to do so.

Unfortunately you will have to work to what is awarded in the intervening time even if you think its unreasonable.

Mon, 2005-10-31 05:26

#36

Stuart Ness

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Hi Irfan,

Your concerns of how to claim for an EOT without having had a previous EOT claim approved is valid.

My view is that you should stand by the previous claim submission that you made and that any subsequent EOT claim should be on the basis that your earlier claims are fully valid.

This also helps to analyse each claim separately and chronologically when it comes to a settlement – global or otherwise – and you may have to do some fine-tuning work if earlier claims are settled at a level that is substantially less that your submission.
In addition, if you treat each claim individually, then if one claim falls, it doesn’t necessarily mean that the whole house of cards collapses too!

Hope this helps,

Stuart

www.rosmartin.com

Mon, 2005-10-24 19:11

#37

Clive Randall

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Ifran
My son thinks im a superstar
but
I am sometimes quoted in articles and i have written a few
As to your question its a real conundrum my answer is to assume on your programme that all claims will be successfull until proved otherwise
as each claim is resolved adjust the programme and if required adjust the time periods in other claims.
Generally a global settlement will take place decided often by those who will not consider the content of the claim but merely the claimed duration and quantum. The more time and money you claim the more likely it is that something will come your way. However do not make frivilous or unsubstantiated claims as this will surely affect your final wrap up deal
Clive

Mon, 2005-10-24 18:18

#38

Andrew Flowerdew

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Is it 28 days from your submission of a notice to claim an EOT? - if so that asks the question is there any stipulation on when you have to put a notice in

OR

Is it 28 days from the event causing the delay happening?

Your post suggests the first which put’s a very different meaning on things than if it’s the second.

Fri, 2005-10-21 00:22

#39

Mohammed Irfan Sh...

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Hi stuart,
Hi Clive

Clive, are u into magazine articles? i think i read your name somewhere.

For EOT claims, how can i clarify my claim in any place till i m not sure what is approved for previous claims as any delay for succeeding disruption of work or revisions is needed to be applied on the updated baseline programme.

:-/

Regards

Irfan

Mon, 2005-10-17 03:03

#40

Stuart Ness

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Irfan,

As Clive has already noted, you would be better not to bundle all of your claims together, so that the merits (or otherwise) of each one can be better assessed and argued! In addition, it is usually better to keep the resultant costs of each claim separate from one another.

If you do not submit each claim within the 28 day time frame, you may well be time barred and excluded, but note that the initial submission may not necessarily have to be fully detailed to the last item. The Client’s representatives will always ask for more and more details, and these can be dealt with under less pressure after you have lodged the initial claim submission.

The important thing at this stage is to submit within the 28 day period, and then deal with the details and updates after that.

Hope this helps,

Stuart

www.rosmartin.com

Fri, 2005-10-14 21:45

#41

Clive Randall

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By the sounds of it, each and every claim must be submitted within 28 days of the claim occurring.

Be carefull how the contract interprets when the 28 days start.

I reckon you will be time barred if you do not comply with the condition precedent of the 28 days.

I would suggest you do not bundle claims as its easioer to manage individual claims where documents must be unpdated monthly if they all go in at the same time they will all require updating at the same time.

Kind rtegards
Clive

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