Wa0006.

CONSTRUCTION CLAIMS
Schedule
Session 1- Introduction , types of claims, EOT claims

Session2- Delay Analysis, Prolongation claims
Session 3- Disruption claims ,Acceleration claims
Session 4 – Variation claims ,Overheads ,Global claims, Termination
claims, other claims
Session 5 – Entitlement and procedure under FIDIC and Indian
contracts
Session 6 – Formulating a Contract for Claim Avoidance,
Session 7 - Presentation of claims
Session 8- Practical tips for handling disputes,SCL Delay and Disruption
protocol
QUIZ
Q1.Excusable delay entitles contractor to :
A- Prolongation claims
B- EOT
C- Loss of profit
D- Additional costs
QUIZ
Q2. Concurrent delay if not specified in the contract , will entitle contractor to:
A- Additional costs
B- EOT
C- Prolongation claims
D- No claim
QUIZ
3 . Main purpose of EOT is to:
A- Enable payment to the contractor
B- Postpone contract completion date
C- Excuse contractor from LD
D- Entitle contractor to compensation
QUIZ
4. Delay Analysis may be carried:
A- Before the event occurs or after the event is over or any time during the event
B- Only the impacts of the event are clear
C- Immediately when the event occurs
D- Immediately after the event is over
QUIZ
5. FLOAT OR CONTINGENCY INCORPORATED IN A WORK PROGRAMME SHOULD BE
UTILIZED BY
A- THE CONTRACTOR , SINCE HE HAS MADE THE WORK PROGRAMME
B- THE EMPLOYER/ENGINEER , SINCE HE “OWNS” THE PROJECT
C- SHOULD BE DECIDED BY THE ENGINEER
D- BY EITHER CONTRACTOR OR EMPLOYER ON FIRST COME FIRST SERVE BASIS
QUIZ
6. In an EPC contract, a delay caused to different site conditions (than planned) will be:
A- Excusable, non-compensable delay
B- Excusable compensable delay
C- Non-excusable delay
D- Non-Excusable , compensable delay
QUIZ
7. The most important requirement for carrying out accurate delay analysis is:
A- To know which method to apply
B- To have an updated schedule
C- To have in-depth knowledge of delay analysis methods
D- To have knowledge of relevant software
QUIZ
8 . WHAT IS THE CORRELATION BETWEEN ACCELERATION AND MITIGATION IN
CONSTRUCTION CONTRACTS?
A- BOTH MEAN THE SAME
B- ACCELARATION IS A SUBSET OF MITIGATION
C- MITIGATION IS A SUBSET OF ACCELARATION
D- THERE IS NO CORRELATION BETWEEN THESE TWO CONCEPTS
QUIZ
9 . WHAT IS THE CORRELATION BETWEEN DELAY AND DISRUPTION IN
CONSTRUCTION CONTRACTS?
A- BOTH MEAN THE SAME
B- DELAY RELATES TO TIME WHILE DISRUPTION RELATES TO COSTS
C- DISRUPTION MAY OR MAY NOT LEAD TO DELAY
D- DISRUPTION IS NOT ON CRITICAL PATH
QUIZ
10 . WHAT ARE THREE TYPES OF FORCE MAJEURE IN INDIAN EPC CONTRACTS?
A- POLITICAL, ENVIRONMENTAL AND DISASTER
B- POLITICAL, ECONOMIC AND SOCIAL
C- POLITICAL , INDIRECT POLITICAL AND NON-POLITICAL
D- POLITICAL , ENVIRONMENTAL AND ECONOMIC
QUIZ
11. GLOBAL CLAIMS ARE
A – WHERE THE CONTRACTOR CAN CHOOSE CURRENCY IN WHICH TO TAKE
CLAIM
B- CLAIM RELATED TO SIMULTANOUS EVENTS IN DIFFERENT COUNTRIES
C- CLAIM IN WHICH CONTRACTOR CANNOT ATTRIBUTE LOSS TO INDIVIDUAL
CAUSES
D- CLAIM FOR DIFFERENT EVENTS WHICH HAPPEN AT SAME TIME
QUIZ
12. “TIME AT LARGE” IN A PROJECT
A- ENTITLES A CONTRACTOR TO EOT
B- ENTITLES A CONTRACTOR TO ADDITONAL COSTS
C- EXCUSES A CONTRACTOR FROM LEVY OF LD
D- ENTITLES A CONTRACTOR TO SUSPEND THE PERFORMANCE
WHAT IS COMMON ABOUT THESE THREE MARVELS?
SYDNEY OPERA HOUSE
CENTRE POMPIDUO PARIS
SCOTTISH PARLIAMENT BUILDING
Change management
Changes during Project Lifecycle
What is a change ?
• Modification to an agreement between project participants.
Issues
Differences in perception
Eg –Change in Painting specification
Minor for owner or main contractor
Significant impact on subcontractor – cost and schedule
Need to have common understanding of change , change control and
management
Change Control and change Management
• Change control is the process or processes that can lead to the
alteration of the timescale, the cost or scope of the project.
• Change management in turn involves the management of the control
process so that these changes to the timescale, cost and scope are
effectively implemented.
Changes during Project Lifecycle; Dynamics of
Change management
Elements of Project subject to Change
• Project scope
• Project specifications
• Project organization
• Work execution methods
• Control methods
• Contract and risk allocation
Why do Changes Occur
Owner initiated
• Change of requirement/Priorities
• New Technology
• Finances
• Errors in original requirement
• Value Engineering
Why do Changes Occur
Contractor caused
• Contractor’s errors
• Contractor’s labour problems
• Value Engineering
Neutral Events
• Unforeseen site conditions
• Unforeseen weather conditions
• Force majeure
• Third party
Some QS- Changes in Construction project
• Who initiates change proposal?
• When would a contractor initiate change proposal?
- Benefit to project(value Engineering- cost /time /value)
- Incorrect Employer’s requirements
- Neutral events if they impact time and cost and Employer has not instructed
change
Can a contractor refuse to implement change?
• Work unforeseeable as per original scope and specifications
• Cannot readily obtain goods
• Adversely effect compliance with Health/Safety/Environment
Changes during Project Lifecycle; Dynamics of
Change management
Why are we not able to recognize change ?
Scope Creep
Scope creep (sometimes known as “requirement creep” or even
“feature creep”) refers to how a project’s requirements tend to
increase over a project lifecycle.
Eg -Consider a company that is launching a new type of phone case
next month. The company has meticulously planned the product
launch from start to finish. However, over the course of development,
the CEO and exec team decide they want to add a ring light, battery
pack, and other elements to the case. This requires the project team to
spend considerable additional time on this product, which, in turn,
affects the product’s final launch date and the attendant revenue.
Planning change Management
Change Management Plan should address the process of identifying to
implementing changes with focus on protecting project objectives and realizing the
program benefits.
Qs
• Who initiated the change?
• Why it was initiated?
• When it was initiated?
• Where did the change occur or come from?
• What is the change?
• Who is affected by change?
• What elements or variables got impacted?
• How much each variable (cost, time etc) impacted?
• What is the sum effect of all impacts?
• Justification for change?
• Alternatives to the proposed change which has lesser impact?
Change Management process
Identifying change
• From the baseline
Evaluate change
• The next step after formally recognizing a change to the project Baseline by
issuing a Contract Change Notice (CCN) is to categorize it and quantify its
impact to the project. Project Manager shall review the CCN with the originator
and Project Controls to determine if it is valid or not and approves or rejects it
accordingly.
• Check whether a change identified deserves a CCN or it is actually internal
change/performance adjustment that a contractor needs to undertake to bring
project on track
Project Manager’s Response to Change
Notification
• Reject the CCN. Do not proceed with CO development or the work.
• Proceed with work based on ROM estimate while working out detailed
estimate.
• Proceed only after CO detailed estimate.
• Return the CCN package back to contractor for revisions and resubmittal.
• Disagree with the CCN and return it as the contractor's Internal Change
issue.
It is not advisable to proceed with the work without agreeing with
Owner/PIA whether it is the case of CO or performance correction by the
contractor.
Change Management System
• Addressed by
• Contract Document
• Operationalised by
• Project procedures
What is a Change management system?
Change Management System is a collection of documented and
approved procedures that defines the process steps by which the
project Baseline may be changed. It includes the paperwork, tracking
tools, and approval steps necessary for authorizing changes
ChangeControl
Overall change control is concerned with
• influencing the factors which create changes to ensure that changes
are beneficial for the program and project,
• determining that a change has occurred, and
• managing the actual changes when and as they occur
Requirements for Change Control
• Establishing a project Baseline.
• Maintaining the integrity of the project Baseline ± all approved
changes should be reflected in the project plan.
• Ensuring that changes to the scope of work are reflected in the
definition/design of the project scope.
• Coordinating changes across the entire project (for example, a
proposed schedule change will often affect cost, risk, quality, and
staffing).
Change management system
Should be incorporated into
• Project Execution Plan
• Contract Management Plan for Contractor
• SoPs
• What constitutes a change (Change Assessment Criteria)?
• Notification requirements (written, timing)
• Procedures/provisions for continuing work while change is under review
• Cost to prepare change estimate (paid by Client)
• Approval procedures
• Impact on incentives or penalties specified in the contract
• Adjustments to schedule/cost components of the Baseline
• Level of estimate review
• Resolution process of disputes over change order
Claims
ARCADIS GLOBAL CONSTRUCTION DISPUTES
REPORT-2022
Overall dispute cause
Rank
1. Poorly drafted or incomplete and unsubstantiated claims
2. Errors and/or omissions in the contract document
3. Owner/Contractor/Subcontractor failing to understand and/or comply
with its contractual obligations
Owner-directed changes
ARCADIS GLOBAL CONSTRUCTION DISPUTES
REPORT-2023
Overall dispute cause
Rank
1 . Errors and/or omissions in the contract document
2. Owner/Contractor/Subcontractor failing to understand and/or comply
with its contractual obligations
3. Poorly drafted or incomplete and unsubstantiated claims
Why Contractors do not claim additional costs
• Lack of awareness
• PM not aware of Project scope and what is included in contractor’s tender
documents
• PM has not read contract documents
• Contract personnel do not have required training and knowledge to
understand what they are entitled to.
• Lack of records
• PM is not taking record of work being done by his team and what employer
has provided
• Contract pers preparing invoices is not familiar with site conditions or the
work at site.
Why Contractors do not claim additional costs
• Focus of Delivery
• PM focus on delivering the project and neglects the financial aspects.
• PM believes everything will be sorted out by the time project ends
• Relationships
• Will spoil relationships with Engineer/Employer
Why Claims are rejected
• Variation is due to contractor’s fault
• Event was not unpredictable, hence contractor should have incorporated in his
tender price
• Contractor’s risk event
• Claim submitted is in not in accordance with contract document
• Claim is poorly put together without supporting evidence
• Employer does not understand the claim
• History of inflated claims by the contractor
• Employer feels he cannot be wrong.
• Employer expects contractor to be submissive
• Engineer wants to conceal his mistake
• Claim is based on wrong information and /or has factual, schedule or arithmetic
errors
CASE EXAMPLE : DELAY ANALYSIS
DAYS FROM
MILESTONE ACTIVITY NAME WITH PROGRESS COMMENCEMENT AS PER BASE LINE
DATE
MILESTONE-1 CONTRACTOR SHALL HAVE COMMENCED OF THE CONSTRUCTION OF
THE PERMANENT WORKS AND A TOTAL PAYMENT OF AT LEAST 10% OF 325 DAYS 04-JUN-17
(MS1) THE ACCEPTED CONTRACT AMOUNT.
MILESTONE-2 CONTRACTOR SHALL HAVE ACHIEVED THE FOLLOWING:

(I) 50% OF THE TOTAL NUMBER OF MAJOR BRIDGE AND MINOR 570 DAYS 04-FEB-18
MS2 BRIDGES.
MILESTONE-3 CONTRACTOR SHALL HAVE COMPLETED THE LINKING OF MAIN LINE

TRACK IN THE 95% LENGTH OF THE CONTRACT AND MADE IT FIT FOR 940 DAYS 09-FEB-19
(MS3) THE USE OF THE EMPLOYER.
MILESTONE-4 CONTRACTOR SHALL HAVE COMPLETED THE TESTS ON COMPLETION

