How to Prepare an Extension of Time Claim under FIDIC 2017

An extension of time (EOT) claim under the FIDIC 2017 Red, Yellow or Silver Book is won or lost on notices, records and a clear link between the delay event and the Time for Completion. This guide sets out the steps a contractor needs to follow, the deadlines in Clause 20.2, and what the Engineer will look for when assessing the claim.

When is a contractor entitled to an extension of time?

Sub-Clause 8.5 lists the causes that give the contractor a right to more time, to the extent that completion is or will be delayed. They include:

• a Variation, unless an adjustment to the Time for Completion was agreed when the Variation was instructed
• a cause of delay that gives entitlement under another Sub-Clause, such as late drawings or instructions, unforeseeable physical conditions, or delayed access to the Site
• exceptionally adverse climatic conditions
• unforeseeable shortages of personnel or goods caused by an epidemic or governmental action
• any delay, impediment or prevention caused by the Employer, the Employer’s Personnel or the Employer’s other contractors

The test is delay to completion, not delay to an individual activity. A late drawing that only uses up float does not on its own support an EOT. This is why the claim needs a programme analysis, not only a list of late items.

The Clause 20.2 timetable

FIDIC 2017 sets out a strict procedure for claims. The main dates are:

• Notice of Claim within 28 days of when the contractor became aware, or should have become aware, of the event (Sub-Clause 20.2.1). If the notice is late, the contractor loses its entitlement unless the Engineer or a later tribunal accepts that the delay in giving notice was justified.
• Fully detailed Claim within 84 days of the same date (Sub-Clause 20.2.4). It must include a description of the event, the contractual and legal basis, the contemporary records relied on, and the detailed supporting particulars of the time and cost claimed.
• Interim updates where the event has a continuing effect (Sub-Clause 20.2.6). The first fully detailed claim is treated as interim, and further interim claims are submitted monthly until a final claim is issued within 28 days of the end of the effects.
• The Engineer’s response within 42 days of receiving the fully detailed claim, followed by agreement or determination under Sub-Clause 3.7.

If the contractual and legal basis is not included within the 84 days, the Notice of Claim lapses. Many claims fail at this stage because the contractor treats the 84-day submission as a draft. It is better to submit a complete basis and develop the quantum later through interim updates.

What the delay analysis must show

The Engineer has to decide how much the event delayed completion. A good EOT submission answers three questions:

1. Was the event on, or did it become, the critical path to completion?
2. How many days of delay did it cause, after allowing for float and any mitigation?
3. Were there other delays at the same time that were the contractor’s responsibility?

During the project, the usual method is a time impact analysis: the delay event is modelled as a fragnet and inserted into the latest accepted programme update, and the change in the completion date is measured. Sub-Clause 8.3 requires the contractor to keep the programme up to date, so an accepted Primavera P6 programme is the starting point. If the programme was never accepted or is out of date, the analysis has to explain how the baseline was tested before it was relied on.

Concurrent delay under FIDIC 2017

Sub-Clause 8.5 states that if a delay caused by the Employer is concurrent with a delay caused by the contractor, the entitlement to an EOT is assessed in accordance with the rules and procedures in the Special Provisions. If the Special Provisions say nothing, it is assessed as appropriate, taking due regard of all relevant circumstances, and the governing law will also matter. The claim should say which approach it follows and why. Our article on concurrent delay in construction explains the main approaches.

Records to collect from day one

• the accepted baseline and every monthly programme update in native format (XER for Primavera P6)
• daily reports, labour and plant returns, and site diaries
• RFI and drawing registers showing dates requested and received
• correspondence, minutes of meetings and instructions
• photographs with dates, and weather records where climate is relied on

Sub-Clause 20.2.3 allows the Engineer to monitor the contractor’s contemporary records and instruct the contractor to keep additional records. Records made at the time carry much more weight than witness statements prepared later.

Common reasons EOT claims are rejected

• the notice was late or did not describe the event
• the claim shows the event delayed an activity but not completion
• the programme used for the analysis was never accepted or contains open ends and constraints
• contractor delays at the same time were ignored
• the cost claim was not linked to the period of delay

Once an EOT is granted, the programme needs to be updated correctly. See how to add a granted EOT to a Primavera P6 schedule.

Frequently asked questions

Is the 28-day notice period a strict time bar?

Yes, in principle. Sub-Clause 20.2.1 says the contractor is not entitled to additional time or payment if notice is not given within 28 days. Sub-Clause 20.2.5 allows the Engineer, and later the DAAB or arbitrator, to consider whether late notice was justified, so a late notice should still be given with an explanation.

Can one notice cover a continuing delay?

Yes. Where an event has a continuing effect, the first detailed claim is interim and is updated monthly under Sub-Clause 20.2.6 until the final claim is submitted.

Do the 1999 and 2017 editions work the same way?

No. Under FIDIC 1999 the notice is under Sub-Clause 20.1 (28 days) with a detailed claim within 42 days, and the EOT causes are in Sub-Clause 8.4. The 2017 edition adds the 84-day fully detailed claim, the lapse of notice if the legal basis is missing, and the concurrent delay wording in Sub-Clause 8.5.

Solvix prepares and reviews extension of time claims under FIDIC for contractors, employers and Engineers in the UAE, Saudi Arabia, Egypt and internationally.