How to Administer the Contractor’s Programme

One of our blog followers asked for some advice on the administration of the Contractor’s programme. The questions raised relate to fairly frequently occurring situations, so this subject is definitely worthy of a blog post. I have reproduced the queries below and I will refer to the FIDIC forms of contract and terminology when providing my advice. Requested Advice: A summary of general principles which would avoid the Contractor submitting erroneous programme updates, for example, don’t be bullied by the Engineer into submitting a programme based on the original completion dates and which therefore absorbs the impacts of delay events (thus losing entitlement). So, let’s be clear what a programme update actually is. First, we must establish the Contractor’s programme, which is often referred to as the baseline programme. This programme should be the Contractor’s best estimate of the sequence and timing of how he intends to carry out the Works and should be based on the Contract at…

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Top 10 Tips for Effective Letter Writing

One of the things that I notice upon reviewing the records to prepare a claim, reviewing claims on behalf of the respondent, or reviewing the particulars put forward in a dispute, is the poor standard of letter writing. This ranges from “could have been better” right through to “I have no idea what this letter means”. If your letters fall into this category, you are not doing yourself or your company any favours and you could be doing considerable harm. This blog, therefore, contains my Top 10 Tips for effective letter writing. You are not writing the letter for your opposite number on the project. You are writing it as an accurate record to be relied upon in case a claim or dispute arises in the future. The letter must, therefore, be fully understood by someone who has no prior knowledge of the project or the matters in question. The letter should be a stand-alone document. In other words, a reader with no prior knowledge should be able to understand it without reference to any…

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Frustration Under English Law – Key issues in a global pandemic

The extraordinary circumstances that COVID-19 has forced us to adapt to are demonstrated by the fact that we are routinely looking at an area of law that has developed, primarily, as a result of world-changing events such as wartime shortages, the first Gulf War and the global financial crisis of 2008. How does Frustration operate? Frustration discharges both parties from all of their future obligations pursuant to the contract. It operates automatically. It requires no positive act by either party. It requires there to have been an “outside event or extraneous change of situation” which has arisen without blame of the person seeking to rely on it. The key is whether the situation makes the obligation pursuant to the contract impossible to perform, not simply more difficult, or even financially catastrophic for one of the parties. The circumstances that you must find yourself in have to be “radically different” from when the contract was concluded. The test has a high bar and…

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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

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

One of the modules on the Construction Claims Premium E-Course delivered by ICCP training partners, Claims Class, asks students to review various case studies to identify potential claims. Having identified the claims, students are asked 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, a student asked me - his tutor - some questions which I think are worth sharing with the broader community. QUESTION 1: 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 a necessary drawing or instruction is not issued … within a particular time’. The sub-clause allows the…

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