The claims process under FIDIC 2017: from a contractor's perspective

DIGEST | ISSUE 20
the long grass” too often, and claims were not considered
by the Engineer, either impartially or expediently. A
commonplace complaint in my experience.
Below, I have considered the two forms, and their
differences, in respect of dealing with Contractor’s
claims.
The 1999 Conditions
Within the 1999 Conditions, the procedure for claims
and disputes is set out within Sub-Clause 20 (“Claim,
Disputes and Arbitration”). In simple terms, this
provides that:
1. Wherever the Contractor considers himself entitled
to any extension of the Time for Completion and/or any
additional payment, they are obliged to give notice to
the Engineer describing the event and circumstances.
2. The requirement to give notice is further specified
to be delivered within 28 days of the date upon which
the Contractor became aware, or should have become
aware, of the event and that this is a condition precedent
to the Contractor securing their entitlement(s).
The claims process
under FIDIC 2017
From a
contractor’s
perspective
I was recently asked by a client to offer my
views as to whether they should propose
adopting FIDIC 2017 Contract Conditions in
respect of a large civil engineering project in
the Middle East. The client in question is a
contractor and very well versed in the 1999
Conditions. A prospective employer had
invited them to propose “standard” terms
of conditions and, due to the familiarity they
had with the 1999 conditions, they initially
felt compelled to propose these.
Phil Duggan, Head of Expert Services, Driver Trett,
Middle East
26
In answering, I asked the question as to what, in their
experience, was “the worst part” of using the 1999
Conditions so we could consider if the 2017 version
would provide something better. It was revealed that
their biggest frustration was within the claims process.
They felt that they (as the Contractor) were “kicked into
3. The Contractor is obliged to submit a fully detailed
claim with supporting particulars within 42 days of
the date upon which the Contractor became aware, or
should have become aware, of the event (which will be
interim if the effects of the event are ongoing).
4. The Engineer is obliged to provide a response within
42 days of receiving a claim from the Contractor with
approval, or with disapproval and detailed comments.
He may also request any necessary further particulars.
5. If the first claim is interim (i.e. the effects of the event
are ongoing beyond 42 days), the contractor is obliged
to send further interim claims at monthly intervals
giving the accumulated delay and/or amount claimed.
6. The Contractor is entitled to have any such amounts
for any claim that has been reasonably substantiated
included within any Payment Certificate.
7. The Engineer is obliged to proceed in accordance with
Sub-clause 3.5 [Determinations] to agree or determine
the extension of the Time for Completion and/or any
additional payment which the Contractor is entitled to.
Under the 1999 Conditions, determinations are
described within Sub-clause 3.5. Therein, there is an
obligation that whenever the Conditions require the
Engineer to provide a determination (as in the case with
a Contractor’s claim in accordance with Sub-clause
20.1) the Engineer shall consult with each party in
an endeavour to reach agreement. If agreement is
not reached, the Engineer is required to make a fair
determination.
Any agreement or determination must be complied
with unless and/or until it is revised by reference to the
dispute resolution procedures under the Contract (i.e.
by reference to a decision of the Dispute Adjudication
Board and/or further by either amicable settlement of
arbitration).
The 2017 Conditions
Within the 2017 Conditions, “Claim” is a Defined Term
and means “a request or assertion by one Party to the
other Party for an entitlement or relief under any Clause
of these Conditions or otherwise in connection with,
or arising out of, the Contract or the execution of the
Works.”
Further, the 2017 Conditions separates the provisions
for Claims and Disputes, with Claims (both Employer’s
and Contractor’s) dealt with under Clause 20. For the
purposes of this article, I will only address the provisions
in so far as they apply to a Contractor’s Claim.
Sub-clause 20.1 identifies that a claim may arise:
(a) …
(b) If the Contractor considers that he/she is entitled
to any additional payment from the Employer and/or to
EOT; or
(c) If either Party considers that he/she is entitled to
another entitlement or relief against the other Party…
Sub-clause 20.2 sets out the key procedural
requirements and in particular that:
i. The claiming Party shall give a Notice to the Engineer,
describing the event or circumstance giving rise to the
Claim as soon as practicable and no later than 28 days
after they became aware or should have become aware
of the event or circumstance.
ii. The requirement to give Notice is further specified
to be a condition precedent to a Party securing their
entitlement(s).
iii. If the Engineer considers that the claiming Party
failed to give the requisite and timely Notice, the
Engineer is obliged to notify the claiming Party
accordingly within 14 days of the receipt of the Notice,
setting out reasons. If the Engineer does not give such
notification within 14 days, the Notice of Claim shall
be deemed valid (although, the other Party can give
notification of disagreement of such deemed valid
Notice and the claiming Party can challenge a rejection
27

Paperturn flip book viewer