In 2019, the ICCP’s training partner, Claims Class, presented a series of monthly webinars on claims for the CIOB, based on the Construction Claims e-courses.* There were a good number of attendees. At the end of each webinar, participants were invited to ask questions. If time ran short during the webinar, attendees each received a collection of written responses to any questions which could not be covered in the allotted time. Hopefully, this will provide some useful insight to readers of our blogs. The following are questions and answers from the webinar on Types of Claim.

This is a follow-up to the previous post, Contract Administration for Claims.

Question 1

Question: Under the FIDIC suite of contracts (1999 edition) could you please advise what options the contractor has in case of force majeure conditions (i.e. Arab Spring in North Africa) if they continue to incur charges for the project. For instance, should the contractor continue to pay for renewing his Advance Payment guarantee and performance bond that are obtained from a Local Bank?

Please consider that the Contractor cannot perform his duties under contract in concern due to the status quo in the country. Based on this, you are kindly requested to comment on the following:

  • Does this situation provide enough grounds to submit a claim?
  • If yes, could this case be considered as Owner’s risk?
  • If the Contractor is in a position to submit a claim, what would be your recommendation to the Contractor to put into the body of the claim as a supporting document?

Answer: If the Contractor is prevented from performing his duties because of events such as those associated with the Arab Spring, then this would qualify as a force majeure event under the provisions of Sub-Clause 19.1 (Definition of Force Majeure). Sub-Clause 19.4 (Consequences of Force Majeure) allows the Contractor to claim for Cost incurred. If the Contract has not been terminated, the Contractor is obliged to continue to provide the guarantees and bonds, so the costs of doing so may be claimed.

The situation would probably provide sufficient grounds to claim for an extension of time and the recovery of any Cost incurred.

FIDIC provides entitlement to the Contractor to claim, so yes, this would be an owner’s risk. As far as the compilation of a claim is concerned, it is difficult to advise you in sufficient detail in this forum, but we will be discussing this in forthcoming webinars.

Question 2

Question: If you experience concurrent delay are you entitled to prolongation costs?

Answer: The general principle is that if a concurrent delay occurs, the Contractor is entitled to time but not prolongation costs. This is based upon the principle that had the Contractor not caused delay, the project would have been delayed anyway because of the Employer risk events, so delay damages may not be applied. The Contractor, however, may not benefit from his own mistakes so may, therefore, not recoup costs when he has also contributed to the delay.

Question 3

Question: Can we refer to UK common law in the GCC, especially in the case of concurrency?

Answer: The Contract should state the applicable law to which it is subject. The GCC countries are based on civil law, so UK law would generally not be applicable.

Having said that, case law may sometimes be applied across legal jurisdictions, especially when it deals with technical, rather than legal, principles. A good source of reference which may be used to justify claims and technical matters contained therein is the Society of Construction Law’s Delay and Disruption Protocol, which deals with concurrent delay.

Question 4

Question: What is a global claim?

Answer: A global claim usually occurs when the contractor has not performed his obligations to submit claims for each delay event and panics at the end of the project when he realises that he will not complete on time and will soon have delay penalties imposed. Basically, in this situation, the Contractor cites all delay events that have occurred and attempts to claim an extension of time for the completion date that he achieved. In other words, the Contractor is saying that ‘all these delays occurred so we are entitled to an extension of time to when we finished the project’.

This is not a good strategy for several reasons. First, contracts usually require claims to be submitted within a strict time frame. Second, in order to prove an extension of time is warranted, it is necessary to link the cause with the effect. In other words, it must be demonstrated that each particular delay event had a direct effect on the Time for Completion. This is the reason that arbitrators and the courts will seldom favour the Contractor if his submits a global claim.

Question 5

Note: this is a comment rather than a question. It has been included here for the presenter’s response/comment.

Comment: Changes in Legislation is an Adjustment pursuant to Sub-Clause 13.6 of the FIDIC conditions, i.e. it is a Variation/Adjustment but not a Claim as presented in this webinar. As a thorough contract professional, I can confirm that there is a lot of difference between the terms “Variation/Adjustment” and “Claim”. Please let me add, we do not have claims for variations. “Variation” is Clause 13 of the FIDIC conditions, whereas “Claim” is Clause 20. Both are completely different.

Answer: As mentioned in the webinar, ‘A claim is an assertion of a party’s right under the terms of a contract or at law’. If a Variation or other adjustment to the Contract Price are paid for without having to assert such a right, then that is fine and is actually how it should be under FIDIC, but if the Engineer does not do so, then it will be necessary to ‘ask’ for payment. It may be just semantics, but in my view, ‘asking’ for something is the same as making a claim for something.

Question 6

Question: Can the Contractor claim for opportunity cost? By this, I mean that the Contractor could miss taking another potential project using his resources had he not been delayed by the employer of the current project owing to his resources being blocked for more than he had foreseen. Does the Contractor have to prove this? Thanks.

Answer: Generally, yes and this would typically be calculated as part of a prolongation cost claim by using one of the recognised formulas for calculating head office overheads and profit such as Emden, Eichleay, or Hudson’s.