INCLUDING INTEGRATED TESTING REQUIRED, COMPLETE IN ALL 1020 DAYS 30-APR-19
MS4 RESPECTS .
MILESTONE-5 CONTRACTOR SHALL HAVE COMPLETED ALL NECESSARY WORKS
1100 DAYS 19-JUL-19
MS5 REQUIRED AS PER THE CONTRACT TO ENABLE CERTIFICATION OF TRACK
WE FACED VARIOUS CHALLENGES TO CONVINCE THE EMPLOYER AS THE PRIMAVERA APPROACH
WAS ALL NEW TO THEM TO UNDERSTAND AND THEY DIDN’T WANT TO SHIFT FROM THE OLD EXCEL
MODEL OF DELAY ANALYSIS, WHICH GAVE A VAGUE AND IMPRACTICAL RESULTS.
MILESTONE MS-1 MS-2 MS-3 MS-4 MS-5

DAYS FROM COMMENCEMENT
325 570 940 1020 1100
DATE
MS DATES AS PER CONTRACT 4-JUN-17 4-FEB-18 9-FEB-19 30-APR-19 19-JUL-19
EOT-1: APPLIED 10-FEB-18 20-JUL-18 19-JUN-19 24-OCT-19 2-JAN-20

EOT-1: APPROVED 17-DEC-17 31-MAR-18 9-FEB-19 30-APR-19 19-JUL-19
EOT-4 APPLIED 21-JUN-18 03-JUN-19 06-JUN-20 26-AUG-20 13-NOV-20
EOT-4 APPROVED 30-MAR-18 31-DEC-18 9-FEB-19 30-APR-19 19-JUL-19
EOT-5: APPLIED 21-JUN-18 20-AUG-19 24-AUG-20 12-NOV-20 01-FEB-21
EOT-5: APPROVED BY THE
30-MAR-18 31-MAY-19 04-JUNE-20 23-AUG-20 11-NOV-20
EMPLOYER
EOT-6 : APPLIED 21-JUN-18 31-DEC-19 09-JAN-21 30-MAR-21 21-JUN-21
EMPLOYER PROMISED TO HAND OVER THE RIGHT OF ACCESS TO AND POSSESSION OF SITE :-
SL. NO. PERIOD AFTER COMMENCEMENT DATE IN DAYS. CUMULATIVE % OF LAND TO BE HANDED OVER
COMMENCEMENT DATE – 14/07/2016
1. 28 DAYS 80%)
2. 91 DAYS 85%
3. 182 DAYS 95%
4. 365 DAYS 100%

THE UPDATED STATUS OF LAND AS ON 30.04.2019
SEQUENTIAL STRETCHES
CONSIDERED IN APPROVED LENGTH UNDER
BASELINE TOTAL LENGTH STRET
HINDRANCE / STRETCH > STRETCH > 5
S.NO LENGTH IN AVAILABLE TO CH > 1
NOT HANDED 10 KM KM
KM WORK IN KM KM
FROM TO OVER IN KM
1 1367.9 1373.2 5.300 5.300 0 0 1 0

2 0 6.996 6.996 5.356 1.64 0 0 3
3 1373.2 1386.6 13.400 12.040 1.36 0 0 6
4 0 4.336 4.336 3.04 1.296 0 0 1
5 1391 1394.2 3.2 3.120 0.08 0 0 2
6 1394.2 1404 9.8 9.140 0.66 0 0 3
7 1404 1406.710 2.710 1.19 1.52 0 0 1
8 1406.710 1412.120 5.30 1.67 3.72 0 0 1
9 1412.120 1413.896 1.796 0.640 1.156 0 0 0
10 0 0.9 0.9 0.68 0.22 0 0 0
TOTAL 53.828 42.176 11.652 0 1 12
THE FRAGNET ACTIVITIES/WBS ID OF THE DELAY EVENTS IN RIGHT OF ACCESS TO AND POSSESSION OF
ENCUMBRANCE FREE SITE
Activity/WBS ID Delay Events Activities/WBS Name Start Finish
302-EOT6.2.1.1.1 1367.900 - 1369.300 06-Jun-17 29-Jun-19
302-EOT6.2.1.1.2 1369.300 - 1370.800 01-Jul-17 31-Dec-18
302-EOT6.2.1.1.3 1370.800 - 1372.040 31-Aug-17 30-Nov-18
302-EOT6.2.1.1.4 1372.040 -1373.200 01-Jul-17 29-Jun-19
302-EOT6.2.1.2.1 0.000- 1.300 31-Oct-17 29-Jun-19
302-EOT6.2.1.2.2 1.300- 2.200 01-Jul-17 28-Feb-19
302-EOT6.2.1.2.3 2.200- 3.340 01-Sep-17 29-Jun-19
302-EOT6.2.1.2.4 3.340 - 4.800 01-Sep-17 29-Jun-19
302-EOT6.2.1.2.5 .800 - 6.996 01-Sep-17 29-Jun-19
302-EOT6.2.1.3.1 1373.200 - 1375.760 01-Jul-17 29-Jun-19
302-EOT6.2.1.3.2 1375.760 - 1379.720 06-Jun-17 31-Jul-17
302-EOT6.2.1.3.3 1379.720 - 1380.120 31-Jul-17 29-Jun-19
302-EOT6.2.1.3.4 1380.120 - 1381.690 06-Jun-17 31-Jul-17
302-EOT6.2.1.3.5 1381.690 - 1381.720 14-Jul-18 29-Jun-19
302-EOT6.2.1.3.6 1381.720 - 1382.720 06-Jun-17 31-Jul-17
302-EOT6.2.1.3.7 1382.720 - 1382.840 06-Jun-17 29-Jun-19
302-EOT6.2.1.3.8 1382.840 - 1384.060 06-Jun-17 31-Jul-17
302-EOT6.2.1.3.9 1384.060 - 1384.560 31-Aug-17 31-Aug-17
302-EOT6.2.1.3.10 1384.560 - 1386.600 06-Jun-17 29-Jun-19
302-EOT6.2.1.3.11 1386.600 - 1387.000 06-Jun-17 29-Jun-19
WAIR Detour 16-Feb-18 29-Jun-19
Activity/WBS ID Delay Events Activities/WBS Name Start Finish
302-EOT6.2.1.5.8 1391.480 - 1392.560 01-May-17 29-Jun-19
302-EOT6.2.1.5.9 1392.560 - 1394.000 06-Jun-17 29-Jun-19
302-EOT6.2.1.5.10 Land for Relocation of IR Quarter 14-Jun-17 14-Aug-18
302-EOT6.2.1.6.1 1394.000 - 1397.180 01-May-17 27-May-17
302-EOT6.2.1.6.2 1397.180 - 1399.600 31-May-17 29-Jun-19
302-EOT6.2.1.6.3 1399.600 - 1404.000 01-May-17 29-Jun-19
302-EOT6.2.3.1.1 1404.000 - 1406.710 31-Oct-17 29-Jun-19
302-EOT6.2.3.1.2 1406.710 - 1408.300 01-Sep-17 29-Jun-19
302-EOT6.2.3.1.3 1408.300 - 1411.800 14-Jul-18 29-Jun-19
302-EOT6.2.3.1.4 Handover 1411.800 -1412.100 31-Oct-17 29-Jun-19
302-EOT6.2.3.1.5 1412.100-1413.856 14-Dec-17 29-Jun-19
302-EOT6.2.3.1.6 1411.800 - 1412.700 WDFCC 17-Sep-17 29-Jun-19
DELAY EVENT IMPACT ON CONTRACT COMPLETION DATE & CONTRACTOR IS ENTITLED FOR AN
EXTENSION OF 546 DAYS ON ACCOUNT OF DELAY IN HANDING OVER 100% OF SITE FREE FROM
ENCUMBRANCES AND HINDRANCES.
ACTIVITY/WBS ID DELAY EVENTS ACTIVITIES/WBS NAME START FINISH
DEL1070 DELAY- S&T CABLE INFRINGEMENT BETWEEN CH 1373.22 KM TO CH 06-DEC-17 30-APR-18
1387.00 KM (BR NO 177,178,179,180,181,182,183,184,187,188,190
DEL1080 DELAY- S&T CABLE INFRINGEMENT BETWEEN CH 1391.00 KM TO CH 06-DEC-17 30-APR-18
1394.20 KM & CH 1394.2 TO 1413.85 (BR NO 195,196,197,199,200)
D16870 30-APR-19 29–JUN-19
CABLE SHIFTING ON TO ROW BETWEEN 1367.900-1373.200
D16880 CABLE SHIFTING ON TO ROW BETWEEN 1373.200 - 1387.000 30-APR-19 29–JUN-19
D16890 CABLE SHIFTING ON TO ROW BETWEEN 1391.000-1394.000 30-APR-19 29–JUN-19
D16910 30-APR-19 29–JUN-19
CABLE SHIFTING ON TO ROW BETWEEN 1404.000 - 1406.710
D16920 CABLE SHIFTING ON TO ROW BETWEEN 1406.710-1412.120 02-DEC-17 29-JUN-19
D16940 CABLE SHIFTING ON TO ROW AT BORAKI YARD 30-APR-19 29–JUN-19
D17250 30-APR-19 29–JUN-19
CABLE SHIFTING ON TO ROW FOR WDFC CONNECTING LINE FROM 0-0.756
D14200 ELECTRICAL LINE ABOVE 33KV BY DFCC IN KHURJA DETOUR 6.650KM - 01-OCT-18 29–JUN-19
6.750KM
D14210 ELECTRICAL LINE ABOVE 33KV BY DFCC IN WAIR DETOUR BETWEEN 30-APR-19 29–JUN-19
1.200KM -1.400KM
D14220 ELECTRICAL LINE ABOVE 33KV BY DFCC IN WAIR DETOUR BETWEEN 2.80KM 30-APR-19 29–JUN-19
- 3.080KM
D14230 ELECTRICAL LINE ABOVE 33KV BY DFCC @CH:1412.220KM 30-APR-19 29–JUN-19
D14240 ELECTRICAL LINE ABOVE 33KV BY DFCC @CH:1412.400KM 30-APR-19 29–JUN-19
D14250 ELECTRICAL LINE ABOVE 33KV BY DFCC BETWEEN CH:1412.450KM - 30-APR-19 29–JUN-19
CH:1412.750KM
DELAY EVENT EXTENSION OF TIME ENTITLEMENT – 574 DAYS
MILESTONE MS-1 MS-2 MS-3 MS-4 MS-5
DAYS FROM 325 570 940 1020 1100

COMMENCEMENT DATE
MS DATES AS PER 4-JUN-17 4-FEB-18 9-FEB-19 30-APR-19 19-JUL-19
CONTRACT
EOT-1: APPLIED 10-FEB-18 20-JUL-18 19-JUN-19 24-OCT-19 2-JAN-20
EOT-1: APPROVED 17-DEC-17 31-MAR-18 9-FEB-19 30-APR-19 19-JUL-19
EOT-4 APPLIED 21-JUN-18 03-JUN-19 06-JUN-20 26-AUG-20 13-NOV-20
EOT-4 APPROVED 30-MAR-18 31-DEC-18 9-FEB-19 30-APR-19 19-JUL-19
EOT-5: APPLIED 21-JUN-18 20-AUG-19 24-AUG-20 12-NOV-20 01-FEB-21
EOT-5: RECOMMENDED BY 30-MAR-18 31-MAY-19 04-JUNE-20 23-AUG-20 11-NOV-20

