Extension of time claims under FIDIC: what your records actually have to show

Most extension of time claims that fail do not fail on entitlement. They fail because the contractor cannot produce the records to prove what everybody on the project already knows happened.

This is a records problem dressed up as a legal one, and it is worth understanding precisely, because the fix is procedural rather than adversarial.

The notice provision is where claims die first

Under FIDIC 1999 Sub-Clause 20.1, and its equivalent in the 2017 editions, notice must be given within 28 days of the date the contractor became aware, or should have become aware, of the event. Miss it and entitlement to time and money can be lost entirely, regardless of merit.

Two things make this harder in practice than it reads:

• The clock starts at awareness, not at impact. A late information release that will obviously delay a package starts the clock when it becomes apparent, not when the trade eventually stands by.
• Nobody owns it. Site staff see the problem; commercial staff know the clause. Between them, three weeks pass.

A register where incoming correspondence is date-stamped on arrival and the response clock is visible to everyone removes most of this failure mode. It is not sophisticated — it is simply that the deadline is on a screen rather than in somebody’s memory.

What the contemporaneous record has to contain

“Contemporaneous” means created at the time, in the ordinary course of running the project, for its own purposes. A schedule of events assembled during the claim carries very little weight. A dated letter issued within the notice period carries a great deal.

The documents that decide it

• The notice itself, with evidence of issue and receipt — this is why transmittal records matter as much as the letter.
• The instruction or event that caused the delay: a variation order, a drawing revision, an RFI response, a minuted instruction.
• The programme in force at the time, not the one produced afterwards.
• Actual progress records — installation dates, manhours and inspection records by area, which is what allows as-planned versus as-built to be run at all.
• Correspondence showing mitigation, because the contractor is generally required to use reasonable endeavours to minimise delay.

If assembling that set for an event three months ago takes more than an hour, the record is not doing its job.

Linking cause to effect

The most common technical weakness is a claim that establishes an event and establishes a delay, but never demonstrates the link between them.

An adjudicator or engineer needs to see which programme activities the event affected and how that propagated to a completion date. That means the variation register and the programme cannot live in separate systems maintained by separate people — the link has to exist in the record, not be argued afterwards.

This is precisely what planning and delay analysis is for when it sits alongside variations and correspondence rather than in a separate file.

Concurrent delay, briefly

Where a contractor delay runs alongside an employer delay, the position varies by jurisdiction and by contract. The UAE courts have shown a pragmatic approach, and FIDIC 2017 gives more structure than 1999 did, but the practical point holds either way: you cannot argue apportionment without records granular enough to separate the two.

Weekly progress by area, rather than a monthly percentage for the whole project, is usually the difference between an arguable position and a hopeless one.

A checklist worth running this month

• Pick one delay event from the last quarter. Time how long it takes to assemble the five documents above.
• Check whether any notice in the last six months was issued outside its contractual period.
• Confirm that progress is recorded by area and date, not as a single percentage.
• Confirm that variations reference the activities they affect.

If any of those is uncomfortable, the gap is in the record rather than in the entitlement — and it is fixable now, while the project is running, at a fraction of what it costs to reconstruct later.