Handling an EOT Claim under FIDIC 2017
An extension of time (EOT) claim under the FIDIC 2017 Red Book is won or lost on procedure as much as on facts. The contractor must give a timely notice, follow a fixed submission sequence, and prove the effect on the Time for Completion. The 28-day notice is the step most often missed.
Clause numbers below refer to the FIDIC 2017 editions. The 1999 editions use different numbering (for example Sub-Clause 20.1 for claims and 8.4 for extension of time), and Particular Conditions often change the time limits. Always check the contract actually signed.
1. Establish entitlement
Start with the contractual ground for the delay, not the programme. The usual grounds for an EOT under Sub-Clause 8.5 (Extension of Time for Completion) include:
- a Variation (Clause 13);
- delay in giving access to the Site (Sub-Clause 2.1);
- delayed drawings or instructions from the Engineer (Sub-Clause 1.9);
- unforeseeable physical conditions (Sub-Clause 4.12);
- other causes listed in Sub-Clause 8.5, such as exceptional adverse climatic conditions, unforeseeable shortages caused by epidemic or governmental action, or delay by Employer-Caused personnel.
A claim that cannot name the sub-clause it relies on is usually weak, however good the programme analysis behind it.
2. Give the notice within 28 days
Under Sub-Clause 20.2.1 the contractor must give notice to the Engineer as soon as practicable, and not later than 28 days after the Contractor became aware, or should have become aware, of the event or circumstance. The notice must state that it is a notice under Sub-Clause 20.2.1 and describe the event.
If the notice is late, the Time for Completion will not be extended and the Employer is discharged from liability for the claim (Sub-Clause 20.2.1). The contractor's remaining argument is often that the Employer's Representative or Engineer was already aware of the event, or that the notice was impracticable. Treat that as a fallback and never plan around it.
Notices must also meet the formal requirements of Sub-Clause 1.3 (Notices and Other Communications), including form, delivery and recipient.
3. Keep contemporary records
Sub-Clause 20.2.3 requires the contractor to keep contemporary records needed to substantiate the claim, and the Engineer may inspect them and instruct further records. In practice, daily reports, labour and plant returns, correspondence and progress photographs carry most of a delay claim.
4. Submit the fully detailed claim within 84 days
Sub-Clause 20.2.4 requires the contractor to submit a fully detailed claim within 84 days after becoming aware of the event, or within another period proposed by the contractor and agreed by the Engineer. It should include:
- a detailed description of the event and the Sub-Clause relied on;
- the contractual and other legal basis;
- the contemporary records;
- a cause-and-effect analysis of the delay and the proposed extension of the Time for Completion.
For a continuing event, the contractor submits interim claims at 28-day intervals and a final fully detailed claim within 28 days after the effects end (Sub-Clause 20.2.6).
5. Choose a delay analysis method that fits the records
The analysis must show the effect on the critical path and the Time for Completion. The method should match the quality of the programme and records available: time impact analysis, windows analysis, as-planned versus as-built, or collapsed as-built. I will compare these in a separate post.
Concurrent delay needs to be addressed expressly, because the contract governs how it is treated, and any mitigation steps taken should be recorded.
6. The Engineer's agreement or determination
After receiving the fully detailed claim, the Engineer must proceed under Sub-Clause 3.7 (Agreement or Determination): consult the parties to try to reach agreement, and failing that make a fair determination, giving notice within 42 days of receiving the claim, or within another period proposed by the Engineer and approved by the contractor. The determination takes account of all relevant circumstances.
If the claim succeeds, the Time for Completion is extended under Sub-Clause 8.5, which removes liquidated damages exposure for the extended period.
7. If the claim is rejected
Either party can give notice of dissatisfaction with the Engineer's determination within 28 days (Sub-Clause 3.7.5), after which the dispute goes to the DAAB under Clause 21 and, if unresolved, to arbitration (Sub-Clause 21.6). A determination that is not challenged in time becomes final and binding, which is another time bar to diarise.
Key dates at a glance
| Step | Sub-Clause | Time limit |
|---|---|---|
| Notice of claim | 20.2.1 | 28 days from awareness |
| Fully detailed claim | 20.2.4 | 84 days from awareness |
| Interim claims (continuing event) | 20.2.6 | Every 28 days |
| Engineer's agreement or determination | 3.7 | 42 days from receipt |
| Notice of dissatisfaction | 3.7.5 | 28 days from determination |
Practical points
- Diarise the 28-day and 84-day limits from the first day an event occurs, not from the day it is noticed internally.
- Notice early and cheaply. A short, compliant notice costs little, and fixing a missed one is difficult.
- Send the notice to the right party and in the right form under Sub-Clause 1.3.
- Check the Particular Conditions first. Gulf contracts often amend Clause 20, and local law may affect whether a time bar is enforceable, so take legal advice on the governing law.
This article is general information and not legal advice.