ENGINEER
EOT-6 : APPLIED 21-JUN-18 31-DEC-19 09-JAN-21 30-MAR-21 21-JUN-21
Engineer completely ignored the timeline of approval of EOT Application-5, while determining the extension of
time and seeking Employer’s approval. Other flaws in the determination include the fact that no extension of
time for MS-01 has been considered in EOT-5 and rather choosing to stick with the earlier determined date (as
approved in EOT 4) of 30.3.2018 and hence were not practical at all and imaginary without any concrete way
of determination is contrary to the basic terms of the Contract.
Further, to this the Engineer was to consult with each party to reach on an agreement. Though, the Engineer
called us and we attended the meeting for discussion on the EOT Application, and the Engineer completely
ignored our views presented during the meeting and presented in its EOT Application.
Despite conveying our dis-satisfaction to such arbitrary determination of EOT by the Engineer / Employer, the
Engineer did not respond and review the recommendation of the EOT dated 28.03.2019 and its
recommendation / determination of EOT does not accounted the factual events & circumstances.
• NO CORRELATION BETWEEN CHAINAGES /KM ON PG3 AND % ON PG 5 LAND HANDING OVER.
• DOES NOT GIVE CLEAR PICTURE SINCE IN % YOU HAVE NOT MENTIONED WHEN 80% HANDED
OVER, WHEN 85%, 90 AND 95% AND 100% HANDED OVER AND IN KM YOU HAVE JUST GIVEN
STATUS AS ON 30.4.19 .IT IS OBVIOUS THAT THESE STRETCHES WOULD HAVE BEEN HANDED
OVER AT VARIOUS TIME INTERVALS BETWEEN 6 JUN 17 AND 30 .4.19. COORD TIMELINES WITH KM
AS WELL AS % TO GIVE A CLEARER PICTURE THAT BY ..DATE ..% HANDED OVER AND SO ON.
• YOU HAVE ONLY SHOWN THAT BY 30.4 .19 , 11.65 KM OUT OF 53.82 KM WAS STILL PENDING .THAT
IS NOT ENOUGH. YOU NEED TO SHOW TIMELINES OF EACH OF SER NO1 TO 10 , WHEN WERE
THESE TO BE HANDED OVER CONTRACTUALLY AND WHEN WERE THEY ACTUALLY HANDED
OVER?
• DID YOU SUBMIT A REVISED CPM /SCHEDULE WITH EACH DELAY?
• WHICH ALL STRETCHES WERE HANDED OVER WHEN YOU COMMENCED WORK .
YOU NEED TO MAKE THIS SIMPLER , MORE SYSTEMATIC AND SEQUENTIAL AND CUT OUT IRRELEVANT
PORTIONS. I AM SURE THE EMPLOYER AND ENGINEER WOULD HAVE GOT A BIT CONFUSED BY THIS.
COMING TO SPECIFICS:
1. LIST OUT - WHAT WERE THE NON- FULFILLMENT OF OBLIGATIONS BY EMPLOYER THAT YOU HAVE MENTIONED
IN PG 1
2.LIST OUT REASONS FOR YOUR EOT 5 AND EMPLOYERS' REASONS FOR REDUCING IT.
4. REASONS FOR EOT 6 , WHAT WERE THE ADDITIONAL DELAYS AFTER EOT 5?
4. WHAT WERE THE HINDRANCES WHEN SITE WAS HANDED OVER ON 06 JUN2017? PG4
5. WHAT WERE THE ANTICIPATORY LOSSES THAT YOU FORECASTED ? GIVE DETAILS AND AMOUNT.
6. GIVE CUMULATIVE % OF LAND HANDED OVER - WHAT EMPLOYER HAD PROMISED AND WHAT WAS ACTUALLY
GIVEN IN TERMS OF CUMULATIVE %?
7. GIVE DATES OF CHAINAGE/STRETCHES WHICH WERE ACTUALLY HANDED OVER . WHEN WAS THE BALANCE
HANDED OVER?
8. WHAT WAS THE STATE OF LAND POSSESSION AND WORK PROGRESS WHEN FORCED STOPPAGE TOOK PLACE
BY BHARTIYA KISAN UNION?
9.WHAT WAS THE EXTENT OF HINDERANCE DUE TO TREE REMOVAL? ENTIRE SITE OR PART THEREOF? SINCE
THIS WAS FOR IR QTRS ,WAS THIS ON CRITICAL PATH.?
11. GIVE OUT DELAY ANALYSIS BY MAKING SIMPLE DIAGRAMS FOR EASE OF UNDERSTANDING.
12. IT MAY BETTER IF YOU LIST OUT EOTS AS PER SEQUENCE (EOT1- EOT6) WITH YOUR REASONS
AND REASONS FOR REJECTION/CURTAILMENT BY EMPLOYER. YOU HAVE FIRST GONE ON TO EOT5
AND 6 THEN EOT 1 AND 4 (ARE THERE EOT 2 AND 3 ALSO?)
13. NO OF PERIODS ARE OVERLAPPING BETWEEN DATES OF POSSESSION OF SITES, FORCED

STOPPAGES AND REMOVAL /SHIFTING OF UTILITIES. HAVE YOU RECONCILED THESE OVERLAPPING
PERIODS . IF SO GIVE DETAILS .
WHILE YOU HAVE INCLUDED DETAILS , YOU NEED TO LEARN THE ART OF MAKING IT SIMPLE FOR
THE ENGINEER AND EMPLOYER TO UNDERSTAND, THE EASIER YOU MAKE IT FOR THEM TO
UNDERSTAND , MORE CHANCES YOU HAVE OF IT BEING ACCEPTED. IF EMPLOYER/ENGINEER HAS
TO SPEND CONSIDERABLE TIME IN MOVING TO AND FOR AND TRYING TO UNDERSTAND , THEY WILL
SIMPLY REFER IT TO DRB.
IN CASE THE ENGINEER WAS NOT TOO CONFIDENT WITH PRIMAVERA AND YOUR DELAY ANALYSIS
TECHNIQUES , IT WAS INCUMBENT UPON YOU TO MAKE IT SIMPLER , IF REQUIRED, AS A SIMPLE
CPM AND EVEN A BAR CHART AND EXPLAIN
THE CONTRACTS CLEARLY STATES PRIMAVERA SCHEDULE HAS TO BE THE BASIS
WHAT HAPPENED TO THE CASE
• WENT TO DRB AND THEN ARBITRATION
What is a claim?
• A request for a benefit which a claimant believes or contends he is

entitled to
• Demand for something considered one’s due
Construction Claims-underlying Principle
Unique nature of claims
• Each claim raises specific issues.
• Only a contract gives entitlement to contractual claim.
• Actual entitlement different under different forms of contracts.
• Claim under the law gives entitlement to “extra contractual” claim.

Types of Claims
• EOT claims
• Only Time
• Prolongation costs
• Loss of profit
• Loss of Opportunity
• Variations
• Additional items
• Substitute items
• Extra items
• Omissions
Types of Claims
• Disruption claims
• Acceleration claims
• Escalation claims
• Damages
Types of Delays
► ECD- Excusable, Compensable

= Client Risk Event
= EOT + Prolongation costs+ No LD
► END- Excusable , Non-Compensable
= Delay Event not caused by contractor or Employer
= EOT + NO Prolongation cost + No LD
► NND- Non- Excusable, Non-Compensable(Inexcusable)
= Contractor Risk Event
= No EOT + No prolongation cost + LD
Purpose of EOT
The benefit to the Contractor
of an EOT is to relieve the Contractor of liability for damages for delay (usually LDs) for
any period prior to the extended contract completion date and allows for
reprogramming of the works to completion.
The benefit of an EOT for the Employer is
that it establishes a new contract completion date, prevents time for completion of the
works becoming ‘at large’ and allows for coordination / planning of its own activities.
EOT
PURPOSE OF EOT
• RELIEVE CONTRACTOR OF LIABILITY FOR DAMAGES FOR DELAY
• ALLOW FOR REPROGRAMMING OF WORK/RESETTING OF MILESTONES
• GET ESCALATION FOR MATERIAL , LABOUR , FOL
• OBTAIN PAYMENT ON INTERIM BILL
• EST NEW CONTRACT COMPLETION DATE
• PREVENTS TIME FOR COMPLETION OF WORKS BECOMING ‘TIME AT
LARGE’
EOT:INDIAN CONTEXT
• BASED ON MILESTONES
• CONTRACTOR TO APPLY ON OCCURENCE OF EVENT
• BASED ON HINDERANCE REGISTER, ENGINEER CAN GRANT EOT EVEN IN
ABSENCE OF APPLICATION FROM CONTRACTOR
• APPLICATION WITHIN 14 DAYS OF HINDERANCE OCCURRENCE
• SUPPLEMENTARY AGREEMENT
• EOT WITH OR WITHOUT COMPENSATION/LD
• NO PAYMENT OF INTERIM BILL W/O EOT
• IF APPLICATION OF CONTRACTOR DELAYED BEYOND 14 DAYS- NOT
NECESSARILY BARRED
• EOT GENERALLY GIVEN AFTER EFFECT OF HINDERANCE IS OVER
• AE TO DECIDE UPON EOT WITHIN 15 DAYS OF COMPLETION OF WORK OR
FORWARD TO EE WITHIN 30 DAYS OF COMPLETION OF WORK
• EE DECIDE WITHIN 15 DAYS OR FORWARD TO SE
• WITHOUT PREJUDICE TO RIGHT OF GOVT TO RECOVER LD !
• RESCHEDULING OF MILESTONES AFTER EOT
EOT claims
Pts to be considered
• Is the delay due to a cause that was /wasn’t specified in contract
documents
• Some specific delay events in contract-
• restricted working hours,
• complying with security requirements
• Is the delay on critical path/impacting the task on the critical path
• Items not on critical path may become critical if delayed, may become critical
• Consider lead times of SCM
EOT claims
• Is the delay an unexpected event?
• Delay cannot be claimed for complying with normal statutory obligations
and good practice known at the time of pricing the project
• Delay must be outside contractor’s control
• Delay must be for an event that hasn’t been specifically excluded in the
contract document
• Employer must be aware of obligations the contractor claims they haven’t
fulfilled.
• Delay is not due to actions of subcontractor
• Delay cannot be due to shortage of material
• If these are available elsewhere(even at a higher price)
EOT claims
• Delay should on approved construction schedule
• Delay must be something contractor cannot reasonably foresee
EOT claims
Concurrent Delays
• Employer caused delay of 10 days due to late issue of drawings(D+10)
• Contractor had planned material and work to commence (D+3). The
material got 3 days late
• EOT?
• Timing of delay important
Force Majeure
• War, hostilities, Rebellion, civil war
• Riot , commotion, strike, lockout
• Explosive material, contamination etc
• Natural catastrophe
4 pt test
• Beyond a party’s control
• Party could not have reasonably provided for before entering into the
contract
• Having arisen , the party could not have reasonably avoided or overcome
• Is not substantially attributable to the Employer
Force Majeure
• Warning of nation-wide transport strike next week
• Contractor to prove that he could not have stockpiled critical items on site
Entitlement to EOT
• Late issue of drawings by Employer
• Late access to site
• Partial access to site
• Prove intention to do work
• Insist on Employer giving timeline
• Scope increase
• Unforeseen site conditions
• Unforeseen weather conditions
• Changes in legislations
Factors to consider for EOT claims
• Approved construction schedule
• Input Delay event
• See impact on critical path
• Is that enough?
• Revised schedule may put certain activities into unsuitable seasons-
excavation pushed into monsoon season due to delayed access to site
• Discontinuities and underutilisation – eg re-est of large cranes
• May change resource peaks and troughs eg lack of labour during
Diwali season
Factors to consider for EOT claims
• Some specialist equipment / subcontractor may not be available
• Early delivery of material
• Storage issues
• Double handling
Reasonable Duration for Additional Tasks: Case Example 1
Employer changes building’s roof from steel structure to concrete slab.

Assume both take same time to construct. What other factors will you
consider for EOT ?
• Concrete slab needs support while it gains strength- sp props may
restrict work site, flexibility and efficiency
DELAY ANALYSIS
APPROACH – DELAY ANALYSIS METHODOLOGIES
Retrospective Analyses Prospective Analyses
LOOKING BACK LOOKING FORWARD
• As‐planned versus As‐built • Time‐Impact Analysis

• As‐Built But For • Impacted As‐planned
TWO
Types
FOUR
Categories*
6
APPROACH – AS‐PLANNED VS AS‐BUILT (APAB)
Compare As‐Planned vs As‐Built
Activities Timescale
Planned CP Contractual Actual
Completion Completion
As‐built CP Date
Date
(delays)
(delays and disruptions)

Claim
DELAY ANALYSIS:AS PLANNED V AS BUILT
• IDENTIFY BASELINE PGME (ORIGINAL PLAN)
• IDENTIFY CRITICAL AND NEAR CRITICAL PATHS

•
• COMPARE BOTH PROGRAMS BASED ON DELAYS
• CHECK FOR DELAYS ON CRITICAL PATH AND WHO WAS RESPONSIBLE FOR EXTENDING
DURATION OF DELAYED ACTIVITIES
APPROACH – AS‐PLANNED VS AS‐BUILT (APAB)
• is the most basic method of analysis

