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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Q&A: COVID-19, EOT Claims, and Delay Analysis Methodologies

In this blog post, Steering Committee member, Lee Sporle, answers questions related to claims submissions during COVID-19. This blog has been extracted from our fourth Construction Clinic session, which took place in April of 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: Conducting the delay analysis, it was found that the programme updates contained out-of-sequence activities which resulted in incorrect dates. Should it be corrected and justified prior to the analysis, or can I simply reject the EOT submission? Answer: Firstly, what delay analysis method are you going to perform? If you’re performing a Window Analysis-based method, As-Planned As-Built, then it won’t matter because you aren’t looking at any forecasting or entitlement; you’re looking at actual delay. So, under an As-Planned As-Built Window Analysis, you’ll be reviewing in a window period of time: what was planned, what actually happened, and how much was the critical path affected in…

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Q&A: COVID-19, Contracts, and Key Words and Phrases

In this blog post, past Steering Committee member, Bill Bordill FRICS, FCIArb, FICCP, examines some key words and phrases and answers questions related to contractual issues arising from COVID-19. This blog has been extracted from our fourth Construction Clinic session, which took place in April of 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: Is regulation issued by government considered a change in law? Answer: Well, the simple answer to that is: it depends. It depends on the jurisdiction, the contract, the timing of the change in regulations, and the nature of the change. Without that specific information, I cannot answer the question. However, generally a change in regulation issued by government would represent a change in law so long as compliance was mandatory. Question 2 Question: Does the PM qualify for compensation as a result of COVID-19? Answer: Unfortunately, again, it depends. That’s a common answer to questions like this. In this…

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Q&A: Prolongation, FIDIC, and Force Majeure

In our third Construction Clinic session, which took place in April 2020, Mark Watson answered questions related to prolongation and FIDIC contractual issues arising from COVID-19. The following questions have been excerpted from that session. The entire webinar may be viewed on-demand on YouTube. Questions about prolongation under JCT and NEC contracts, are addressed in this post from the first part of Construction Clinic 3. Question 1 Question: If an Employer’s delay, excusable and compensable, is ongoing and determines the date of completion and, after the effects of COVID-19, there is an additional delay of completion, will the overlapping delay be compensated? Answer: This question is a hot topic in construction. In terms of the overlapping period, you need to look at the terms of the contract. You’ve got to consider there are two parts under Sub-clause 19.4: part A is Extension of Time and part B, additional payment. Part B is subject to certain requirements under Sub-clause…

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