Question 7

Question: Thank you Andy for your wonderful presentation. Where can we buy your book in Qatar?

Answer: I am glad you enjoyed it. My book can be bought online via Wiley-Blackwell and Amazon (UK) and delivered to Qatar. Direct links can also be found on our Member Area Bookshop page.

Question 8

Question: Regarding Notice, can a delay event which was not formally notified but later turns out to be a critical delay event be considered for EoT claim. The Engineer was made aware of the delay in progress meetings along with many other various delay events in a construction project.

Answer: According to Sub-Clause 20.1 (Contractor’s Claims) of FIDIC, if a delay event leading to a claim is not notified within 28 days for the event then ‘the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer shall be discharged from all liability in connection with the claim.’ This is very clear and Contractors should ignore it at their peril.

Giving and recording advice to the Engineer in meetings does not satisfy FIDIC’s requirements for the submission of notices as set out in Sub-Clause 1.3 (Communications) so this cannot be regarded as a notice.

Depending on the circumstances, there may be situations under civil law jurisdictions whereby an argument may be put forward to defend against a time bar such as this, but my recommendation to contractors is always to submit formal notices that are required by the Contract and submit them in the way prescribed in the Contract. This will avoid you having to employ specialists to help get you out of the hole that you have dug yourselves into by disregarding your obligations.

Question 9

Question: Our Contractor is claiming for road tax increases on material suppliers affecting concrete supply costs. Our view is, this is a rate increase which is a Contractor’s risk but the Contractor claims a change in legislation is an Employer risk. What’s your view?

Answer: If the causation is the increase in road tax, then this would fall under change in legislation, so in my opinion, this would be a claimable cost. However, from the point of view of the Engineer, I would only be prepared to pay for cost incurred as a direct result of the road tax increase on the basis of:
Annual increase in tax/ number of working days per truck per year/ number of deliveries per day per truck x each delivery to the project.

On this basis, I would doubt that the amount claimable would amount to very much and am somewhat surprised that the Contractor would make such a claim unless he is attempting to incorrectly pass on supplier increases under the guise of the increased tax.

Question 10

Question: How do we deal with client-nominated Contractor’s delay? And what is the procedure for claiming delays due to client-nominated Contractors?

Answer: It would depend on the contract and how it allocates delays caused by nominated subcontractors. Sub-Clause 5.2 (Objection to Nomination) of the FIDIC Red Book allows the Contractor to object to a nomination at the time of nomination. FIDIC is somewhat grey about the situation where the Contractor has not objected and a nominated subcontractor delays the project, but I think a reasonable interpretation is to look at Sub-Clause 4.4 (Subcontractors), which states that: ‘The Contractor shall be responsible for the acts or defaults of any Subcontractor, his agents or employees, as if they were the acts or defaults of the Contractor.’ This does not exclude nominated subcontractors, so would not allow the Contractor to claim against the Employer. The correct recourse would be to claim against the subcontractor for losses or costs incurred due to the subcontractor’s delay.

Question 11

Question: If a recovery schedule is submitted by the Contractor to recover the delay in the project for a particular data date and after the data date there was a delay in the schedule caused by the Employer, will the recovery or baseline be used for the time impact analysis?

Answer: Presumably the recovery programme would include all delays that have occurred and extensions of time that have been awarded and would have been agreed as a revised programme. In such a case, the Contractor’s original programme (or baseline) would no longer be relevant and the recovery programme would be the programme against which to measure the effect of any further Employer delays.

Question 12

Question: Conditions of the contract say the value of the Advance Payment Bond shall be reduced by the amount of the Advance Payment recovered under Sub-clause which regards issue of Interim Certificates. What is the timeline for the reduction of advance payment bond based on this condition of contract? Follow up question, the above-referred sub-clause regarding interim payment, does it mean that this reduction should happen every month? What is your opinion on this matter?

Answer: The value of the advance payment steadily reduces as the advance is repaid through the interim payments. The timeline for full recovery depends on the conditions of contract– maybe it is calculated based on a specific time, or possibly as a percentage of the value of work executed over a period of time.

It would be worth checking the terms of payment with the bond provider to see if premiums may be reduced as the amount of the advance reduces, but whilst I am not an expert on this subject, it is probable that the premiums will have been calculated based on the reduction of liability as the project progresses.

Question 13

Question: What are the limitations of the term defined as ‘experienced contractor’?

Answer: This is almost impossible to define and will therefore always be the subject of debate, particularly when time or money is involved.

Question 14

Question: Please elaborate on prolongation claims.

Answer: Claims for prolongation costs are where the contractor claims for time-related costs incurred as a result of an extension of time and will include for such things as site management and administration, non-productive personnel, site establishment, non-productive plant and equipment, transport, insurances, bonds and head office overheads.

*The 2020 series of webinar modules is currently underway. CIOB – Understanding Claims Under the FIDIC Contracts, Module 4 is scheduled for 12-13:30 on 14 December.

This blog was written by ICCP Executive Officer and Fellow, Andy Hewitt

If you would like to learn more about claims, check out our training partner, Claims Class.

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