Q&A: Performance Certificate vs Taking Over Certificate

In this blog post, Steering Committee member, Mark Watson, answers a variety of questions related to FIDIC 1987 and 1999 forms of contract. These questions are excerpted from our seventh Construction Clinic session, which took place in May 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: This question relates to the 1999 edition of the Red Book. The contract has a PCoC clause introducing milestones into the project. Whilst the contract decided on the requirements necessary to achieve milestone completion and issuance of the milestone certificate, is it correct to assume the requirements would be the same as required by Clause 10 (Taking-Over of the Works, Sections, or parts of the Works)? Answer: In the first instance, I'm assuming that PCoC is the acronym for Particular Conditions of Contract. Before I answer the question, I must qualify that I have not considered the construction of the PCoC nor have I had sight of this clause. Therefore, my response…

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Q&A: Prolongation, JCT, NEC, and Force Majeure

In this blog post, ICCP President, Paul Gibbons, answers questions related to issues arising from COVID-19. He compares claiming for COVID-related prolongation costs, profit, and extension of time under three standard forms of contract, discusses financing charges and DAB decisions, and looks at provisional sums. These questions were answered in our sixth Construction Clinic session, which took place in May 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: If COVID-19 is a force majeure event and the employer is a government department and there was a change in law that has restricted movement, broken down the supply chain, and restricted air travel of the Contractors' experts, will the Contractor be entitled to prolongation costs, profit, and extension of time? And if so, what kind of documents can support such a claim in case the Contractor has COVID-19 delays? And indeed, in that regard, what can his defence be for liquidated damages? Answer: I'm not…

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Q&A: COVID-19, Programme, Float, and Delays

In this blog post, Steering Committee member, Lee Sporle, answers questions related to delays arising from COVID-19 and clears up float confusion. These questions were answered in our sixth Construction Clinic session, which took place in May, 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: I'm acting as the Engineer under a FIDIC Yellow contract. It has two stages clearly identified. According to the contractual programme, they should have finished and handed over the first stage before COVID-19 impacted our area, but they didn't. No reasons and/or previous claims. Now under the new scenario, they are working at one-third of the pace and they've started to submit Notices pleading, among others, force majeure. Beyond the specific FIDIC clauses that the contract may or may not have regarding these issues, my question is whether the Contractor does or does not have the right to issue any claim when all the problems have arisen solely due to his own…

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Q&A: Extensions of Time and COVID-19

In this blog post, Steering Committee member, Mark Watson, answers questions related to EOT claims arising from COVID-19. These questions are excerpted from our fifth Construction Clinic session, which took place in May 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: In the FIDIC Yellow Book, 1999 Edition, Sub-Clause 17.3 (Employer’s Risks), foresees one of the Employers' risks as any operation of forces of nature. This might be associated with the current pandemic, COVID-19. That is a force of nature. But in the FIDIC Yellow Book, the 2017 Edition, the clause for Employer's risks does not exist. So my question is, does FIDIC 2017 override all contracts made before 2017? Answer: The 2017 Edition of the FIDIC forms of contract, does not override any of the previous editions of the FIDIC standard form contracts. And the reason is that each edition of the FIDIC contract is, by itself, a separate and independent contract. So it will not override any…

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Q&A: Force Majeure, Suspension of Works, Civil Law and FIDIC

In this blog post, Steering Committee member, Andy Hewitt, answers questions related to claims submissions during COVID-19. This blog has been extracted from our fifth Construction Clinic session, which took place in April of 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: Under the FIDIC contract, when the Engineer administers a contract in civil law jurisdictions, to make a determination for claims, what is the best way to deal with such rules of the common law as a time bar for Notices and prevention principles? Answer: For those unfamiliar with either civil law or FIDIC contracts, let me give you a bit of background. The FIDIC requirements have a lot of very stringent requirements for the Contractor to submit Notices and say very clearly and unequivocally that if the Contractor doesn’t submit the Notices within the timeframe, he is not entitled to anything. Now, if your contract was signed under a common law jurisdiction that is exactly what…

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