In brief: Under FIDIC 2017, a contractor in the UAE who wants more time must give notice within 28 days of becoming aware of the event, follow it with a fully detailed claim within 84 days, and keep records throughout. Most EOT claims we review fail on notice and evidence, not on the merits of the delay.
Where the rules sit in FIDIC 2017
The 2017 Red and Yellow Books moved the contractor’s claims procedure into Sub-Clause 20.2. Extension of time itself is dealt with in Sub-Clause 8.5, which lists the causes that entitle the contractor to more time: variations, causes that give an entitlement under another sub-clause, exceptionally adverse climatic conditions, unforeseeable shortages of personnel or goods caused by epidemic or government action, and delay caused by the Employer or the Employer’s other contractors.
On most UAE projects the general conditions are amended by Particular Conditions. Before preparing any claim, check the Particular Conditions for changes to the notice periods, the list of delay events, the treatment of concurrent delay and any caps on time-related costs. We regularly see the 28-day period shortened, or the deemed-approval wording deleted.
Step 1: the Notice of Claim within 28 days
Sub-Clause 20.2.1 requires the contractor to give a Notice of Claim to the Engineer as soon as practicable and no later than 28 days after it became aware, or should have become aware, of the event. The notice must describe the event. It does not need to quantify the delay.
If the notice is late, Sub-Clause 20.2.1 says the contractor is not entitled to the extension and the Employer is discharged from liability for that event. The Engineer then has 14 days to give a notice saying the Notice of Claim was late. If the Engineer does not do this, the Notice of Claim is deemed valid, although the Employer can still dispute this later.
In practice, a short notice issued early is far better than a detailed notice issued late. A one-page letter that identifies the event, the date the contractor became aware of it and the sub-clauses relied on is enough at this stage.
Step 2: keep contemporary records
Sub-Clause 20.2.3 requires the contractor to keep the records needed to substantiate the claim, and the Engineer may inspect them. For a delay claim, the records that matter most are:
- the accepted baseline programme and every monthly update, in native Primavera P6 format (.xer), not only PDF;
- daily site reports with labour, plant and the work actually carried out;
- correspondence, RFIs, instructions and the dates they were received and answered;
- minutes of progress meetings and any delay registers kept by either party.
If the baseline was never accepted, or the updates were not submitted each month, the delay analysis becomes much harder to defend. This is the most common weakness we find.
Step 3: the fully detailed claim within 84 days
Within 84 days of becoming aware of the event, the contractor must submit a fully detailed claim under Sub-Clause 20.2.4. It must include a description of the event, a statement of the contractual and legal basis, the contemporary records relied on, and the detailed supporting particulars of the extension of time and any additional cost.
The statement of the contractual or legal basis is the part with its own time bar. If it is not submitted within the 84 days, the Notice of Claim lapses. The 2017 wording allows the Engineer to accept a late submission in some circumstances, but you should not plan on that.
If the event has a continuing effect, the first fully detailed claim is treated as interim. Further interim claims follow each month, and a final claim is due within 28 days after the effects of the event end.
Step 4: the delay analysis
The fully detailed claim has to show that the event delayed the completion date, not just that it happened. For a prospective EOT, the usual method is a time impact analysis: a fragnet for the delay event is inserted into the programme update current at the time of the event, and the programme is rescheduled to show the effect on completion.
For retrospective claims, windows analysis or as-planned versus as-built methods may fit the records better. Whatever method is used, it should be explained, repeatable by the Engineer, and consistent with the SCL Delay and Disruption Protocol or AACE RP 29R-03, both of which Engineers in the UAE commonly refer to.
Concurrent delay needs care. FIDIC 2017 says concurrency is dealt with according to the rules in the Special Provisions, and many UAE Particular Conditions add their own wording. Check what the contract says before applying any general principle.
Step 5: the Engineer’s determination
Once the fully detailed claim is received, the Engineer proceeds under Sub-Clause 3.7. The Engineer first consults the parties to try to reach agreement, and if no agreement is reached within 42 days, issues a determination within a further 42 days. A party that disagrees must give a Notice of Dissatisfaction within 28 days, or the determination becomes final and binding.
Diary the 28-day Notice of Dissatisfaction period as soon as a determination arrives. It is easy to miss while negotiations continue informally.
Points specific to UAE projects
- Time bars and local law. UAE law applies to most onshore projects, and there has been debate over how strictly courts and tribunals apply contractual time bars. Do not rely on that debate. Comply with the notice periods and take legal advice if a notice has been missed.
- Language and form. Check whether notices must be in a particular form, addressed to a named person, or copied to the Employer. Many Particular Conditions require this.
- Arbitration. Many UAE contracts refer disputes to arbitration, often under DIAC rules or at arbitrateAD in Abu Dhabi. The quality of the original claim submission usually decides how the case goes later.
A practical checklist
- Record the date you became aware of the event.
- Issue a short Notice of Claim within 28 days.
- Update the delay register and keep site records for the affected work.
- Prepare the time impact analysis using the latest accepted programme update.
- Submit the fully detailed claim, with the contractual basis, within 84 days.
- Submit monthly interim claims if the effect continues.
- Diary the Engineer’s response periods and the 28-day Notice of Dissatisfaction period.
This article is general guidance, not legal advice. The contract wording and the facts of each project decide the outcome.
Related: FIDIC 2017 extension of time claims explained · EOT claims consultants in Dubai · Solvix in the UAE