• is observational – no changes are made to the programme
• straightforward comparison between the planned vs the actual
performance of the work
• can only be carried out retrospectively (requires as‐built programme/or at
least the overall as‐built completion date)
Strengths Weakness
• is very simple and • Static critical path
therefore easy to • fails to fulfil the fundamental
understand requirement to demonstrate the
• can be performed with causal link between a delay event and
rudimentary base data (e.g. its alleged effect
when detail and logic of the as‐ • does not deal adequately
planned programme is with concurrent delay
unavailable, and no detailed
progress records other than the
overall as‐built programme are
available) 7
SETTING UP THE AS PLANNED SCHEDULE INTO A VISUAL DATABASE
30
ADDING DAILY REPORT DATA INTO A VISUAL DATABASE
79
CONVERTING DAILY REPORT DATA INTO PERFORMANCE METRICS
80
APPROACH – AS‐BUILT BUT FOR (ABBF)
• Identify Planned Period & As‐built
Planned Actual
Planned Completion Completion
period
As‐built
81
• Identify Delays
Planned Actual
period
As‐built
82
• ‘Zero’ delays
Planned Actual
period
As‐built
Actual Completion ‘but for’

delays
83
• Quantify Claim
Extended
Completion
Contract
Contract Completion
period Actual
Completion
As‐built
Culpable or non‐ Claim

claimable delays period
Actual Completion
‘but for’ delays
84
DELAY ANALYSIS :AS BUILT BUT FOR
• EXTRACT THE OWNER DELAY EVENTS FORM THE AS BUILT PGME TO DETERMINE
THE IMPACT OF THESE DELAYS ON THE NETWORK
• COMPARE WHAT WOULD HAVE HAPPENED BUT FOR EXCUSABLE DELAYS AND WHAT
ACTUALLY HAPPENED
• IDENTIFY AS BUILT PLAND
• IDENTIFY CRITICAL AND NEAR CRITICAL PATHS ON PLANNED PGEM
• IDENTIFY ALL APPROVED EOTs , QAUTIFY DELAYS
• PREPARE COLLAPSED AS BUILT BY REMOVING EVENT BY EVENT
• COLLAPSE AS BUILT CONTAINS
• AS BUILT CRITICAL PATH INCLUDING NEAR CRITIAL LONGEST PATH
• BASELINE CRITICAL AND LONGEST PATH
• ALL CONTRACTUAL MILESTONES
AS BUILT BUT FOR SCHEDULE ANALYSIS
• IF AS BUILT SCHEDULE COMPLETION COLLAPSES TO EARLIER
COMPLETION DATE AFTER OWNER CAUSED DELAYS ARE REMOVED
• NET DURATION OF SCHEDULE COLLAPSE IS AMOUNT OF
COMPENSABLE DELAY DAYS FOR WHICH OWNER IS RESPONSIBLE
• IF AS BUILT SCHEDULE COLLAPSES TO PROJECTED COMPLETION
DATE AFTER OWNER CAUSED DELAYS ARE REMOVED
• THE TOTAL AMOUNT OF DELAY WAS SOLELY CAUSED BY OWNER
• IF THE AS BUILT SCHEDULE DOES NOT COLLAPSE AT ALL OR
PARTIALLY COLLAPSE
• OWNER CAUSED DELAYS WERE NOT ON CRITICAL PATH
• retrospective method also known as Collapsed As‐built (CAB)

• relies on a detailed reconstruction of the as‐built programme
• normally restricted to after‐the‐event analyses in forensic work
• does have a limited prospective capability (can be used to demonstrate the effect of a delay on the
completed part of an incomplete project)
• has been proven to be reliable in dispute resolution/ claims
• If done properly can demonstrates effect and cause/ takes account of concurrence
Strengths Weakness
• greatest strength for forensic work • complicated method hence, difficult to
is that it is fact based (based on as‐ execute and to explain
build) • difficult to establish a dynamic as‐built
• not reliant upon an schedule (as complicated to determine
as‐planned programme and model logic)
• requires detailed as‐build/
progress records
88
APPROACH – IMPACTED AS‐PLANNED (IAP)
Event
Claim
Event
Event
Event
Event
Event
10
DELAY ANALYSIS:IMPACTED AS PLANNED
►DELAYS ACCORDED BY CLIENT INSERTED IN BASELINE SCHEDULE AS NEW
ACTIVITIES OR DURATIONS AND LINKED TO AFFECTED ACTIVITIES AND
RESCHEDULING DONE, NEW FINISH LINE COMPARED WITH ORIGINAL TO
ASCERTAIN VARIANCE=EOT
• IDENTIFY BASELINE PGME

• IDENTIFY CRITICAL AND NEAR CRITICAL PATHS
• IDENTIFY ALL APPROVED EOTs AND QAUANTIFY THE DELAYS
• INSERT ACTIVITIES IN AS PLANNED SCHEDULE AND RESCHEDULE TO SEE
THE IMPACT OF NEW ACTIVITES
• MAKE CALCULATIONS AND JUDGEMENT OF DELAY RELATIVITY . COMPARE
AS PLANNED WITH IMPACTED SCHEDULE , VARIANCE =EOT
• CHECK IF DELAYS ON CRITICAL PATH
APPROACH – IMPACTED AS‐PLANNED (IAP)
• is a prospective methodology
• delay effect is measured by imposing events on a model of the original
programme (Baseline)
• does not rely on any actual progress that has been made
• requires a robust and reliable original programme that reflects the
indented sequence and the Scope of Work
Strengths Weakness
• relatively simple to carry out and • cannot be used for complex projects
to understand • used to quantify potential delays rather
• No as‐built required (likely choice and actual
when planned programme is • concurrent delays easily overlooked
available, no significant changes in • assumes that the baseline
the sequence during the project was achievable
execution, few delaying events, and • does not take actual progress/ resources
when there is little or no progress into account
records) • not reliable in dispute resolution
9
TIME IMPACT ANALYIS
• EFFECT OF DELAYS ON UPDATED AS PLANNED PGME BY IMPOSING DELAYS ONE BY ONE ON

UPDATED AS PLANNED SCHEDULE AND COMPARE WITH UPDATED AS PLANNED TO SEE THE
EEVENT EFFECT ON THE SCHEDULE , THEN IMPOSING THE NEXT AND REPEAT TILL ALL DELAYS
ARE IMPOSED.
APPROACH – TIME IMPACT ANALYSIS (TIA)
Date of Project
Event Completion
Activity 1 Delay to Project
Activity 2 Completion
Activity 3
Delay Event
Progress behind
on this activity. Delay to Project
Completion (2)
• Delay (1) caused by poor progress
• Delay (2) caused by event
• Claim = difference between D (1) and D (2)
94
APPROACH – TIME IMPACT ANALYSIS (TIA)
• prospective and dynamic method – but can be applied retrospectively

• takes account of progress and timing of delay events on the Works
• requires reliable as‐built data to update the programme (hence, if detailed and
regular progress data is not available then this method cannot be used)
• a reliable baseline programme is essential (ideally reflects the execution of the
planned project using sound construction logic)
• often undertaken in time slices (windows)
Strengths Weakness
• has a proven track‐record • time consuming (to determine the
in forensic application factual background and correct logic
• preferred method of the associated with progress records and
SCL Protocol delay events)
• based on a dynamic and • requires considerable degree of
changing critical path expertise and technical
• demonstrates cause and effect knowledge
• hence, difficult to communicate, highly
complex
95
Window Analysis Technique
Window analysis is a time impact technique which focus on the
impact of delays in specific periods of time , identifying gains or
losses ( delays and recovery ) to the actual critical and sub-critical
paths as they occur with each period of time.
The project life cycle is divided into a series of consecutive time

“Windows”.
Window Analysis Technique
- Each window is analyzed to identify the activities that were
impacted , delay or recovery and the results are investigated to
identify the events that caused the deviation in progress.
Window Technique – Analysis Steps
Step 1 : Incorporate delay events that have been occurred in the period
Step 2 : Establish the impact on time for Completion.

Window Technique – Analysis Steps
Step 3 : Update the impacted programme with progress with in the
window period.
Step 4 : Establish the impact on the Time for Completion.
D1 : Impact delay period due to “Employer Delay Events”

D2 : Impact delay period due to “Contactor Delays ” from the
update.
Longest Path Method
Longest Path method the analyst first establishes an as-built programme and
then ‘traces the longest continuous path backwards from the actual
completion date to determine the as-built critical path’. This ‘Longest Path’ is
thus the actual sequence of activities that caused completion to occur when it
did occur. It should be added to the definition that each successive activity on
the path is related to the prior activity either because the work had to be
completed in that order or because the contractor made them dependent
because of a common resource (such as an excavator or a formwork system).
The contractor plans to complete both buildings concurrently in the nine weeks allowed by the contract.
The contractor plans to use separate resources on each building so that at the start of the project there
are twin critical paths, one through each building.
Everything proceeds to programme during the first two weeks but at that point the architect
instructs a change that will delay building A by one week. This is reflected in the bar chart below
by the addition of the appropriate additional task. The effect is that planned completion has
been pushed out by the same week, building A is now the sole critical path for the remaining
work and building B has a week of float.
Everything then proceeds as planned until in week five an issue arises in building B that causes a delay of one week.
This time the cause is the responsibility of the contractor. The result, as illustrated below, is that planned
completion of both buildings is again on the same date, a week later than the due completion date.
Lastly, the architect instructs a second change, this time on building B, the effect of which is to delay the start
of the final fit-out activity by one week. As illustrated below, the final works in building B now form the sole
critical path and building B is expected to be completed two weeks late compared to one week in building A
If the ‘Longest Path’ method were now applied to the completed project, the analyst would determine that the
longest sequence of activities (or ‘as-built critical path’) was through building B. The delays that caused
building B to be completed two weeks late were the one week caused by the contractor and the one week
caused by the architect’s second instructed change. The contractor’s entitlement to extension of time would be
one week only of the two-week overall delay. It can be seen that although building A was perceived to be critical
after the first instructed change, when criticality later moved into building B, the prior history of building A
became irrelevant
Fragnet Example
Logic Connections
Fragnet
Before Rebar Shop Drawings Delay
(Original Schedule)
Act ID OD
Total Float
Early Start
Early Fin
Description
After Fragnet Showing Impact of Delay in Rebar
Shop Drawings
Act ID OD
Total Float
Early Start
Early Fin
Description
CONCURRENCY
CONCURRENCY
• TRUE CONCURRENCY AS DEFINED BY SCL PROTOCOL : TWO OR MORE EVENTS OCCURING AT
THE SAME TIME WHERE PARTIES TO THE CONTRACT ARE EACH RESPONSIBLE INDEPENDENTLY
FOR DIFFERENT EVENTS AND WITH EQUAL EFFECT ON CRITICAL PATH- RARE CASE.
• OTHER CASES
• DELAYS BY CONTRACTOR AND EMPLOYER OVERLAP
• EVENTS AT DIFFERENT TIMES BUT EFFECTS FELT AT SAME TIME
• IF EMPLOYER’S EVENT OCCURS AFTER COMMNENCEMENT OF CONTRACTOR’S DELAY UT
CONTINUES IN PARALLEL
• DELAY DUE TO EMPLOYER OCCURING DURING A PERIOD WHEN DELAY IS ALREADY OCCURING
FOR A CAUSE WHICH DOES NOT GIVE RISE TO ENTITLEMENT ,
HOW TO HANDLE CONCURRENCY?
•
CONCURRENCY
• BASED ON DELAY AFFECTING CRITICAL PATH

• CONTRACTOR ENTITLED TO FULL EOT FOR EMPLOYER’S DELAY – MITIGATION OF
CONTRACTOR’S DELAY-MALMAISON APPOACH
• DOMINANT CAUSE, EG, CONTRACTOR DELAY 21 JAN TO 25 FEB DUE TO LACK OF SKILLED
LABOUR, EMPLOYER ORDERS VARIATION –EFFECT 01-14 FEB (SEE EFFECT ON CRITICAL PATH)
• APPORTION RESPONSIBILTY
• DEGREE OF CULPABILTY IN EACH CASE OF DELAY
• SIGNIFICANCE OF EACH FACTOR CAUSING DELAY
• LENGTH OF DELAY CAUSED BY EACH CAUSATIVE EVENT
• WHICH IS MOST IMPORTANT?
• ‘BUT FOR’ TEST- BUT FOR EMPLOYER’S BREACH , WOULD THE CONTRACTOR HAVE SUFFERED
DELAY
• CYDEN HOMES - ANY DELAY CAUSED BY A RELEVANT EVENT WHICH IS CONCURRENT WITH
ANOTHER DELAY FOR WHICH THE CONTRACTOR IS RESPONSIBLE SHALL NOT BE TAKEN INTO
ACCOUNT.
EOT claims
Concurrent Delays
• Contractor’s material arrive 3 days late,
• Employer to issue drawings on 2nd day –delayed by 10 days late
• EOT?
• Common sense /apportionment approach- 8 days
• Dominant cause approach – 10 days
• But – For approach – 8 days
• Malmaison approach – 10 days
Concurrent delay:CPWD
5.3 In case the work is hindered by the Department or for any reason / event,
for which the Department is responsible, the authority as indicated in Schedule ‘F’
shall, if justified, give a fair and reasonable extension of time and reschedule the
mile stones for completion of work Such extension of time or rescheduling of
milestone/s shall be without prejudice to any other right or remedy of the parties
in contract or in law; provided further that for concurrent delays under this sub
clause and sub clause 5.2 to the extent the delay is covered under sub clause 5.2
the contractor shall be entitled to only extension of time and no damages.
MALMAISON APPROACH
THE MALMAISON APPROACH

