Q&A: Delays, Variations, and Revised Programmes

The following questions were answered by Steering Committee member, Lee Sporle during Construction Clinic 11, recorded on 9 June 2020. The responses have been summarized from the original. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: We have a project timeline from January 2020 to July 2020. By March 2020, the project was running behind schedule by 60 days and we had an extension for 30 days. Our revised programme was submitted with a cut-off date in March 2020 and the new completion date set to August 2020 instead of July 2020, and the Contractor recovered his 30 days delay. We have another claim event started just after the data date of March 2020. Which version of programme update do we use to analyse the delay using the TIA method: the revised programme, which the Contractor has delayed due to the recovery made, or the normal update on the baseline programme, the revised programme, which shows the real Contractor delay at this time? Answer: OK. So,…

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Q&A: Delays, Disruption, and Arbitration

The following questions were answered by Steering Committee member, Lee Sporle during Construction Clinic 9, recorded on 19 May 2020. The responses have been summarized from the original. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: I was recently invited to bid for an expert appointment along with a delay analyst. The expert report will eventually be used in arbitration at a later date. The background is as follows: The Engineer approved the baseline programme, but it wasn't linked, nor did it show a critical path. The Engineer had approved an extension of time based on an impacted as-planned delay analysis. During private discussions, the expert delay analyst stated that we should protect the Engineer and not alienate him and that we should look to be reasonable and find a solution to support the EoT and support what we believe to be a reasonable EoT for the Contractor. With an expert hat on what is the panel's thoughts about this scenario,…

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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: 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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How to Ensure You Avoid Costly and Time-Consuming Disputes on your Projects

In this post, I'll look at ARCADIS' annual Global Construction Disputes Report 2019, as it makes interesting, but, not altogether surprising reading. For the time period covered in the report, the top three reasons for disputes are: 1. ‘Owner/Contractor/Subcontractor failing to understand and/or comply with its contractual obligations; 2. Errors and/or omissions in the contract document; 3. Failure to properly administer the contract.’ Some other interesting noteworthy observations are: 1. ‘Human factors and misunderstanding of contractual obligations continue to be a primary cause of disputes’; 2. ‘With more project participants, it is essential for those involved to understand the contract, their role in the project and how to work with the team’; 3. ARCADIS suggest that ‘at least three building blocks are needed for successful dispute avoidance and resolution: (1) contractual mechanisms whereby risks are identified early and parties are obliged to consider how to address them; (2)…

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