FIDIC Red Book: Delayed Drawings and Instructions and Engineer’s Delay, Impediment and Prevention

One of the modules on the Claims Class distance-learning course requires the students to review various case studies to identify potential claims. Having identified the claims, the student is required to explain the reasons for the claim, what may be claimed, the contractual clauses under the FIDIC Red Book that provide entitlement and explain how the claim would be evaluated. Having completed the module, one student posed certain questions, which I think are worth repeating here.

QUESTION. Could Sub-Clause 1.9 be used against RFIs (requests for information), shop drawings, material submittals, or any sort of instruction / information?

Sub-Clause 1.9 (Delayed Drawings or Instructions) provides that ‘The Contractor shall give notice to the Engineer whenever the Works are likely to be delayed or disrupted if an necessary drawing or instruction is not issued … within a particular time’. The sub-clause allows the Contractor to claim ‘If the Contractor suffers delay and/or incurs cost as a result of a failure of the Engineer to issue the notified drawing or instruction within a time that is reasonable and is specified on the notice ‘

Requests for information must fall under this definition, but I would advocate that good contract administration requires that the Contractor ensures that the request firstly contains a date by which the information is required and secondly, stipulates that the request is submitted as a Sub-Clause 1.9 notice. If standard forms are used, this information may be easily incorporated.

Submittals which require approvals from the Engineer and where the Contractor may not proceed without such approval also fall under this category. Again, I would suggest that the document that encloses the submittal should include a date and a reference to sub-clause 1.9.

If the documents do not contain these references and a claim later relies on them, the Engineer may argue that the request or submittal did not comply with the notice requirements of Sub-Clause 1.9 and reject the claim. It would be possible to counter this argument but, as is the case with anything to do with notices, it is always better to ensure that they are submitted in accordance with the Contract.

QUESTION. Would Sub-Clause 8.4(e) apply for the Engineer’s action?

Sub-Clause 8.4 (Extension of Time of Completion), subsection (e) provides that the Contractor is entitled to an extension of time caused by ‘any delay, impediment or prevention caused by or attributable to the Employer, the Employer’s Personnel, or the Employer’s other contractors on the Site’.

This is a great catch-all clause that may be applied to many situations on the average project and may certainly be used if the Engineer delays the Contractor by not responding to requests for information or submittals in a timely manner, or even in a situation where the Engineer does not provide a meaningful response or unreasonably rejects submittals. It should be noted however, that Sub-Clause 8.4 only allows an award of time and does not provide for costs to be reimbursed.

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