“...IT IS AGREED THAT IF THERE ARE TWO CONCURRENT CAUSES OF DELAY, ONE
OF WHICH IS A RELEVANT EVENT, AND THE OTHER IS NOT, THEN THE
CONTRACTOR IS ENTITLED TO AN EXTENSION OF TIME FOR THE PERIOD
OF DELAY CAUSED BY THE RELEVANT EVENT NOTWITHSTANDING
THE CONCURRENT EFFECT OF THE OTHER EVENT.
• ENTITLES CONTRACTOR TO EXCUSABLE NON-COMPENSABLE DELAY

Exs on EOT Entitlement
, CONCURRENCY
COURT JUDGEMENTS ON CONCURRENCY

INDIA
• COURTS TAKE APPORTIONMENT APPROACH OR BUT FOR APPROACH
IRCON INTL LTD VS CR SON BUILDERS AND DEVELOPERS – DELHI HC FEB 2020
• CRS TO CONSTRUCT OFFICE BUILDINGG OF IRCON
• CRS- DELAY DUE TO LATE RECEIPT OF DRAWINGS WITHOUT STRUCTURAL
DETAILS
• IRCON – DELAY DUE TO EXECUTION BY CRS
• COURT JUDGMENT- “THIS IS A CASE WHICH IS NEITHER BLACK NOR WHITE AS
THE CLAIMANT AND RESPONDENT ARE BOTH RESPONSIBLE FOR DELAY IN
COMPLETION. IT IS DIFFICULT TO APPORTION EXACT AMOUNT OF DELAY ON
PART OF EACH OF THEM AND I ASSESS HALF THE DELAY ON PART OF EACH OF
THEM”
EFFECT OF EOT ON TIME BEING THE
ESSENCE OF THE PROJECT:INDIAN
CONTEXT
EOT:EFFECT ON TIME BEING ESSENCE OF PROJECT
Case Study - Hind Construction Company v The State of Maharashtra - Jan 1979(SCI)
The work pertains to construction of aqueduct over Alandi River in Nashik for an amount
of Rs 1,07,000.
Important dates pertaining to this work are-
Date of commencement(DOC) - 05 July 1955
Date of Completion(ODC) - 04 July 1956
Contract was rescinded on 27 Aug 56 at approximately 18 % progress without giving any
EOT or placing the contractor on compensation/LD for delay. The contractor’s requests for
EOT were rejected.
As per the contractor , causes of delay were - Heavy rainfall ,lack of proper road access to
site and improper rejection of “inferior goods” by the Govt Dept. The contractor argued
that Time was not the Essence of contract(despite the contract having these wordings) ,
Time fixation was only nominal and he had not abandoned the work and continued to
work even after ODC at his own risk.
The Hon’ble High Court and Supreme Court Gave the ruling that since the contract
contained clauses for extension and compensation/DD , Time was not of Essence . Time
could have been the Essence by giving EOT after considering contractor’s pleas and
specifying a fresh date for completion. The Court ruled that even if contractor’s reasons
for delay were incorrect or partly incorrect , he should have been give some reasonable
time for completion and then placed on compensation before rescinding the contract.
Inferences for Employer from these judgments

- All Employers state in their contracts that Time is of Essence and all have clauses for
Extension and levying compensation/LD .
- Courts are generally inclined to take the view that Time is not of Essence if the contract
has clauses for compensation and Extension and these clauses should first be exercised
before terminating a contract.
- EOT should be given with a clear fresh date of completion making Time the Essence.
- Repeated Extensions , other justified delays (such as site availability ) indicate that Time
is not of Essence.
- Contract can be rescinded on abandonment by the contractor.
- It will be preferable to place the contractor on DD till the time DD amount reaches the
peak(10% in most contracts) before terminating the contract(unless the contractor has
abandoned the work).
For Contractors
- Give timely notices for every delay attributable to the Employer/ Force majeure.
- Do NOT abandon and continue working even after being placed on LD/DD.
SCL DELAY AND DISRUPTION PROTOCOL
EOT:EFFECT ON TIME TERMINATION OF CONTRACT
WAIVER DOCTRINE – USA

DeVito v U.S 1969
Court ruled that the Govt may surrender its right to termination for default if it elects to
permit a delinquent contractor to continue to perform past the contract completion date
as long as the contractor has not abandoned the work and a reasonable time has elapsed
between default and termination
Hudson’s Building and Engineering Contracts

Where a party has stipulated LD and EOT , it has declared an intention that damages are
an adequate remedy and contract cannot be terminated only for delay
EOT:PREVENTION PRINCIPLE, TIME AT LARGE , CONCURRENCY
PREVENTION PRINCIPLE
PROMISEE CANNOT INSIST UPON PERFORMANCE OF OBLIGATION WHICH HE HAS PREVENTED

PROMISSOR FROM PERFORMING
APPLICABILTY TO CONSTRUCTION CONTRACTS
• EMPLOYER CANNOT HOLD CONTRACTOR TO A SPECIFIED COMPLETION DATE IF THE

EMPLOYER HAS ON HIS ACCOUNT/OMISSION PREVENTED THE CONTRACTOR FROM
COMPLETING N TIME.
• IN SUCH CASE TIME BECOMES “ÁT LARGE’’ AND CONTRACTOR AT LIBERTY TO COMPLETE IN
“REASONABLE”TIME
• EMPLOYER CANNOT LEVY LD ON CONTRACTOR
•
• BASED ON BRITISH CASE OF “HOLMES V GUPPY 1838”

• CONTRACTOR REQUIRED TO COMPLETE CARPENTARY WORK IN 4.5 MONTHS
• NO CLAUSE FOR EOT
• 4 MONTHS DELAY BY EMPLOYER IN HANDING OVER SITE
• “TIME AT LARGE” – EMPLOYER CANNOT IMPOSE LD, CONTRACTOR TO
COMPLETE WITHIN REASONABLE PERIOD
“ IF THE PARTY IS PREVENTED BY THE REFUSAL OF CONTRACTING PARTY FROM
COMPLETING THE CONTRACT IN TIME , HE IS NOT LIABLE IN LAW FOR THE DEFAULT.
..THE PLAINTIFFS WERE EXCUSED FROM PERFORMING THE AGREEMENT IN THE
ORIGINAL CONTRACT AMD THERE IS NOTHING TO SHOW THAT THEY ENETERED
INTO A NEW CONTRACT TO PERFORM THE WORK IN FOIR AND HALF MONTHS AT
LATER PERIOD. THE PLAINTIFFS WERE THEREFORE LEFT AT LARGE. CONSEQUENTLY
THEY ARE NOT TO FORFEIT ANYTHING FOR THE DELAY.
• EOT CLAUSES WERE INCORPORATED IN CONSTRUCTION CONTRACTS AFTER THIS!

• PROVISION OF EOT IN CONTRACT OBVIATES PREVENTION PRINCIPLE

• EOT IMPLIED – EVEN IF INSTRUCTION GIVEN DO NOT STRICTLY QUALIFY FOR EOT AS PER
CONTRACT CLAUSES , EOT MAY BE ACCORDED IF THESE LEAD TO DELAY
/DISRUPTION/VARIATION
• IF EOT PROVISION IS AMBIGUOUS IT SHOULD BE CONSTRUED TO BE IN FAVOR OF
CONTRACTOR
• IF EOT CLAUSE AMBIGUOUS AND IS INTERPRETED IN FAVOR OF CONTRACTOR, IT GOES
AGAINST THE CONTRACTOR TRYING TO ARGUE THAT TIME IS AT LARGE
• IF EOT APPLICABLE NOT GRANTED DUE TO FAILURE OF CONTRACTOR TO APPLY WITH
COMPULSORY NOTICES , TIME IS STILL NOT AT LARGE
• CONCURRENT DELAY MAKES PREVENTION PRINCIPLE AND TIME AT LARGE INAPPLICABLE
• HENCE TIME AT LARGE RARELY APPROVED BY COURTS
• IF MAIN CONTRACTOR HAS NOT BEEN ACCORDED EOT , IT SHOULD NOT AUTOMATICALLY
TRICKLE TO SUBCONTRACTORS
INDIAN CONTEXT
• CONTRACT DOES NOT HAVE PROVISION OF EOT
• EOT CLAUSE NOT EXERCISED DESPITE NO OF DELAYS DUE TO EMPLOYER
• NO DECISION GIVEN REGARDING EOT AFTER CONTRACT COMPLETION DATE
ANY EXAMPLE OF TIME AT LARGE?

Prolongation Claims
• Additional costs due to delay
• Should be Employer’s Risk Event
• Eg-
1.Employer orders stoppage of work due to safety violations by
contractor
2. Flooding due to heavy rains – stoppage of work
3. Employer does not give access to part site
• Contractor needs to prove he had resources ready to work
Prolongation Claims
• Direct costs- Work site and Field office
• Idle labour
• Idle machinery
• Site Office OHs
Indirect costs
• Increased duration of loan from bank
• Head office OHs
• Loss of opportunity
• Loss of profit
EOT:PROLONGATION CLAIMS
• AWARD OF EOT DOES NOT AUTOMATICALLY ENTITLE TO PROLONGATION COSTS

• STR FWD PROLONGATION COSTS
• STAFF AT SITE
• SECURITY AT SITE
• ELEC , WATER
• LABOUR CAMPS
• INSURANCES
• PLANT
• ESCALATION DUE TO INFLATION
• COST OF LABOUR DUE TO DELAY HIGHER IF DELAY AT END OF PROJECT
• COST OF PLANT HIGHER IF DELAY IN BEGINNING OF PROJECT
• IF TIME RELATED COSTS ON ASSOCIATED SUB-PROJECTS , EG, AIRFIELD PROJECT-
TAXIWAY, ROADS AND BRIDGES, BUILDINGS
• IF DELAY EFFECT ON ONE SUB PROJECT ON CRITICAL PATH – DELAY TO OVERALL
PROJECT
• IF OTHER SUB PROJECTS INDEPENDENT – PROLONGATION ONLY FOR ONE SUB
PROJECT
• PROBLEM –
IDENTIFICATION OF SEPARATE RESOURCES FROM CONTRACTOR’S ACCOUNTING SYSTEM –
MANY RESOURCES NOT CLEARLY IDENTIFIED TO INDL SUB PROJECT
EOT:PROLONGATION CLAIMS
APCHS TO PROBLEM OF SUBPROJECTS
• APCH 1- COSTS NOT POSITIVELY IDENTIFIED TO ANY SUBPROJECT INDEPENDENTLY

ALLOCATED 1/3 TO EACH
• APCH 2- ALLOCATE COSTS PRO RATA AFTER COMPARING SUB PROJECTS
• APCH 3- ONLY THOSE POSITIVELY CORRELATED TO SUB PROJECTS APPLICABLE FOR

PROLONGATION COSTS
• APCH 4- TREAT ALL TIME RELATED COSTS AS SITE ISSUES EXCEPT THOSE EXCLUSIVELY
RELATED TO INDIVIDUAL SUB PROJECTS
Workshop on Prolongation
costs
DISRUPTION
DISRUPTION
• LOSS OF PRODUCTIVITY TO CONTRACTOR’S NORMAL METHODS RESULTING IN LOWER

EFFICIENCY
• WHAT IS PRODUCTIVITY
• PRODUCTIVITY = PRODUCTION OUTPUT /RESOURCE INPUT

4m of 4” pipe /manhour
• PRODUCTIVITY RATIO= ACTUAL PRODUCTIVITY/PLANNED PRODUCTIVITY
3m per hr/4m per hr = 0.75
WHY IS PRODUCTIVITY IMP?

