Contractor not required to notify claim for EOT until delay has started

By Gerlando Butera

The FIDIC (Fédération Internationale Des Ingénieurs-Conseils) Conditions require the contractor to give notice of a claim for extension of time (EOT) not later than 28 days after the contractor became aware, or should have become aware, of the event or circumstances giving rise to the claim. The Technology and Construction Court (TCC) in London has recently adopted a relaxed interpretation of this requirement.

  • The TCC’s decision provides authority for a position that offers some respite to contractors from the onerous (and often criticised) provisions that debar a claim from being pursued if it is not notified within the stated period.
  • As decided by the TCC, the 28-day period for notifying a claim for EOT only begins following the onset of actual delay flowing from the event or circumstance that caused it.
  • By analogy, the TCC’s decision supports the argument that the case is similar where the contractor’s claim is not for EOT but for additional payment.
  • However, the decision also gives unquestioning support to the proposition that a contractor’s claim cannot be pursued if it has not been notified within the relevant period.

Construction projects almost invariably give rise to claims by one party or the other. The claims do not necessarily give rise to conflict and disputes, but that something unexpected will occur during the course of a project is to be expected as the norm. Most often, it is the contractor that has claims for additional payment or EOT, but the employer may also have claims in respect of delayed completion or defective work. However, the FIDIC Conditions are very one sided in the way that they treat claims by the contractor and claims by the employer respectively…

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