Samer,

Raphael is in New York and I doubt from what he said that he is using FIDIC.

Lawrence,

The contractor can ask for an EoT for any reason - he’s only going to get one if the the reason is legitimate though.

Don’t think the US is any different, what you have described goes on the world over. My only comment is that the lack of any decision by the Engineer must be one of the biggest reasons for disputes going down the legal route, but hey, keeps me in a job.

More contracts are now taking the decision over EoT’s and valuations out of the Engineers hands and charging some other party not directly involved in the project with these responsibilities. Don’t know of any standard form contract that have adopted this approach yet but it is becoming more commonplace, (and not a bad idea in my opinion).

Ahmad,

The Engineer is employed under an agreement with the Employer. Part of that agreement is to administer the main contract in accordance with the terms of the main contract - i.e, carry out those tasks that it is agreed between the Employer and Contractor under the main contract that the Engineer will carry out.

One of those tasks is to determine what EoT due. There is no intention, expressly or otherwise, in the main contract that anyone other than the Engineer will carry this task out.

It is 100% the Engineers responsibility to do this although there may be an obligation to consult and discuss, (get both sides of the story), with the Employer and Contractor prior to making that decision. This in no way relieves or alters the position that it is ultimately the Engineers job, and his/hers alone, to make the final decision.

In making a proper and valid decision I would suggest that it is inherent in the decision process that the Engineer assesses and analyse the project records.

Anoon,

It is long established that the Engineer may not be totally impartial - the contract provides a safeguard against this by allowing the Engineers decision to be challenged by the Employer or Contractor and then reviewed and set aside by some means.

Traditionally in construction an Engineers decision can been reviewed and if applicable, set aside by an arbitrator, but these days it could be one of many different processes.

It’s the main reason why you have clauses in a contract concerning dispute resolution and arbitration, or court, or dispute boards, etc, etc.

Whatever the process, it’s the parties chosen forum to challenge and have reviewed an Engineers decision, (amongst other things). It’s a very large part of the reason why any of these processes exist in the contract.

Happy New Year to All,

"The whole idea is that someone other than the Employer or Contractor, (both interested parties in the outcome), will carry out these things in an impartial and reasonable manner." quote from Andrew

Someone - not necessarily the Engineer?

Vamsi,

"Is Forensic Delay Analysis, in case of complicated disputes, a variation to the scope of Engineers work?"

Generally no as forensic delay analysis will only have to be carried out if the Engineer hasn’t done his/her job in the first place. In fact forensic delay analysis is often required as a result of a breach of contract by the Engineer.

Most standard form contracts between the Employer and Main Contractor are entered into based on the understanding that a third party, (Engineer, Architect, Contract Administrator), will reasonably and impartially determine certain contractual rights and obligations. The two most important ones being valuations and any EoT due.

It is 100% the responsibility of the Engineer to do these tasks, not the Employers or Contractors. The whole idea is that someone other than the Employer or Contractor, (both interested parties in the outcome), will carry out these things in an impartial and reasonable manner, (Yeh!!!!!!!!!! - well that’s the idea).

Contractually, in order to help the Engineer do this the Contractor is usually obliged to keep records to support his claim and submit these to the Engineer. Other than that there is usually no further obligation on the Contractor.

Based on this info and any other that the Engineer chooses to keep whilst the job progresses, the Engineer makes his decision - under most standard forms it is intended that the Engineer makes his decision during the project, not at the end.

Therefore the decision should be taken at the time of the delay, (or shortly afterwards), and no real "forensic" analysis is required - taking "forensic" to mean retrospectively looking into the facts long after the event. Basically, if the Engineer has kept appropriate records during the job and these are supplemented by the Contractor’s records, the Engineer should have enough info to analyse and make a decision.

That’s one of the job the Engineer’s employed to do and certainly not a variation.

If the Engineer fails to make a decision or makes a seriously wrong one and it all end’s in a dispute which then requires forensic delay analysis then I’ve always supported the idea that there should be some form of compensation due to both Employer and Contractor from the Engineer. It appears fair to me that if the Engineer actions or most often, inactions, have caused the dispute then there should be some form of compensation due.

