Q&A: Delays, Mitigation, and Recovery

The following questions were answered by Steering Committee member, Lee Sporle during Construction Clinic 8, recorded on 19 May 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: If a delay is justified, at what time is it justified? Is it at the end of the original completion period or at the occurrence of the delay? Answer: By justified, I assume you mean it's actually approved, accepted, and is valid. So, at what time is it justified? Well, the delay occurs when it occurs. So that's the delay, period. If it's critical, then the effect of that will delay your project completion. If it's non-critical, it will be a delay just in that area. In that case, there won't be a delay to a project's completion. So, at what time is it justified? It's at the time the event occurs, but that could lead to a delay in your project completion. The question's a little bit vague, but the delay is when it occurs and you analyse when the delay occurred and any costs…

Read More


Q&A: Suspension vs. Delay

The following questions, related to contractual issues arising from COVID-19, were posed during our eighth Construction Clinic, held in May 2020. Andy Hewitt's responses have been summarized from the original. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: (part 1 of 2): The first question relates to the FIDIC Silver Book. Due to COVID-19, our project was suspended. Initially, the Employer informed us that they ceased all inspections. This later led to suspension, because without receiving any approvals subject to inspections, the Contractor is unable to continue with the project. Since we did not have a written instruction to suspend, we, the Contractor, issued a letter informing the Employer that the project had been suspended upon their instructions. So going on as per Sub-clause 8.9 (Suspension), which states that after receiving the Notice, the Employer shall proceed in accordance with Sub-clause 3.5 (Determinations) to agree or determine the matters.…

Read More


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…

Read More


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…

Read More


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…

Read More