Records, Records, Records...A Lesson Learned!

I have recently been involved in two adjudications, brought about by the same construction company, against two clients on two similar housing projects. The company (who I shall call Bloggs Builders) were in serious delay, and their works were being disrupted by circumstances outside their control.

I was initially brought in to produce a prolongation and loss and/or expense claim, with the game-plan of facilitating the negotiation of a fair settlement with both clients, thus avoiding litigation. However, there was no settlement, the dispute crystallised, and adjudication proceedings were commenced.

When I first got involved, I asked for Read more

Leading Edge in Construction Technology, but not Contracts

I recently read a contractual article in one of the major Middle East construction industry magazines. It took me a while to realise what the author was talking about, but it eventually dawned on me that he was using references from the FIDIC 1987 construction contract. The 1987 contract is over 30 years old and was superseded 20 years ago by the FIDIC rainbow suite. Whilst I have to criticise the author for not bringing his subject up to date, it is not an unusual occurrence for construction contracts to be entered into based on the 1987 contract and in fact, over the past couple of years I have been involved with several projects on which this form is still being used.

Given the leading edge of construction design and technology used in the Middle East and particularly the Gulf countries over the past couple of decades, I would suggest that if anyone suggested to an Employer that they should revert to 1980’s construction design and technology they would be laughed at. Why then, do Employers not adopt such an attitude when selecting an appropriate form of contract?

The FIDIC contracts were revised in 1999 to introduce improvements and to keep in line with modern procurement methods and it was also made more equitable by a more balanced sharing of risks between the parties. So why not use the latest version? I have my own theories on this matter.

Firstly, people generally don’t like change, so they are more comfortable remaining with something that they are familiar rather than learning something new. But come on – it’s been 20 years since the rainbow suite was published. Surely that is enough time to become familiar with the latest versions and train staff on its use? Engineers and Project Managers should be advising Employers on such matters.

Secondly, consultants and Employers possibly don’t like the idea of equitable contracts. This is evident due to the propensity to delete the dispute adjudication board requirements from the 1999 FIDIC contracts when they are used and change the balance of risk significantly from the standard FIDIC contracts. In my opinion, the unfair treatment of contractors by Employers and consultants is one of the main reasons why the Middle East has been a hot bed for arbitration for several years.

The FIDIC 1999 suite of contracts were revised again in 2017. It is a disturbing thought for me to consider that, based on past performance, by the time that the latest versions have been adopted in the Middle East, I may no longer be around to see them in use!

Referencing of Clauses in Correspondence and Claims

I was recently asked for advice on how to correctly refer or refer to contract clauses when preparing a claim. Although this is a fairly minor point, it is something that is often done badly and if so, can make the reader’s understanding more difficult.

If you wish to refer to a sub-clause in a narrative or correspondence, I prefer to see it in the following format:

  • For major clauses: Clause 13 (Variations and Adjustments)
  • For sub-clauses: Sub-Clause 13.3 (Variation Procedure)’

A common failing when writing letters or claims is to just refer to the sub-clause number without the title. This makes it difficult for a reviewer who is not familiar with the contract to understand without constantly having to refer to the contract itself. Remember that a key point to claim or response writing is to make the reviewer’s job as easy and pleasant as possible and to help him or her understand the points being made.

Attention to detail when writing claims and responses is important, because it demonstrates the professionalism of the person and company who prepared the document. This in turn helps to persuade a reviewer that the document contains a good case.

This blog was authored by ICCP Executive Officer and FICCP, Andy Hewitt

The Institute of Construction Claims Practitioners has a paper on this subject. To request a copy, please send an email with your contact details to with “Presentation of Claim Narratives” in the subject line.

Create Your Own Knowledge Centre

I have recently been sorting through reference material that I have collected over the years, to provide the Institute of Construction Claim Practitioners with suitable articles, papers and the like for inclusion in their knowledge centre. Whilst doing this, it struck me that the amount of information I have gathered is not only huge, but it has become an extremely useful tool for my work.

I started doing this in a small way by scanning articles in professional magazines that I found interesting, or that contained useful information and filing them in an ‘information’ folder on my computer. I also filed course notes from seminars and conferences in the same place, as well as various information and articles that I had dug up in the Internet whilst researching a particular subject. Realising that over time our memories become dim, I also filed away work that I had produced myself and which could potentially become useful in the future so that it was readily accessible.

The file eventually became so full of such information that I had to set up some sort of document control system if I was ever to be able to find anything when I needed it. I did this by way of a simple index created on a Word document table. The table contains columns for author, article title, brief description of the information and a hyper-link to the article. This now allows me to open the Word index, enter a key word search and, providing that the key words are included in the index, Word will take me to whatever articles are relevant to the search. These days I hardly ever have to search anywhere other than my own ‘knowledge centre’ to find what I need.

If you are involved on contractual issues and/or claims, I would highly recommend that you start a similar system. The small amount of effort to save and file such information as and when you come across it will repay itself many times in the years to come.

To request a sample of a Knowledge Base Index please send an email with your contact details to with “ Knowledge Base Index ” in the subject line.

FIDIC Red Book: Delayed Drawings and Instructions and Engineer’s Delay, Impediment and Prevention

One of the modules on the Claims Class distance-learning course requires the students to review various case studies to identify potential claims. Having identified the claims, the student is required to explain the reasons for the claim, what may be claimed, the contractual clauses under the FIDIC Red Book that provide entitlement and explain how the claim would be evaluated. Having completed the module, one student posed certain questions, which I think are worth repeating here.

QUESTION. Could Sub-Clause 1.9 be used against RFIs (requests for information), shop drawings, material submittals, or any sort of instruction / information?

Sub-Clause 1.9 (Delayed Drawings or Instructions) provides that ‘The Contractor shall give notice to the Engineer whenever the Works are likely to be delayed or disrupted if an necessary drawing or instruction is not issued … within a particular time’. The sub-clause allows the Contractor to claim ‘If the Contractor suffers delay and/or incurs cost as a result of a failure of the Engineer to issue the notified drawing or instruction within a time that is reasonable and is specified on the notice ‘

Requests for information must fall under this definition, but I would advocate that good contract administration requires that the Contractor ensures that the request firstly contains a date by which the information is required and secondly, stipulates that the request is submitted as a Sub-Clause 1.9 notice. If standard forms are used, this information may be easily incorporated.

Submittals which require approvals from the Engineer and where the Contractor may not proceed without such approval also fall under this category. Again, I would suggest that the document that encloses the submittal should include a date and a reference to sub-clause 1.9.

If the documents do not contain these references and a claim later relies on them, the Engineer may argue that the request or submittal did not comply with the notice requirements of Sub-Clause 1.9 and reject the claim. It would be possible to counter this argument but, as is the case with anything to do with notices, it is always better to ensure that they are submitted in accordance with the Contract.

QUESTION. Would Sub-Clause 8.4(e) apply for the Engineer's action?

Sub-Clause 8.4 (Extension of Time of Completion), subsection (e) provides that the Contractor is entitled to an extension of time caused by ‘any delay, impediment or prevention caused by or attributable to the Employer, the Employer’s Personnel, or the Employer’s other contractors on the Site’.

This is a great catch-all clause that may be applied to many situations on the average project and may certainly be used if the Engineer delays the Contractor by not responding to requests for information or submittals in a timely manner, or even in a situation where the Engineer does not provide a meaningful response or unreasonably rejects submittals. It should be noted however, that Sub-Clause 8.4 only allows an award of time and does not provide for costs to be reimbursed.