DISRUPTION
EXAMPLE
LABOUR - 40%
MATERIAL - 40%
INDIRECT COSTS - 10%
OH - 5%
PROFIT - 5%
TOTAL -100%
12.5% OVERRUN ON LABOUR COMPONENT

LABOUR - 45%
MATERIAL - 40%
INDIRECT COSTS - 10%
OH - 5%
PROFIT - ??
12.5% OVERRUN ON LABOUR CONTENT WIPES OUT ALL PROFIT
Productivity
Factors Affecting
• Labour characteristics
• Specific Project conditions
• Non-Productive activities
Productivity Rate and productivity Factor
Productivity rate is the number of labour hours per unit of work.
• Productivity rate = Labor hours

Quantity
Type of work—8" × 8" × 16" concrete masonry units (CMUs) Quantity of work—1,700 square feet
• Labor cost—6,987,000
• Labor hours—170 labor hours
• Productivity rate = 170 labor hours
1,700 sf
• Productivity rate = 0.1 labor hours per sf
• Labor hours = quantity takeoff × productivity rate

On many occasions, the project that is being bid deviates from these standard
conditions. Therefore, the number of labor hours needs to be modified to take into
consideration how the project that is being bid deviates from the standard
condition. This is done by using a productivity factor.
Adjusted labour hours = labour hours × productivity factor
When the conditions slow the progress of the work,
a productivity factor greater than one is used, thus increasing the number of
labour hours to complete a unit of work.
When the conditions increase the speed at which the work progresses,
a productivity factor less than one is used, thus decreasing the number of labour
hours to complete a unit of work.
Variables Impacting productivity Factor

• Availability and Productivity of Workers
• Climatic Conditions
• Overtime
• Other Considerations
Labour Productivity: Labour Hr Method
Type of work—8" × 8" × 16" concrete masonry units— decorative

Total work – 1000 sf
Historical productivity rate—0.1 labour hours per sf
Productivity factor—1.1
Crew—three masons and two helpers
Sixty percent (3/5) of the hours will be performed by masons and 40 percent (2/5) will be
performed by their helpers.
One labour hr costs Rs 100 and helper hour costs Rs 50. Calculate total cost
Labour Productivity
Type of work—8" × 8" × 16" concrete masonry units— decorative

Total work – 1000 sf
Historical productivity rate—0.1 labour hours per sf
Productivity factor—1.1
Crew—three masons and two helpers
Sixty percent (3/5) of the hours will be performed by masons and 40 percent (2/5) will be performed by their
helpers.
One labour hr costs Rs 100 and helper hour costs Rs 50. Calculate total cost
Labor hours =1,000 sf × 0.10 labor hours per sf Labor hours = 100 labor hours
Adjusted labor hours = 100 labor hours × 1.1
Adjusted labor hours = 110 labor hours
Mason labor hours = 0.60 × 110 labor hours Mason labor hours = 66 labor hours
Mason helper labor hours = 0.40 × 110 labor hours
Mason helper labor hours = 44 labor hours
Productivity: Cycle Time Analysis
• Another method of determining the productivity rate is cycle time analysis, which is used when the
work is performed in a repeatable cycle. An example of a cycle is a truck hauling earthen materials
from the borrow pit to the job site and returning to the borrow pit to make a second trip. Cycle time
analysis is used extensively in excavation estimating. Cycle time analysis is performed by timing a
number of cycles, ideally at least 30.
• Productivity rate = Average cycle time * productivity factor * crew size
System efficiency * quantity per cycle
• The crew size is the number of people in the crew and determines the number of labor
hours per clock hour.
The system efficiency takes into account that workers seldom work a full 60 minutes per hour.
Typical system efficiencies range from 30 to 50 minutes per hour. The quantity per cycle is the
number of units of work produced by one cycle.
Productivity: Cycle Time Analysis
• Type of work—hauling materials from the borrow pit Average cycle time—35
minutes
• Truck capacity—17 tons Crew—one driver Productivity factor—0.95
• System efficiency—45 minutes per hour
Productivity Rate:
• Productivity rate = 35 minutes * 0.95 * 1

45 minutes per hour * 17 tons
• Productivity rate = 0.0435 labor hours per ton

Equipment Productivity
Choices
• Rent or own
• Single project or multiple project
• Keep or sell
When estimating the productivity of different types of equipment
working together, the productivity of the lowest producing type of
equipment will establish the productivity of the group. For example, if
you have a front-end loader loading gravel at a rate of 75 cubic yards per
hour into three trucks that are hauling gravel at a rate of 20 cubic yards
per hour, the most you can haul in one hour is 60 cubic yards (3 trucks at
20 cubic yards per hour). In this case the production is established by the
trucks. If you increase the number of trucks to 4, the most you can haul
in one hour is 75 cubic yards, because the loader can only load 75 cubic
yard per hour. In this case the production is established by the loader.
When preparing equipment estimates, the estimator should look at
different equipment mixes to determine the most cost-effective mix. This
should include different number of units (such as 3 versus 4 trucks) and
different sizes of equipment (such as a small versus a large loader).
NUMBER OF TRUCKS
Determine the most cost-effective number of trucks to haul gravel.
Assumptions:
Loader production—75 cu m per hour Loader cost—12,500 per hour
Loader operator’s wages—Rs 300 per hour
Truck production—20 cu m per hour
Truck cost—6500 per hour
Truck driver’s wages—300 per hour
Should we use 3 trucks or 4 trucks?
3 trucks
Cost = 12500 per hour + 300 per hour + 3 × 6500 per hour + 3 × 300 per hour
Cost = per hour
Production = 3 × 20 cubic yards per hour Production = 60 cubic yards per hour
Cost = 33,200 per hour/60 cubic m Per hour
Cost = 553 per cubic m
4Trucks
Cost = 12500 per hour + 300 per hour + 4 × 6500 per hour + 4 × 30 per hour
Cost = 38920 per hour Production = 75 cu m per hour
Cost = $38920 per hour/75 cu m per hour
Cost = 518.93 per cubic m
Use 4 trucks
OPERATING COSTS
Fuel
A diesel engine will use between 0.25 litres of diesel per horsepower per hour when operating at full capacity.
When operating, the engine will probably operate at 80 percent of full capacity/80 percent of its available
power will be utilized. This is known as power utilization and reduces fuel consumption.
In addition, it will not be operated for the full hour.
Typically, equipment is operated between 30 and 50 minutes per hour. This is known as the system efficiency or
use factor and is expressed as a percentage of the hour that the equipment is operating. For example, 45
minutes per hour would be 75 percent (0.75) and 50 minutes per hour would be 83 percent (0.83).
Fuel cost = hp rating × power utilization × use factor × consumption rate × fuel cost .
What is the estimated fuel cost of a 120-horsepower loader? A job condition analysis indicates that the unit will
operate about 45 minutes per hour (75 percent) at about 70 percent of its rated horsepower.
OPERATING COSTS
Fuel
Fuel cost—Rs 90 per litre
Consumption rate—0.25 ltrs per hp per hour Power utilization—
70 percent
Use factor—75 percent
Fuel cost per hour = hp rating × power utilization × Use factor ×
Consumption rate × Fuel cost
Fuel cost per hour = 120 hp × 0.70 × 0.75 × 0.25 ltr per hp per
hour X 90 per litre
Fuel cost per hour = 1417.5 per hour
OPERATING COSTS
Lubs and Greases

A piece of equipment has its oil changed every 120 hours. It
requires six ltrs of oil for the change. The time required for
the oil change is estimated at 2.5 hours. At the beginning of
each eight- hour shift, a half-tube of grease is used to
lubricate the equipment. The labor costs associated with
the daily startup are factored into the equipment’s
productivity.
OPERATING COSTS
Lubs and Greases

Oil cost—630 per ltr
Filter—850 each
Oiler labor rate—400 per hour
Grease—800 per tube
OPERATING COSTS
Lubs and Greases
Oil cost—630 per ltr
Filter—850 each
Oiler labor rate—400 per hour
Grease—800 per tube
Lubrication cost = 6 ltrs. of oil × 630 per ltr.
Lubrication cost = 3780
Labor cost = 2.5 hours × 400 per labor hour
Labor cost =1000
Oil filter = 850
Total cost for oil change = 3780 + 1000 + 850
Total cost for oil change = 5630
Cost per hour = 5630/120 hours Cost per hour = 46.92 per hour
1/2 tube per shift Grease cost = 800 per tube × 8 hours per shift
Grease cost = 50 per hour
Lubrication cost = 46.92 per hour + 50 per hour
Net Lubrication cost = 96.92 per hour
Tyres
The cost of tires can be quite high on an hourly basis. The cost of tires, replacement, repair,
and depreciation should be figured .
Four tyres for a piece of equipment cost 500,000 and have a useful life of about 3,500 hours;
the average cost for repairs to the tyres is 15 percent of depreciation. What is the average
cost of the tyres per hour?
Tyre depreciation = 5,00,000/3,500 hours = 143 per hour
Tyre repair = 15% × 143 per hour = 21 per hour
Tyre cost = 143 per hour + 21 per hour
Tyre cost = 164 per hour
Depreciation and Interest
At a minimum, the interest rate should be the greater of the cost of financing or the interest that
they could have earned on the money had they invested it in another investment.
Use Time value of money concept
Annual costs = P(1+i)n i - Fi
(1+i)n -1 (1+i)n -1
Annual cost = annual cost of depreciation and interest
P = purchase price
F = salvage Value
i = interest rate
n = useful life
Use Time value of money concept
Annual costs = P(1+i)n i - Fi
(1+i)n -1 (1+i)n -1
Annual cost = annual cost of depreciation and interest
P = purchase price
F = salvage Value
i = interest rate
n = useful life
In Excel- PMT(Rate, Nper, Pv, Fv)
Where:
Rate = annual interest rate in decimal format (6% = 0.06)
Nper = useful life in years
Pv = purchase price (must be entered as a negative number)
Fv = salvage Value (must be entered as a positive number
If a piece of equipment had an original cost of 71,50,00, an anticipated salvage value of $10,00,000, and
an estimated life of five years, what would be the annual depreciation and interest cost at an interest
rate of 6 percent? The tires cost 4,00,000 and are included in the purchase price of 71,50,000
Deduct the cost of the tires from the purchase price:
P = 71,500,00 − 4,00,000 = 67,500,00
Annual cost = 67,50,000(1 + 0.06)5 0.06 − 10,00,000 × 0.06
(1 + 0.06)5−1 (1 + 0.06)5−1
Annual cost = 14,25,029
Taxes and Licensing
Insurance
Storage
Cost per hr -work out
DISRUPTION
• MOST STD FORMS OF CONTRACT DO NOT EXPRESSELY DEAL WITH
DISRUPTION
• FIDIC MENTIONS “DISRUPTION” ONLY IN TWO CLAUSES

• 1.9 – DELAYED ISSUE OF DRAWINGS
• CL 8.6- DELAYS CAUSED BY AUTHORITIES
• CHANGES CAUSE DISRUPTIONS
• METHODS OF QUANTIFYING LOST PRODUCTIVITY

• PROJECT PRACTICE BASED
• INDUSTRY BASED
• COST BASED METHODS
MEASURED MILE ANALYSIS
• COMPARES IDENITCAL TASKS IN IMPACTED AND NON

IMPACTED PERIODS OF PROJECT
• EXTRAPOLATION OF ACTUAL WORKS SPENT
• ACTUAL CONTRACT PERFORMANCE RATHER THAN INTITAL

ESTIMATE USED
•
• COMPARES ACUTAL PERFORMANCE ON SITE WITH ACTUAL
PERFORMANCE
MEASURED MILE ANALYSIS
Loss of productivity Claim
Week 1 2 3 4 5 6
Zone A(Mh) planned 2000 2000 2000
Zone A production (Ton) 10 10 10
Zone A productivity 200 200 200
Zone B(Mh) planned 2000 2000 2000
Zone B production (Ton) 10 10 10
Zone B productivity 200 200 200
Zone A performed(Mh) 2100 2000 2200
Zone A production Tons 10 10 10
Zone B Performed (Mh) 3000(site access 3000 (site access blocked 2800
blocked by by Employer) (Rainfall)
Employer)
Rate – Rs 120 per Mh

Example Measured Mile Calculation Comparison of Unit Cost for Impacted and
Non‐impacted Areas
The Contractor planned to perform all of the cross taxiway paving on an uninterrupted basis,
and to use paving machines for all of the concrete paving except for the fillet areas, which
were to be done by hand pours.
Because of the engineer's changes in the taxiway lighting and a requirement to put
pavement‐sensing devices in the concrete for a long‐range pavement wear study, the work on
the south taxiways was performed on a sporadic and intermittent basis. In fact, much of it
was performed on a hand basis rather than using the large concrete slip form paving spread.
This caused a substantially greater cost of performing the work on the south taxiways than
could be reasonably anticipated.
The work on the north taxiways was performed under normal conditions, since the changes
were all made prior to the start of work on the north taxiways and the pavement wear study
would not be conducted on the north taxiways. Runway's cost as a result of these changes can
be calculated by comparing the unit cost of labour for the north taxiways (which were
essentially non‐impacted) with the unit cost of labour for the south taxiways (which were
substantially impacted). Both the north and south taxiways were performed during normal
paving periods under good weather conditions. The same labour force and the same equipment
(with the exception that the slip form paving spread could not always be used due to the
change) was used on both areas. However, the unit labour cost on the north taxiways, which
were non‐impacted, was approximately half of the cost incurred on the south
EX: On the above information and the following simplistic analysis, the Contractor is
entitled to be paid --- in additional costs that it incurred, as illustrated in the following
formula:
Actual North Cross
Taxiway Production
Actual South Cross
Taxiway Production
Hours 10,116.00 51,969.00
Square Metres Produced 102,256.00 281,746.60
Calculate additional labour costs assuming per hour cost of labour is Rs 120
Crowding
Crowding
More workers in a given area

than can work efficiently.
Crowding
• Contractor has scheduled 3 activities concurrently in a given ltd area each employing 5 workers- max which can be
employed efficiently.
• Activity 1- 10 days
• Activity 2&3- 20 days each
• Variation ordered by Employer. Variation means additional activity of 5 days with 3 workers.
• 18 workers in an area which can employ 15.
• % crowding
• 3/15 = 20%
• See graph – 20% = 8% loss of efficiency
• Work to be done in 5 days will now be done in
• 5 x 1.08 = 5.4 days
• All 4 activities – 8% loss of efficiency = 0.4 days
• Wage of worker =Rs 600 per day
• Additional cost
• 600 x 18 x 0.4 = 4320
Disruption Claim
A construction company has contracted to execute block paving of total 4000 sqm . Per day
cost quoted by the company in BoQ of the tender is:
Labour Numbers Rate (Rs/Day)
Mason 6 600
Unskilled labour 10 400
JCB operator 1 800
Heavy duty driver 1 900
Plant
JCB 1 50,000
Tipper 1 20,000
Interlock cutter 1 25,000
Planned output per day - 100 sq m

