How To Deal With Delays By Nominated Subcontractors

Many years ago when I used to deal with the JCT forms of contract, if a nominated subcontractor delayed the works, the contractor could use this as a legitimate reason to claim an extension of time. Either things have either changed since then, or not all forms of contract take this view. Under the FIDIC Red Book form of contract, the Engineer may nominate a subcontractor, but once the Contractor has accepted the nomination, he becomes responsible for the actions of the subcontractor and may not claim for any failures of the subcontractor. In a situation where the Engineer nominates a subcontractor who has submitted a competitive price but is incapable of providing adequate performance (does this sound familiar at all?) it seems inequitable to make the Contractor responsible when he has had nothing to do with the selection of the subcontractor. Does the Contractor have any recourse in such a scenario? Well, sort of, as we will see. Sub-Clause 5.2 (Objection to Nomination) states that…

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Extension of Time Claims – Cause and Effect

If a claim is to succeed, it is vital that it contains a persuasive argument to demonstrate that the claimant is entitled to an award and the quantum of the award. In this paper, I am going to share with you some key elements that must be included to help a just extension of time claim to succeed and an award to be made in a timely manner. The elements discussed here are cause, effect and delay analysis: matters that are all essential to proving the case. Cause and Effect Often the best way to deal with the event itself is to present the details through a chronology. The chronology should describe what happened, when it happened and provide substantiation of the events by way of reference to the project records. The project records should, of course, be included in an appendix for verification and reference. We should also split the chronology into sections that deal with cause and effect so that it is very clear that we have these essential elements covered. The chronology will…

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Planning Progress Records | Best Practice

Most contracts will identify the creation of the Baseline (As-Planned) programme and the regular reporting periods. FIDIC contracts refers to the Baseline under Clause 14 or 8.3.  An essential project tool is a programme which allows the project team to understand where they are, where they are going and how to get there. However, the project tool is only as good as the effort used to create it, and the effort used to update it.  In recent years, my company has witnessed a deterioration in the planning skills on many projects resulting in errors in project updates, with project values ranging between USD 100 million to USD 1 billion. We noted that the common errors that occur between progress updates refer to progress percentages decreasing between updates, actual dates changing from ‘it started to hasn’t started’ to a ‘revelation that it started six months ago and we forget to record the actual start or record any progress in the six months.' Other changes are in durations, both…

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Construction Delays – Do Arbitrators and Courts have a Preference for a Certain Delay Analysis Methodology?

Disruption and delay seems to be of major importance in today’s construction world. Market pressure requires contractors not only to accept projects with insufficient profit margin but often requires them to price incomplete tenders with a lump sum price and complete the projects in the shortest possible period. For several different reasons this often leads to delays and disruptions caused by either party. If such disruptions or delays occur, the methodology of analysing it is of major importance. ICCP Fellow, Thomas Pfeller, Head of Contracts, Claims, and Change Management at SIEMENS Oil and Gas Singapore, has authored a full paper on this subject. To request a copy, please email your details to hello@instituteccp.com with "Arbitrators & Courts" in the subject line. Enjoying the ICCP's articles? Why not sign up to our mailing list and receive new articles straight into your mailbox. Or, want access to a library of member's only content on contracts and claims, check out our…

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Legal Q&A: Delay Developments

This short article explores what’s new in the Society of Construction Law Delay and Disruption Protocol. This article was originally published in Civil Engineering Surveyor magazine and has been included here with permission from the editor. Click here to read. Enjoying the ICCP's articles? Why not sign up to our mailing list and receive new articles straight into your mailbox. Or, want access to a library of member's only content on contracts and claims, check out our Membership page and join the ICCP community today.

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