Notices under FIDIC Silver Book 2017 Edition Part 1

This is the first post in a series on Notices under FIDIC Silver Book 2017 Edition. As you may know, the emphasis on notices, generally with some timelines and deemed consequences thereafter, has been enhanced in the 2017 edition.

To begin with a definition, a notice is a communication from one party to another – warning of a probable, possible or expected event or circumstance that may adversely affect a project. One of the most notable trends in successive editions of the FIDIC books is the increasingly onerous and prescriptive nature of the notice requirements with deemed consequences for failure to carry out obligations.

Obligations to Submit Notices

An obligation to submit notices arises to make aware an Employer and Engineer:

that an action is required from them that could affect the project
that an event that could affect the project has happened
that the Contractor is suffering from delays or increasing cost, or
that the Contractor considers that he or she is entitled to make a claim.

Timely issuance of notices allows the Employer and/or the Engineer to mitigate the circumstances, or, if mitigation is not possible, to make provisions for additional time and/or cost. In the Silver Book, a notice is defined in Sub-Clause 1.1.48 as a written communication and identified as a notice and issued in accordance with Sub-Clause 1.3 (Notices and Other Communications).

This provision means that meeting minutes or progress reports cannot constitute a notice unless they are identified as such. Other than the fact that notices shall be written communications and identified as notices, FIDIC does not offer any advice as to the format or content of a notice.

Many of the clauses that require notices stipulate timeframes that must be complied with. Thus, FIDIC uses various phrases such as:

‘promptly’
‘as soon as practicable’
‘not less than [a stipulated number of] days’, or
‘not later than [a stipulated number of] days after the party becomes aware or should have become aware of the event or circumstances’.

Categories of Notices

Notice that an action required by the Contract needs to be taken. For example, the Contractor requiring a drawing or instruction from the Engineer.
Notice that an action required or permitted under the contract has been or will be taken. For example, to correct defective work.
Notice that an event has occurred that could cause, or is causing, delay and/or incurrence of additional cost.
Notice that the Contractor considers that he or she is entitled to an Extension of Time.
Notice that either party considers that the party is entitled to additional payment from the other party.
Notice of an error or default by one of the parties.
Notice of Agreement or Determination.
Notice of disagreement or dissatisfaction with a determination or decision.

Notices are further discussed in detail in Sub-Clause 1.3 (Notices and Other Communications).

Submission of Notice

Notices shall be:
- in writing and shall be a paper original signed by the Contractor’s or the Employer’s representative, or
- an electronic original transmitted by the electronic address uniquely assigned to each of such authorized representative and
identified as a notice and
delivered:
- by hand or sent by mail or courier (against receipt) or
- transmitted using any of the system of electronic transmission and delivered, sent or transmitted to the address for the recipient’s communication as stated in the contract data.

This series is now complete and is available as a PDF by emailing the subject line Silver Book Notices to hello@instituteccp.com. Each post can be read on the blog at these links:

This guest post was written by Mansoor Ali, FICCP and Jishma Joy. It is the first post in a multi-part series and was originally published as a LinkedIn video, viewable here.

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