Disruption Claim
Actual output and utilization done by the company in first 10 days without any hinderance is:
Labour Numbers Rate (Rs/Day)
Mason 4 600
Unskilled labour 6 400
JCB operator 1 800
Heavy duty driver 1 900
Plant
JCB 1 50,000
Tipper 1 10,000
Interlock cutter 1 25,000
Output per day achieved - 120 sq m
Remaining work period was interrupted intermittently due to various actions of the client due to which the
company could achieve output of 80 sq m per day average for the balance duration till completion of work.
Calculate the costs which can be claimed by the company:
A- based on measured mile analysis
B- based on BoQ rates
Disruption Claim : Solution
Planned Expenditure and Output
Labour Numbers Rate (Rs/Day) Total Cost per day (Rs)
Mason 6 600 3600
Unskilled labour 10 400 4000
JCB operator 1 800 800
Heavy duty driver 1 900 900
Total 9300
Plant
JCB 1 50,000 50,000
Tipper 1 20,000 20,000
Interlock cutter 1 25,000 25,000
Total 95000
G Total 104,300
Planned output per day = 100 sq m
Therefore, quoted BoQ rate as per contract = 104,300/100 = Rs 1043 per sqm
Disruption Claim Solution
Actual Expenditure and output

Labour Numbers Rate (Rs/Day) Total Cost/Day (Rs)
Mason 4 600 2400
Unskilled labour 6 400 2400
JCB operator 1 800 800
Heavy duty driver 1 900 900
Total 6500
Plant
JCB 1 50,000 50,000
Tipper 1 10,000 10,000
Interlock cutter 1 25,000 25,000
Total 85000
G Total 91,500
Workshop – Calculating Disruption Costs
Variation Claims
Variation Claims
• Additional item
• Substitute item
• Extra item
• Change in specifications
• Change in sequence
• Omissions
• Changes in law
• Changes in contract conditions
• Changes in working conditions
• Force Majeure/Neutral Events
• Any other instructions issued by Employer
Negative Variations
Results in decrease on price and /or Time

• Scope of work
• Restriction
• Lower specifications
• Different product
• Employer provides an item
Can you have negative variations for-

• More favorable weather conditions
• Better ground conditions
• Contractor completing project in less time than specified in contract
• Contractor using an alternative tech/methodology
Some contracts may entitle contract to loss of profit for negative variations
Nil Impact Variations
Should you submit a nil impact variation?
• Provides certainty to Employer

• Improves relations
Rate Variations
Submitting revised rate for an item

• Qty More than upper limit prescribed in contract
• Qty less than percentage prescribed in contract?
• Item to be installed in different manner
• Example
• Floor tiles changed to diagonal pattern – more cutting , more difficult for labour
Variation Claim
Example – Contractor has given rate of 2800 per m2 for formwork for retaining wall
Qty – 576m2 – 24 bays – 3 m high
Engineer issued variation order reducing retaining wall to 16 bays- 384 m2 after shuttering had been ordered but before
work commencement on retaining wall. Contractor informed Engineer that in pricing the item he had allowed for a
purpose built steel shutter 8x3 m at capital cost of 600000
Assume – 8% site OHs and 10% HOOH and Profit
BoQ rate- based on 576 m2 = 2800
Less 10% HOOH and profit =
(2800/110) X 100 = 2545
Less 8% site OH =
(2545/108) X 100 = 2356
Material – purpose built steel shutter – 600000 /576 =1042
Remaining costs – labour, plant, erection , cranage= 1314
Calculate per unit cost of variation
Variation costs
• Labour costs and labour associated costs

• Construction material costs
• Actual material
• Transportation
• Handling
• Storage
• Packaging
• Wastage
• Fixing
• Taxes
• Construction Equipment
• Hire/lease costs
• Mobilization and demobilization
• Insurance
• Fuel and lubricants
Variation costs
• Demolition
• Labour, machinery
• Loading and transportation
• Protection of nearby works
• Services
• Supervision and management costs
• Subcontractor and suppliers costs
• Additional drawings preparation and vetting costs
• Temporary works
• Additional security
Acceleration Claims
Acceleration
Where the contract provides for acceleration, payment for the acceleration should
be based on the terms of the contract. Where the contract does not provide for
acceleration but the Contractor and the Employer agree that accelerative
measures should be undertaken, the basis of payment should be agreed before the
acceleration is commenced. Contracting parties should seek to agree on the
records to be kept when acceleration measures are employed.
Where the Contractor is considering implementing acceleration measures to avoid

the risk of liquidated damages as a result of not receiving an EOT that it considers
is due, and then pursuing a constructive acceleration claim, the Contractor should
first take steps to have the dispute or difference about entitlement to an EOT
resolved in accordance with the contract dispute resolution provisions.
ACCELERATION
• EXECUTION OF PLANNED WORK IN SHORTER TIME OR EXECUTION OF
INCREASED SCOPE OF WORK IN SAME TIME
• CONSTRUCTIVE ACCELERATION – NEED TO SHOW ENTITLMENT TO EOT AND

OWNER REFUSAL
• CAUSATION BETWEEN CONTRACT BREACH /VARIATION AND NEED TO APPLY

ADDITIONAL RESOURCES
Acceleration Claims
• On Employer’s instructions
• Completing same work in shorter time
• Employer grants EOT and then asks contractor to complete in original
time period
• Contractor delayed due to Force majeure?
• Contractor delayed due to own fault?
• Employer refuses contractor’s requests for EOT?
Acceleration Claims
• Ensure new schedule is submitted and accepted by the Employer
• Failure to achieve new completion date may lead to LD even if the
project is completed before the original scheduled date of completion
• Submit both original and accelerated schedule
How is acceleration achieved?
• Working longer shifts
• Working on holidays
• Using more equipment
• Using better or larger equipment
• Changing construction methodology(eg use of precast components)
• More labour
• Different material- rapid hardening cement
Acceleration Claims
Cost to include
• Mobilization of additional equipment, people, transport, non-
productive time
• OHs for additional equipment and employees- shelters, garages,
lighting
• Overtime costs
• Loss of productivity due to
• Congested work areas
• Employees working longer shifts
• Disruption in continuity of work
• Additional costs to change methods of construction
• Subcontractor and supplier costs
• Additional supervision and management costs
Ex on Acceleration claim
Ex 2 : Acceleration Claim
A contractor is executing an excavation work. His quoted labour. His quoted labour and plant costs as per
tender are:
1. Skilled labour - Rs 800 per day
2. Unskilled labour - Rs 500 per day
3. Excavator (total cost including fuel and operator) - Rs 100,000 per day
4. Dumpers (total cost including fuel and operator) - Rs 50,000 per day
The contractor has employed 50 skilled and 100 unskilled labour, one excavator and two dumpers and
has excavated 10,000 cum in 10 days as per his contractual plan. On 10th day , the Employer orders him to
accelerate the work and achieve 25000 cum in next 15 days.
To achieve this, the contractor increases his resources to 100 skilled labour , 200 unskilled labour , two
excavators and 4 tippers per day. He also increases his supervision and administrative arrangement which
costs him additional Rs 50,000 per day.
Calculate the costs which can be claimed by the contractor.

Formulating Acceleration Clause
Consider:
 Do we really need an Acceleration clause? Can’ t we just achieve this through an amendment to contract
/Supplementary Agreement ?
 How much acceleration is actually feasible?
 Should Acceleration be applicable for only Extended periods (accounting for EOT) or on the Original period of the
contract also?
 What will be the correlation of Acceleration with the Bonus clause, which was also there in the contract?
 How will we value and ascertain the payment for the acceleration?
 What if we do not get willing acquiescence of the contractor for the acceleration?
 Should we instruct acceleration only if there is mutual consent of both parties or like a variation( contract has
only very limited rights to dissent)?
 Will we be able to measure, quantify and agree to additional costs beforehand?
 How can we assure the contractor that he is likely to get his additional costs due for acceleration?
 Will the contractor be subject to Liquidated Damages or will he get part acceleration costs or both in case he is
not able to achieve the full desired acceleration and complete by the revised date?
 In case there is a delay/disruption during the accelerated period due to neutral or Employer caused events, how
till that be quantified and what will be its interface with the accelerated period and acceleration being underway
by the contractor?
Consider:
 Do we really need an Acceleration clause? Can’ t we just achieve this through an amendment to contract
/Supplementary Agreement ?
 How much acceleration is actually feasible?
 Should Acceleration be applicable for only Extended periods (accounting for EOT) or on the Original period of the
contract also?
 What will be the correlation of Acceleration with the Bonus clause, which was also there in the contract?
 How will we value and ascertain the payment for the acceleration?
 What if we do not get willing acquiescence of the contractor for the acceleration?
 Should we instruct acceleration only if there is mutual consent of both parties or like a variation( contract has
only very limited rights to dissent)?
 Will we be able to measure, quantify and agree to additional costs beforehand?
 How can we assure the contractor that he is likely to get his additional costs due for acceleration?
 Will the contractor be subject to Liquidated Damages or will he get part acceleration costs or both in case he is
not able to achieve the full desired acceleration and complete by the revised date?
 In case there is a delay/disruption during the accelerated period due to neutral or Employer caused events, how
till that be quantified and what will be its interface with the accelerated period and acceleration being underway
by the contractor?
Std Acceleration Clauses
FIDIC
FIDIC 1999- Has no clause for acceleration
FIDIC 2017 in sub cl 8.7 last para mentions “ Sub cl 13.3.1(Variation by Instruction)
shall apply to revised methods including acceleration measures, instructed by the
Engineer to reduce(Excusable) delays from resulting from causes under sub cl 8.5
NEC
Either party may propose acceleration to achieve an earlier completion date. The
PM instructs the contractor submit quotations in either case to include changes in
key dates and associated additional costs (with justification). Based on the
quotation , the PM accepts the acceleration or the completion and key dates
remain unchanged.
Indian Contracts
Nil clause
Payment for Acceleration
1. Fixed lump sum payment (lump sum amount or percentage of contract value for
an agreed revise completion date. This payment may be conditional on completion
of deliverables by the revised dates and /or Liquidated Damages if the revised
completion dates are not met.
2. Payment of reasonable costs
Project Circumstances
• Completion period – 3 years
• Max Acceleration anticipated – 2 months
• Acceleration likely to be ordered only during final stages of project and under
extreme circumstances
• No time to have a mutually agreed costs before instructing acceleration.
• Contractor should have no apprehension to getting his dues.
• Part acceleration not acceptable since it will not be of any use to the Employer.
Frame a simple acceleration clause.

