FIDIC - Time barring

Thanks,



I found some other posts later to do with the departure of Charlie but not his last post - I shall have a read.

Hi Andrew,



FYI, Charles already left PP. His last post was on March 28, 2009.



http://www.planningplanet.com/forum/forum_post.asp?fid=1&Cat=3&Top=57577



Best regards,

R. Catalan

Samer,



Yes, but the surprises the contract is trying to avoid at the end of the day are financial surprises.



As for the effectiveness of the time bars - that depends on the choice of law applicable to your contract although these days, most choices will result in the time bar being upheld.



Even the English courts, which up until a few years ago would have probably tried to find a way around time bars, are now leaning more strongly towards enforcing them.

Dear Andrew,



Allow me to add another main reason; to avoid surprises.



Usually, both parties would delay the claims until the end of the project in order to avoid tension during the project duration.



This is not allow per FIDIC now. If either party does not submit their notice within 28 days, the claim is lost.



With kind regards,



Samer

Charles,



Why Time Baring is included in FIDIC form of Contract - or any other come to that.



Several reasons but the main ones are:



1. So claims are promptly notified to allow proper investigation / record keeping of their effects at or near to the time that they happened, (good project management).



2. To give the Employer some degree of financial certainty in that at the end of the contract the contractor can’t suddenly out of the blue put in a massive and unexpected claim as in the old days.



3. And, at least in theory, to encourage contractors to promptly submit claims so they can be sorted as the project progresses, again allowing the Employer to know his financial commitments AND to improve the CONTRACTORS cash flow by earlier payment of money due to him, (good financial management). Hey, I did say in theory!!!!

Dear Khawaja,



The Contractor must notify the Engineer within the 28 days period then submit full detailed supporting documents (claim) within 42 days.



You just have to read the clause and apply it. Then you will be within FIDIC.



If the event is still ongoing after the 42 days period, then you can submit the information that you have and periodically keep updating the information until the event ends.



With kind regards,



Samer

woould like to add some more ...

If the contracor notify that ... impact of the delay is under assessment and will be submitted ASAP....

Does this comply with FIDIC 20/1?

2nd’ly if the contract agreement is FIDIC based what are the other escape routes to this clause ??

Hi Charlie,



In my opinion, A contract is necessary to protect both parties, the Contractor and the Client. The Engineer is representative of the Client.



Cheers,

Thanks CJO/Samer

R. Catalan,



Regarding to your query " ... whether the Engineer has the power to render time-barring ineffective."



The Engineer roles, duties, responsibilities, power are found in the contract between the contractor and the client. The Engineer usually has to advice the client on the best professional judgement relating to project management, technical issues, quality, cost, schedules, interpretation of contract, etc. The Engineer also must be fair.



But in reality, in this times of crisis, The Engineer is only a stooge of the client, The Engineer is only a slave of the client.



In conclusion, The Engineer can only advice the client on the issues regarding Time Barring. The Engineer do not have the power to render time barring ineffective.



To anticipate your next Question: Who the hell, in your project situation, make time barring ineffective.



Answer: The Client. Very easy to deduce. For the simple reason that Contractor do not have contract with The Engineer.



Next Question: If the client has the power to render time-barring ineffective, What recourse the contractor have in the contract?



Answer: ?????



Cheers,

Happy Planning and Scheduling

Dear R.,



I would recommend that you read the FIDIC clause and apply it exactly. If you are in a situation where an Engineer or a 3rd party need to make a determination about an issue, they will review the clause and make sure that every word is executed thoroghly.



With kind regards,



Samer

CJO

You didn’t answer my question whether the Engineer has the power to render time-barring ineffective.



Samer

Any inputs?



Thanks,

R. Catalan

This also bring to the question;



Why Time Baring is included in FIDIC form of Contract?



Is the primary and essential idea to have a contractual clause Time Barring really for rejection of claim or otherwise?



This is very important to know the fundamental of Time Barring clause in the contract to avoid misunderstanding or misinterpretation of the intent of the clause.



Cheers,

Happy Planning and Scheduling

R. Catalan,



Refer to your heypothetical case. We acknowledge FIDIC form of contract is used. Also we will add the assumption that the client is not a saint or the client is devilish specially in times of financial crises.



What prevent the client and the engineer to have conspiracy to the detriment of the contractor, say, in your hypothetical case: the client instructed the engineer to sweet talk the contractor not to isssu a notice to claim. In this hypothetical case, the contractor got good basis that claim is due to him to him however, the contractor did agree with the engineer not to give notice of claim.



What recourse will the contractor have in the event that the honeymoon between contractor, client, the engineer (client representative) is over. How can the contractor evade LD.



Answer: The contractor will file a claim, even though the event may have happen long time ago. The engineer rejection of claim due to time baring will have no legal basis.



