Standard Letter - FIDIC - Sub-Clause 4.12 and 20.1 and How to Break the Time-Bar Clause

This letter is part of our Online Master Course in FIDIC Contract Administration (Red Book – 1999 Edition) Please visit our website for information about our online Master Courses in construction claims, delay analysis and FIDIC contract administration (Red Book – 1999 Edition) http://www.constructionclaimsmastercourse.com/ __________________________________________________________________________________

Specimen Letter: Cl 4.12/1 Notice of Claim (For Extension of Time and Additional Payment) Letter No. 1 (Please refer to follow-up letters) Claim Heading – Unforeseeable Physical Conditions: Sub-Clause 4.12 [Unforeseeable physical conditions is deemed to include natural physical conditions, manmade/other physical obstructions, pollutants including sub-surface and hydrological conditions but it excludes climatic conditions]

Letter To: The Engineer [Per the Contact Details included in the Contract] Copied To: The Employer [Per the Contact Details included in the Contract] Date: [Insert Date- Notice should be sent within 28 days (or the amended time period specified in Part II or any other contract document which takes precedence over Part 1) after the Contractor became aware or should have become aware of the delay event or circumstance.] Letter Reference: [Insert Letter reference] Section 1) Relevant Contractual Reference(s): [Insert all relevant contractual terms and conditions relevant to the claim] 1. Sub-Clause 1.1.6.8 2. Sub-Clause 4.12 3. Sub-Clause 8.4 (b) 4. Sub-Clause 20.1 Section 2) Relevant Legal Reference (s): [Insert reference to any local statutory law which may be pertinent to this claim] Dear Sir/Madam, Subject: Claim No: [Insert Number & Description] – Notification of A Claim For An Extension Of Time And/Or Additional Payment Please be advised that we have encountered an unforeseen physical condition on site and this has negatively affected the progress of our works. Please find detailed below all relevant information related to this event. Date of Event: [Insert date] Location of Event: [Insert Location]

This letter is part of our Online Master Course in FIDIC Contract Administration (Red Book – 1999 Edition) Please visit our website for information about our online Master Courses in construction claims, delay analysis and FIDIC contract administration (Red Book – 1999 Edition) http://www.constructionclaimsmastercourse.com/ __________________________________________________________________________________ Description/Cause of event: [Insert description/cause of the event and describe why it was not reasonably foreseeable by an experienced contractor by the date for submission of the Tender – illustrative example given below] During excavation operations, we encountered hard material which, upon further investigation, turned out to be rocky strata. We could not have reasonably foreseen the presence of hard rock in this area because the geological data provided at tender stage did not contain any information about rocky strata. Effect of Event: [Insert details of all the effects arising from the event i.e. delay, disruption et al – illustrative example given below] Due to the discovery of rocky strata, we were obliged to cease excavation operations at the above location. Please note that we do not have the requisite equipment to excavate this type of material. As you are aware, activities in this area are on the critical path and we are in delay at the moment. In addition to delay, we have suffered disruption and loss of productivity at this location. Please treat this subject as a matter of urgency and issue an instruction/variation order to deal with the same. Impact on Sub-Clause 8.3 Programme: [Insert details of the affected activities including estimates of potential knock-on effects to other activities in the programme] Mitigation Measures: [Important - In general, a contractor is obliged to mitigate delay/cost but this does not equate to spending additional sums of money. However, any reasonably sums expended as a mitigation measure(s) to reduce serious losses is recoverable under most jurisdictions. Insert details of mitigation measures taken to reduce costs and/or delay – illustrative example given below] Insofar as possible, we have reallocated resources from the affected section to other areas on site. However, it was not possible to “productively” redistribute all plant and labour to other locations; therefore, in addition to unallocated idle resources, reallocated resources also suffered disruption and loss of productivity. Contemporary Records: [The Contractor is obliged to maintain contemporary records as may be necessary to substantiate any claim. either on Site or at another location acceptable to the Engineer] Pursuant to the requirements of Sub-Clause 20.1, we are maintaining contemporary records in order to substantiate the claim which will be submitted in due course. The Engineer and/or his authorised representatives are invited to inspect said records and advise of any additional requirements, if any.

This letter is part of our Online Master Course in FIDIC Contract Administration (Red Book – 1999 Edition) Please visit our website for information about our online Master Courses in construction claims, delay analysis and FIDIC contract administration (Red Book – 1999 Edition) http://www.constructionclaimsmastercourse.com/ __________________________________________________________________________________ In order to corroborate our claim, please find attached photographs, copies of relevant drawings (Tender v Construction) and other relevant documentation pertinent to this event. Notice of Claim: Please accept this letter as a notification of claim pursuant to Sub-Clause 4.12 of the Contract. As a result of the above event, it is submitted that we are entitled to claim for an extension of time and additional payment in accordance with Sub-Clause 20.1 of the Contract. [Note: A Claim could result in an extension of time and, if applicable, recovery of prolongation costs, reasonable profit plus potential disruption costs; it could also just be a claim for additional payment without an extension of time; e.g. a disruption claim] As detailed in Section 1 of this letter, references to all other relevant contractual provisions have been included for your information and records. [If applicable, insert a reference to legal provisions included in Section 2] We look forward to resolving this issue in an expeditious manner. Yours Faithfully, [Signed by the Contractor’s authorised representative, per Sub-Clause 4.3] Enclosures: [If available, enclose any relevant documentation related to the event; e.g. such as drawing with location, photographs, reports et al] Chronology of Correspondence referred to [If this is an ongoing issue, include a list of all correspondence related to this claim]: 1. Letter ref: [Insert reference], dated [Insert date] 2. …

ONLINE MASTER COURSE IN FIDIC CONTRACT ADMINISTRATION (RED BOOK – 1999 EDITION)

MODULE 25 TUTORIAL DOCUMENT

SUB-CLAUSE 20.1 BREAKING THE 28-DAY TIME-BAR N.M. Raj’s Online Master Course In FIDIC Contract Administration (Red Book – 1999 Edition) Alll Rights Reserved – Copyright N.M.Raj ©

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