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: Events Prior to Contract Finalisation

In this blog post, Steering Committee member, Mark Watson, answers a variety of questions related to FIDIC 1999 Red Book. These questions are excerpted from our tenth Construction Clinic session, which took place in June 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: When it comes to Notice provisions and Time barring, we set the following scenario: - FIDIC Red Book 1999 - Commencement date stated in Contract data as 11 May 2020 - No Letter of Acceptance - Contract signed 22 May 2020 - Event started 3 May 2020 In instances where events happened before Contract Finalisation as above, do you set the ‘became aware’ date as the Commencement date, Contract signing, or actual date when the event happened pre-Contract? Answer: The important dates are the Commencement Date [Sub-clause 8.1 (Commencement of Works)] and the Time for Completion date [Sub-clause 8.2 (Time for Completion)]. The reason for this is that an Extension of Time for Completion [SC 8.4…

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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: Interim Claims and Taking Over vs Performance Certificates

The following questions, related to contractual issues arising from COVID-19, were posed during our ninth 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: For a contract that has been terminated by the Employer and the amount due a termination is in dispute and goes to arbitration under the UNCITRAL rules. What is the interest rate to be applied if the FIDIC Yellow Book 1987 allows for the Bank of the Contractor’s residence plus 3%? Answer: It’s a difficult question because once things go to arbitration, the arbitrators would look at the issue; why the interest should be applicable; how it should be calculated. I am not a lawyer and the arbitrators will make decisions based on all of the facts. That being said, unless there are reasons why they shouldn't do so, I don't really see any problems if the contract says how interest shall be calculated and the…

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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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