Regards,

Happy Planning and Scheduling

Samer,



What would be the Contractor’s legal basis in asking for a dispute resolution if the Client has argued earlier that the Engineer cannot bind the Client without his/her consent.



Regardless what action the Client is heading, the point I want to raise is whether construction laws allows the Engineer (as Client Rep.) to cause time-barring ineffective.



Regards,

R. Catalan

Dear R.,



FIDIC is clear about the procedure. It is outlined in clause 20/1. If the Contractor does not submit the notification for a time extension within 28 days of the event then it is not looked into.



Of course, anything outside the scope of the Contract must be approved by the client. If the Client decision is not the same as the Engineer decision, the Contractor can ask for dispute resolution.



Best Regards,



Samer

Samer & CJO,



What happens if the Contractor is told by the Engineer that he can delay the submission of a claim, and he did, but later the Client objected to this and put a stand on what FIDIC says?



Unjust for the Client to rely upon a time-bar in such conditions. What do you think?



R. Catalan

Thanks Charlie. I will find time to search for the article.



Cheers..

Nestor,



I read a promulgation from a Judge in Hong Kong regarding time barring that form part of my humble opinion.



I hope you know how to search the net: just go to google, type "time barring Hong Kong".



Please let me know if you found the article.



Cheers,

Happy Planning and Scheduling

Issue 1



My reply. FIDIC is a template of international contract document. As international contract document, the law of the land will superseed whatever is in the international contract document. that is the fundamental in international contracting.



In conclusion, if the law of the land do not recognize time barring, then, there is not enforceability of time barring as stipulated in the FIDIC, the international contract document.



Issue 2



My reply: I have no issue with 2.



Cheers,

Happy Planning and Scheduling

Dear Charlie,



We have two issues here:



1. FIDIC

You are not entitled for the reasons that were stated. We have went to arbitration and lost because the Contractor did not abide by the specifics of the clause.



2. What the Engineer/ Client witnesses and you think that you are entitled for can be granted with the client approval. The Client can approve a varaiation order as they see appropriate.



With kind regards,



Samer

Hi Charles,



I like your argument. How about if it is clearly stipulated notify the Engineer in writing?



Cheers..

Hi Samer,



Sometimed it is easy to draw conclusion from simple question "yes or no"



But if read behind the line, if you read the subject of the post,



the questionare intentionally highlight "Time Barring".



From the facts presented, it is very clear that "Time Barring" was the hiding or underlying principle or dominant philosophy in claim and extension of time decision.



Hence, IMHO, Time Barring is not applicable.



Basically, Time barring should not be a cause in rejecting a claim for and the granting of extension of time.



The fundamental principle is that responsible person, the client, the client representative, the consultant, the contractor, etc., in project know what happened at the project site. They know the event happen that cause delay, so the time elements is gone, no time barring.



So, my humble opnion, the contractor is still can claim for and be granted an extension of time, in case there is merit to grant extension of time, even if he fails to notify within the period specified.



Cheers,

Happy Planning and Scheduling

Dear Charleston,



The original question was:



If the contractor fails to notify within the period is he still able to claim for and be granted an extension of time?



And the answer is:



No, if the Contractor fails to notify the Engineer, then the Contractor is not entitled for a time extension.



With kind regards,



Samer

In general, What happened at project site is known by everyone, the consultant, the client, the project management, the contractor, the sub-contractor.



For events that causes delays, there must be somehow note or notice that delays was due to this event.



so there is no time barring since the events that happen at site were known to everyone, to the consultant, to project manager, to client representative and the client.



Cheers,

Happy Planning and Scheduling

While FIDIC may say so,



You have to look at the uniqueness of the project including contract document and local laws.



In most cases there is no such thing as time barred.



A delaying event can always be reconsider irrespective of FIDIC clause 20.1.



Cheers,

Happy Planning and Scheduling

Samer is right about Clause 20.1. Depending on which version of FIDIC you’re using, some old versions have something like this, if a contractor failed to give notice within 28 days, contractor’s entitlement will be limited to the amount which the Engineer considered that could be verified by contemporary records.



I hope this helps.



Regards,

Dear Andrew,



Yes you are correct. Deepak has said it correctly as well.



It falls under FIDIC clause 20/1. If the Contractor fails to send the notice within 28 days, then the Contract duration will not be extended and the Contractor will not be entitled for any more payments.



Best Regards,



Samer

Dear Andrew ,



As far as i know you have to notify the consultant regarding the delay within 28 days of occurance of the event. Then within 28 days after completion of the event , the effect the final particulars of the delay.



You can notify to consultant regarding the delay after this period and also still be eligible for some EOT but the consultant will consider the effect from the date of your notification as the total delay and not from the date of occurance of the event.



Deepak.