Claim Events in the FIDIC Forms PDF

‘Claim’ Events in the FIDIC Forms The following is a summary of the ‘claim’ events in the FIDIC forms that specifically refer to Clause 20. RB= Red Book (2017), YB= Yellow Book (2017), SB= Silver Book (2017), EB= Emerald Book (2019). ‘x’ indicates no such right. 1. Contractor Claim Events Entitleme...

‘Claim’ Events in the FIDIC Forms The following is a summary of the ‘claim’ events in the FIDIC forms that specifically refer to Clause 20. RB= Red Book (2017), YB= Yellow Book (2017), SB= Silver Book (2017), EB= Emerald Book (2019). ‘x’ indicates no such right. 1. Contractor Claim Events Entitlement Event (summary only) Clause RB EOT & x Cost Plus Profit 1.9 Delay in necessary drawing or instruction x Error in Employer’s Requirements (& GBR in EB) an x experienced Contractor would not have discovered before Tender 1.13 Employer delay in obtaining permit (Clause 1.12 in SB) YB SB x EOT & x Cost Plus Profit EB x as YB EOT & same Cost Plus Profit same same EOT & same Cost Plus Profit same same x EOT & Cost Plus Profit 2.1 delayed access x Engineer fails to properly record progress of ELW or x provide the records to the Contractor within 14 days (or other agreed period) 4.6 instruction for unforeseeable extra cooperation with EOT & same others Cost Plus Profit same same 4.7 error in setting-out data EOT & same Cost Plus Profit x as YB 4.12 unforeseeable physical conditions at Site EOT Cost and same x as YB 4.15 changes to an access route EOT Cost and same same same 4.23 fossils etc EOT Cost and same same same 7.4 delay in tests due to Employer EOT & same Cost Plus Profit same same Graham Shuttleworth, 11 December 2019 x © Clause Entitlement Event (summary only) RB YB SB EB 7.6 Remedial work prior to Taking-Over due to Employer EOT & same Cost Plus Profit same 8.5 1) Variations; 2) exceptional climatic conditions; 3) unforeseeable shortages in personnel/goods caused by epidemic or government action; 4) delay/prevention by Employer or other contractors 5) measured quantity of any item >10% estimated EOT not 2, 3 not 5 or 5 8.10 suspension instructed by Employer unless Contractor EOT & same default Cost Plus Profit same same 10.2 Employer Taking-Over a Part EOT and same Cost Plus Profit x as YB 10.3 interference with Tests on Completion EOT and same Cost Plus Profit same as YB 11.7 delayed access after Taking-Over Cost Plus same Profit same same 11.8 search for defects not its fault Cost Plus same Profit same same x delay in Tests after Completion x Cost Plus same Profit same x delay in access to remedy failure to pass Tests after x Completion Cost Plus same Profit same 13.3.2 Contractor required to submit proposal for Variation Cost which is not accepted same same same 13.6 change in Laws/ permit/permission (including new) EOT and same after Base Date increase in Cost same same 16.1 suspension due to non- payment (including amounts in a EOT & same binding decision of DAAB or final and binding Cost Plus determination of the Engineer) Profit same same 16.2.2 right to terminate cured by Employer same same Graham Shuttleworth, 11 December 2019 not 5 EOT & same Cost Plus Profit same © Event (summary only) Clause Entitlement RB YB SB EB 16.3 work instructed after termination Cost Plus same Profit same same 16.4 termination for Employer default loss of same profit and other losses/dam ages same same 17.2 rectify loss/damage to Works due to an Exceptional EOT & same Event, ‘forces of nature’, the Employer or other Cost Plus contractors, design carried out by Employer. ‘forces of Profit nature’ is listed in addition to Exceptional Event although it may be one. So may be broader as the general requirements of an EE in Clause 18.1 do not apply. same same 18.4 Exceptional Event same same 2. EOT Cost and same Employer Claim Events Same Clause number and entitlement in Red, Yellow, Silver and Emerald Books unless stated. Clause Event (summary only) Entitlement 1.13 Contractor fails to provide assistance in obtaining or additional costs fails to comply with Employer permits or delays in obtaining its permits (clause 1.12 in Silver Book) 5.2.2 error in Contractor’s Documents (not in Red Book) costs reasonably incurred 7.4 delay in tests due to other Party costs (c/f ‘EOT & Cost Plus Profit’ for Contractor) 7.5 retest due to defects additional costs 7.6 remedial work by Employer prior to Taking-Over additional costs 8.7 measures to overcome slow progress additional costs (in addition to Delay Damages) 8.8 failure to complete within Time(s) for Completion Delay Damages 9.2 delayed Tests on Completion costs reasonably incurred in carrying out test itself 9.4 failed Test on Completion 1) IF deprives substantially whole benefit of the Works recover all amounts paid, Graham Shuttleworth, 11 December 2019 © Clause Event (summary only) Entitlement financing costs and costs of dismantling; OR 2) IF a Section cannot be used for its intended purpose, reject it and value as an omission Variation; OR 3) Performance LDs or, if no Performance LDs, reduced value of the Works 11.3 Works or Part cannot be used due to defect Extension of DNP 11.4 failure to rectify defect Employer may choose: (no Performance LD option in Red Book) 1) Costs of self-help; OR 2) Performance LD, or IF no Performance LD, reduced value of Works; OR 3) value part of Works which cannot be used as an omission Variation; OR 4) IF deprive substantially whole benefit of the Works, recover all amounts paid, financing costs and costs of dismantling. 11.8 search for defects which are Contractor’s fault costs reasonably incurred 11.11 failure to clear Site costs reasonably incurred less proceeds of sale 12.4 failure of Tests after Completion (not in RB) Performance LDs 13.6 change in Laws/ permit/permission (including new) decrease in Cost (c/f ‘EOT and increase in after Base Date Cost’ for Contractor) 3. Comparison TOTAL CLAIM EVENTS: Red Yellow Silver Emerald Contractor (EOT) 23 22 17 23 Contractor (additional payment) 23 + Variations 25 + Variations 19 + Variations 26 + V Employer (cost or LD) 15 4. 13 15 15 ‘other matters’ Referred to Engineer The following are the “other matters” referred to the Engineer for agreement/determination under Clause 3.7 (in the Silver Book, to the Employer’s Representative under Clause 3.5). These are not intended to be categorised as ‘Claims’ and so a different process applies (although note that the definition of ‘Claim’ is so broad this interpretation may be challenged). Graham Shuttleworth, 11 December 2019 © Same provision in Red, Yellow, Silver and Emerald Books unless stated. Clause Matter 10.2 reduction in Delay Damages due to Taking-Over of a Part 11.2 cause of a defect. If not due to Contractor, rectification work treated as a Variation. 12.1 measurement of the Works (Red Book only) 12.3 rate or price for valuation (Red Book only) 13.3.1 EOT/adjustments to Contract Price due to Variation by Engineer instruction. Red Book: measured & valued together with base scope under Clause 12 Yellow, Silver & Emerald: if no Schedule of Rates, Cost Plus Profit. If a Schedule of Rates: 1) any applicable rate; 2) a rate derived from any applicable rate; or 3) if no applicable rate, Cost Plus Profit. Red, Yellow & Silver: If the Variation is instructed following a proposal under Clause 13.3.2, it is unclear whether the proposal is binding, either as a lump-sum or a limit. 13.5 resources used in executing a Variation to be valued on a daywork basis. 14.4 revision of Schedule of Payments which is not based on progress due to a difference in actual progress compared to that on which the Schedule of Payments was based. 14.5 interim payment for 80% of the cost of Plant/Materials when shipped/delivered to Site, but only if identified for this purpose in Contract Data and any required off-Site payment security provided. 14.6 amounts identified by Contractor as incorrectly omitted from an Interim Payment Certificate. 15.6/18.5 valuation after termination. Whilst every effort has been made to ensure accuracy, this note is not an exhaustive treatment of the subject matter discussed and no responsibility for any loss occasioned to any person acting or refraining from action as a result of material in this note is accepted by the author. © Copyright. Graham Shuttleworth, 11 December 2019 ©