Common law systems do not generally support this idea but civil law systems often do. For example, in France, if an Architect is responsible for more than 25% of any EoT due, (eg late issue of drawings or similar), then the Architect has to pay the Contractor compensation. But in France a lot of contracts are design and build rather than employer design, contractor build, therefore the basic relationship between Employer, Architect, (or Engineer), is different.

The bottom line is that it is 100% the Engineer’s job to determine EoT’s, he should keep such records that he thinks he will need and ask the contractor for further records in the event of a claim. If the contractor fails to provide them, he should make a reasonable and impartial decision during the progress of the works based on what he knows.

If the contractor in not providing an electronic copy of the programme hinders the Engineer determination such that a lesser or no EoT is granted, then tough Mr Contractor, it isn’t an unreasonable request to make. If it ends in a costly dispute, as long as the Engineer has properly and impartially applied his mind to determining the EoT due on the information available, the dispute isn’t the Engineers fault.

No wonder projects go to unnecessary disputes, arbitration and to some, it goes as far as litigation because parties are not cooperating. In this case, because one party does not want to provide the engineer with an electronic copy of the programme(seems like there’s a dispute).

I had been involved in an arbitration case just recently. From my experience, the only real winners in such situation are people who were not actually involved in the project such as delay analysts and lawyers.

Quite honestly, it’s not worth it.

Hi Samad,

If I were the contractor, is PDF copy enough for you? Supposing I was using another software (i.e. Spider).

Under FIDIC and most standard forms, contrary to popular belief, it is not up to the contractor to prove his case. The wording of FIDIC is along the lines of:

"the Engineer shall determine the amount of such extension and shall notify the Contractor accordingly"; and

"within 28 days, or such other reasonable time as may be agreed by the Engineer after such notification submitted to the Engineer, the contractor shall submit detailed particulars of any extension of time to which he may consider himself entitled in order that such submission may be investigated at the time."

"Upon the happening of the event referred to..., the Contractor shall keep such contemporary records as may reasonably be necessary to support any claim he may subsequently wish to make. Without necessarily admitting the Employer’s liability, the Engineer shall ... inspect such contemporary records and may instruct the Contractor to keep any further contemporary records as are reasonable and may be material to the claim of which notice has been given."

"Within 28 days, or such other reasonable time as may be agreed by the Engineer,... the Contractor shall send to the Engineer an account giving detailed particulars of the amount claimed and the grounds upon which the claim is based."

"If the Contractor fails to comply with any of the provisions of this Clause in respect of any claim which he seeks to make, his entitlement to payment in respect thereof shall not exceed such amount as the Engineer or any arbitrator or arbitrators appointed ... considers to be verified by contemporary records (whether or not such records were
brought to the Engineer’s notice ....)"

The onus is on the Engineer to determine the extension of time and the contractor to provide such records to support his claim - that doesn’t actually include the contractor doing ANY form of analysis.

Contractually, it is up to the Engineer to gather sufficient information, which will include those submitted by the contractor along with asking for further information if required. It is then up to the Engineer to analyse all the information in order to come to a decision.

If the contractor fails to provide the information within the requested time, the Engineer should make a decision based on the information he has available - if that decision is no EoT or a smaller one than the contractor thinks he should have then tough - because the contractor has not provided the information requested! The contractor can supply the info and ask the Engineer to review it or go to arbitration.

Basically, it’s up to the Engineer to gather and review info, then make a decision. It is not up to the contractor to prove his case but merely to provide sufficient record to support his case.

Now we all know this rarely happens in real life. In real life the contractor usually does and submits an analysis plus records, the Engineer asks for further information which isn’t forthcoming and then makes no decision based on the premise that he hasn’t got the additional information yet. That’s not how the contract usually works, but sadly it is how many think it works.

Reject the calim and ask the contractor to re-submit the same with all substantiation including impact as Planned and actual schedule, documents etc in hard and sfot copy.