Delayed Engineer's Response Potential Claim Under FIDIC 99 Redbookcontracts
It is common in construction projects to record hundreds of Request for Information (RFI), documents, material submittals etc. sent by the Contractor to the Engineer and awaiting instructions and/or approvals. More often than not these instructions or approvals are withheld or delayed, intentionally or not, which may burden the Contractor with delays and/or additional cost whilst awaiting for a reply from the Engineer.
FIDIC Red Book 99 discusses this issue in Sub-Clause 1.9 [Delayed Drawings or Instructions] where the Contractor shall give notice to the Engineer that the Works are likely to be disrupted if the necessary instruction and drawing is not issued in a particular reasonable time. The Contractor shall then describe the details of the said drawing/instruction, why and when it should be issued and the nature and particulars of the delay which could be suffered.
If the Contractor incurs actual delay and/or Cost as a result of Engineer's failure to comply with the notice (unless that the Engineer's failure was caused by any error or delay by the Contractor), the Contractor shall give a notice of claim under Sub-Clause 20.1 [Contractor's Claims] and proceed with the claim mechanism.
The Contractor may have his claim rejected if the Engineer argues that failing to give the abovementioned notice loses the Contractor his entitlement to any additional time and/or payment.
Therefore, I recommend that any such request/submittal (RFIs, shop drawings, material submittals, etc.) requiring an instruction or action by the Engineer under this Sub-Clause 1.9 should contain a reference to a date and Sub-Clause 1.9 in order to ensure that the submittal is in full accordance with the Contract.
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