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Delay & Cost claim not in accordance to COC

5 replies [Last post]
Thu, 2008-06-05 02:28
Sudharma C.
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Working on a claim where the project uses the fidic coc for construction for building and engineering works designed by the employer.

Anyway the contractor submitted an eot and cost claim not in accordance to clause 20.1 of the coc [ie notice of delay should be given as soon as practicable, and not later than 28 days after the contractor becomes aware, etc].

In this case the contractor seems to have informed offically of the delay to the client 7 months after the event.

As a result of this the client has rejected the claim.

Is there case where the contractor was entitled to a claim even if they did not follow the delay notice clause of the coc ??

Or can earlier correspondences informing of possible delay due to slow down in work be construed also as a ’delay notice’??

rgds
sudharma

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Replies

Fri, 2008-06-06 12:42
#1
Andrew Flowerdew
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8.3 Programme:

….. The Contractor shall also submit a revised programme whenever the previous programme is inconsistent with actual progress or with the Contractor’s obligations….

The Contractor shall promptly give notice to the Engineer of specific probable future events or circumstances which may adversely affect the work, increase the Contract Price or delay the execution of the Works. ……

20.1 Contractors claims:

…… The notice shall be given as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance.

If the Contractor fails to give notice of a claim within such a period of 28 days, the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim. …..

The requirements of this Sub-Clause are in addition to those of any other Sub-Clause which may apply to a claim. If the Contractor fails to comply with this or another Sub-Clause in relation to any claim, any extension of time and/or additional payment shall take account of the extent (if any) to which the failure has prevented or prejudiced proper investigation of the claim, unless the claim is excluded under the second paragraph of this Sub-Clause. [the one above]

Appears to be an enforceable time bar clause:

Contractor has an obligation to notify Engineer of delays from the time he becomes aware, or more importantly – the time he should have become aware of the delay.

Looking at the obligations the Contractor has with regard to programming, ie revising the programme as and when required to keep it in line with his obligations, then he should have become aware somewhere around the time that the delay was occurring, not seven months later unless there’s some very peculiar circumstances at play.

Possibly earlier correspondence could serve as a notice but no way of knowing without seeing it and knowing a lot more detail.
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Thu, 2008-06-05 11:27
#2
Mike Testro
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Hi Sudharma

It all depends on whether the notice period is a "condition precedent" under the contract for an EOT award.

If the contract says the notice must be given within a certain period of the event - say 28 days - or "such reasonable time thereafter" then the notice is not a "condition precedent".

Most contracts also require the engineer / architect to assess any EOT even if the contractor has submitted nothing at all.

Be very wary about rejecting a claim solely on the grounds of lack of notice from the contractor.

The engineer must act fairly to both parties.

Best regards

Mike Testro
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Thu, 2008-06-05 07:15
#3
Charleston-Joseph...
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you can always do a research here in PP.

the time barred subject was previously discussed as a thread, i think so since it was long time ago

but anyway, it should be here in PP forum

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Thu, 2008-06-05 07:14
#4
Charleston-Joseph...
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Are you referrring to time barred eot claims?


Please check your local lawyers if time barred is still applicable.

I did encountered cases wherein time barred are not applicable.

Cheers
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Thu, 2008-06-05 06:09
#5
A D
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Client is absolutely right in this case. As per FIDIC Clause, EOT shall be awarded for events wherein delay has been reported within 7 days.

Say, on 07th June Contractor notifies client of delay event, then EOT shall be applicable from 01st June 08.

In case of event having an continuing effect, contractor has to submit particulars at intervals of not more than 28 days and final particulars within 21 days of the end of effect.

If contractor has not filed any delay event, then client is absolutely right in this case.

Cheers,

Rav
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