Claims for contractor termination
RECISSION/TERMINATION OF CONTRACT
39. Effect of refusal of party to perform promise wholly

When a party to a contract has refused to perform, or disabled himself from
performing, his promise in its entirety, the promisee may put an end to the
contract, unless he has signified, by words or conduct, his acquiescence in its
continuance.
WAIVER DOCTRINE – USA

DeVito v U.S 1969
Court ruled that the Govt may surrender its right to termination for default if it elects
to permit a delinquent contractor to continue to perform past the contract
completion date as long as the contractor has not abandoned the work and a
reasonable time has elapsed between default and termination
Hudson’s Building and Engineering Contracts

Where a party has stipulated LD and EOT , it has declared an intention that damages
are an adequate remedy and contract cannot be terminated only for delay
Termination Due to Contractor’s Fault
Employer’s Entitlement
• Encashment of Performance Guarantee
• Using Retention money of contractor
• Risk and Cost for completion of balance work
• Any losses and damages suffered by the Employer
• Delay damages
• Confiscation of contractor’s material and tools and plant at site
Termination for Convenience
When done:
• Employer no longer desirous of balance work
• Balance work incapable of execution
• Can the Employer do TFC anytime?
• What if Employer wants to execute balance work later on?
Termination for Convenience
Claim of Contractor
• Cost of works executed
• Any other cost or liability reasonably incurred in expectation of
completion of work
• Cost of removal and equipment and return to contractor’s ordinary
place of business
• Cost of repatriation of staff and labour
• Loss of profit?
Issues in TFC?
GLOBAL CLAIMS
GLOBAL CLAIMS
• Not possible/convenient for a contractor to particularise its assessment of claim

for EOT/recovery of addl costs as a result of delay /disruption. The contractor
claims net difference between actual and planned costs and allege that this was
caused due to cumulative effect of events for which the employer is liable
• Causal link to be demonstrated
• Example
• Out of 20 drawings 5 issued late- difficult to attribute loss to each individual
drawing
• Proof of causation mostly by inference
• Actual loss required to be demonstrated
• For global claim to succeed contractor must eliminate from the causes of his loss
and expense all matters that are not responsibility of employer
• Only in rare cases where financial consequences of various causes impossible to
distinguish. Quantify individually those items where causal link can be est
between employer risk event and costs claimed and claim compensation of
remainder as a whole.
• Will fail if part of loss shown to have been caused by factors for which employer
bears no responsibility.
• IPEX ITG PTY LTD V MELBOURNE WATER CORPN 2006 – CONTRACTOR CLAIMED DIFFERENCE
IN COST BETWEEN COST OF LABOUR AND QTY OF LABOUR AGREED TO BE PROVIDED. COURT
HED THAT THERE WAS NO EVIDENCE THAT THE WORK COULD HAVE BEEN CARRIED OUT BY
AGREED RESOURCES HAD THERE BEEN NO BREACH. NECESSAY TO DEMONSTRATE THAT
AGREED QTY OF RESOURCES REASONABLE TO ACHIEVE CONTRACT REQUIREMENTS
• JOHN DOYLE CONSTRCUTION V LAING MGMT 2004(SCOTLAND) – GLOBAL CLAIM FOR LATE
ISSUE OF DRAWING AND SNOW – CONCURRENT CLAIM- NOT ADMITTED – COURT DIRECTED
CONTRACTOR TO APPORTION DESPITE DIFFCULTIES
• IF THERE IS JUST ONE POSSIBLE CAUSE THAT IS NOT THE RESPONSIBILTY OF EMPLOYER , THE
CLAIM MUST FAIL.
• PROVE IT IS IMPOSSIBLE TO BRING CLAIM ANY OTHER WAY

Overheads
HOOH
Normal State Unabsorbed HOOH
Head Office Contribution from Projects

Head Office Overheads Contribution from Projects for Head Overheads for Head Office
(Expense) Office Overheads (Income) (Expense) Overheads (Income)
HOOH
• Executive and administrative salaries
• Legal and accounting expenses
• Head office rent and expenses
• Advertising
• Company insurance
• Recruiting costs
• Utilities, telephone, fax and computers
• Human relations costs
• Interest on company borrowings
• Travel for Head office staff
• Bad debt
• Depreciation of company assets
• Entertainment
• Professional fees
• Contributions
HOOH
Preliminaries
Site OHs
• Site accommodation;
• Site management staff;
• Site insurances;
• Materials handling;
• Site utilities
• Plant and small tools
• Temporary electrical supply;
• Scaffolding
• Stationary
• Office furniture;
HOOH
Prior to the application of a formula, the following have to be satisfied:
1) The loss in question must be proved to have occurred
2) The delay in question must be shown to have caused the Contracting Enterprise to
decline to take on other work which was available and which would have contributed to its
overhead recovery. Alternatively, it must have caused a reduction in the overhead recovery
in the relevant financial year and years which would have been earned by for that delay.
3) The delay must have had associated with it a commensurate increase in turnover and
recovery towards overheads (e.g. a variation).
4) The overheads must not have been ones which would have been incurred in any event
without the Contracting Enterprise achieving turnover to pay for them.
5) There must have been no change in the market affecting the possibility of earning profit
elsewhere here and an alternative market must have been available. Furthermore, there
must have been no means for the Contracting Enterprise to deploy its resources elsewhere
despite the delay. In other words, there must not have been a constraint in recovery of
overheads elsewhere.
HOOH
The Contractor should make all reasonable efforts to demonstrate through records the head office
overheads that it has failed to recover and the profit it has been deprived of earning. If it is not
otherwise feasible to quantify the unabsorbed overheads and lost profit, formula may be used (with
caution) to quantify unabsorbed overheads and lost profit once it has been successfully
demonstrated that overheads have remained unabsorbed and there is a lost opportunity to earn
profit as a result of an Employer Risk Event. The burden of proving that it has unabsorbed overheads
and lost profit always rests with the Contractor. A formula just serves as a tool for the quantification
of the loss.
If the Contractor intends to rely on the application of a formula for the assessment of lost profits
and unabsorbed head office overheads, it will first need to produce evidence that it was unable to
undertake other work that was available to it because of the Employer Delay. These records may
include the Contractor’s business plans prior to the Employer Delay, the Contractor’s [CE] tender
history and records of acceptance or rejection of tender opportunities depending upon resource
availability. Also relevant will be minutes of any meetings to review future tendering opportunities
and staff availability. The Contractor will also need to produce the records that support the inputs
into the formula used, in particular the Contractor’s company accounts for the periods immediately
preceding and succeeding the Employer Delay as well as for the period when the Employer Delay
occurred
HOOH
Hudson Formula
Planned HOOH including profits as % X (Original Contract sum/ original
Contract period) X Period of owner caused delay.
Emden Formula
(𝑂𝑣𝑒𝑟ℎ𝑒𝑎𝑑 𝑖𝑛𝑐𝑙. 𝑃𝑟𝑜𝑓𝑖𝑡: 𝐴𝑐𝑡𝑢𝑎𝑙 𝑃𝑒𝑟𝑖𝑜𝑑 /𝑇𝑜𝑡𝑎𝑙 𝐶𝑜𝑚𝑝𝑎𝑛𝑦 𝑅𝑒𝑣𝑒𝑛𝑢𝑒:
𝐴𝑐𝑡𝑢𝑎𝑙 𝑃𝑒𝑟𝑖𝑜𝑑) X (Original Contract sum /original contract duration) X
Period of owner caused delay
Eichlay Formula
((𝑃𝑟𝑜𝑗𝑒𝑐𝑡 𝐼𝑛𝑣𝑜𝑖𝑐𝑖𝑛𝑔: 𝐴𝑐𝑡𝑢𝑎𝑙 𝑃𝑒𝑟𝑖𝑜𝑑 /𝑇𝑜𝑡𝑎𝑙 𝐶𝑜𝑚𝑝𝑎𝑛𝑦 𝑅𝑒𝑣𝑒𝑛𝑢𝑒:
𝐴𝑐𝑡𝑢𝑎𝑙 𝑃𝑒𝑟𝑖𝑜d ) X 𝐶𝑜𝑚𝑝𝑎𝑛𝑦 𝑂𝑣𝑒𝑟ℎ𝑒𝑎𝑑𝑠: 𝐴𝑐𝑡𝑢𝑎𝑙 𝑃𝑒𝑟𝑖𝑜𝑑))/
𝐶𝑜𝑛𝑡𝑟𝑎𝑐𝑡 𝐷𝑢𝑟𝑎𝑡𝑖𝑜𝑛: 𝐴𝑐𝑡𝑢𝑎𝑙 𝑃𝑒𝑟𝑖𝑜𝑑 ) X period of owner caused delay
HOOH
Hudson Formula
Planned HOOH including profits as % X (Original Contract sum/ original
Contract period) X Period of owner caused delay.
Planned HOOH plus profit % X (original contract sum /Original contract
period) = Allocable OH per day
Allocable OH per day X period of Owner caused delay = HOOH (incl loss
of profit)
(original)
Eichleay
Hudson
Emden
Unit
Variable
Project Variables:
Original Contract Sum $ X X
Days
Original Contract Duration X X
Actual Contract Duration Days X
Employer Delay Event Duration Days X X X
Project Invoicing: Actual Period $ X
Project Invoicing: Delay Period $
Company Variables:
Total Company Revenue: Actual Period $ X X
Total Company Revenue: Original Period $
Company Overhead incl. Profit: Actual Period $ X
Company Overheads: Original Period $
Company Overheads: Actual $ X
Total Labour Cost: Actual Period $
Labour Costs: During Delay Period $
Planned Head Office Overheads incl. Profit as a %
% X
Project Variables:
Actual Period – the Original contract duration plus the delay period.
Delay Period – Any extensions of time the Contractor is entitled to.
Original Period – the original Contract period.

Original Contract Sum - Contract sum as defined within the conditions of
contract.
Original Contract Duration - Original contract duration as defined within the
conditions of contract.
Actual Contract Duration - The actual duration of the contract including the
original contract duration and any delays.
Employer Delay Event Duration - The duration of employer delay events only.
Project Invoicing: Actual Period - Value of progress valuations during the
actual contract duration.
Project Invoicing: Delay Period - Value of progress valuations during the
employer delay event period only
Company Variables:
Total Company Revenue: Actual Period - Total company revenue from
construction activities during the actual contract duration. This can be taken
as an average from audited accounts for a period immediately prior to the
Employer Risk Event.
Total Company Revenue: Original Period - Total company revenue from
construction activities during the original contract duration. This can be
taken as an average from audited accounts for a period immediately prior to
the Employer Risk Event.
Company Overhead incl. Profit: Actual Period - Total cost of running an office
including head office salaries, rent and the like during the actual contract
duration and including profit. This can be taken as an average from audited
accounts for a period immediately prior to the Employer Risk Event.
Company Overheads: Original Period - Total cost of running an office
including head office salaries, rent and the like during the original contract
duration. This can be taken as an average from audited accounts for a period
immediately prior to the Employer Risk Event.
Company Overheads: Actual - Total cost of running an office including head office salaries, rent
and the like during the actual contract duration. This can be taken as an average from audited
accounts for a period immediately prior to the Employer Risk Event.
Total Labour Cost: Actual Period - Labour costs during the actual contract period. This can be
taken as an average from audited accounts for a period immediately prior to the Employer Risk
Event.
Labour Costs: During Delay Period - Labour costs during the employer delay event period. This
can be taken as an average from audited accounts for a period immediately prior to the
Employer Risk Event.
Planned Head Office Overheads incl. Profit as a % - Percentage usually contained within the
contract for profit and overheads as it is planned by the Contractor.
Fair Annual Average Office Overheads incl. Profit as a % - An average derived from a series of
audited accounts over time, usually three years expressed as an average.
Normal Office Overheads % - Analysis of several years accounts to determine a normal
percentage of overheads in a Contractor's company.
Actual Office Overheads %: Delay Period - Analysis of the accounts to determine a percentage
of overheads in a Contractor's company during the employer delay event period. This can be
derived as an average from audited accounts for a period immediately prior to the Employer
Risk Event.
Actual Office Overheads % - Analysis of the accounts to determine a percentage of overheads
in a Contractor's company during actual contract duration. This can be derived as an average
from audited accounts for a period immediately prior to the Employer Risk Event.
ABC Construction, Inc. – Contract and Financial Data
Total Firm Revenue: Original Period 247,711,967
Total Firm Revenue: Actual Period 381,095,333
Total Labor Cost: Actual Period 137,194,333
Original Contract Value 68,500,000
Total Contract Value (before claim) 76,866,128
Billings: Original Period 69,753,854
Billings: Actual Period 76,866,128
Billings: Delay Period 7,112,274
Labor Costs: Delay Period 2,560,419
Company Overhead: Original Period 16,265,000
Company Overhead: Actual Period 28,918,417
Total Overhead & Profit: Actual Period 37,156,795
Planned Contract Duration 365 calendar days (cd’s)
Actual Duration 655 cd’s
Extended Duration 290 cd’s
Owner-caused Delay 235 cd’s
Planned Overhead & Profit % at Bid 7.0%
Normal Home Office Overhead % 4.5%
Actual Home Office Overhead % 5.3%
Actual Home Office Overhead %: Delay Period 6.1%
OVERVIEW :SCL PROTOCOL
CORE PRINCIPLES
1. PROGRAMME AND RECORDS
2. PURPOSE OF EOT
3. CONTRACTUAL PROCEDURAL REQUIREMENTS
4. DO NOT ‘WAIT AND SEE’ REGARDING IMPACT OF DELAY EVENTS
5. PROCEDURE FOR GRANTING EOT
6. EFFECT OF DELAY
7. INCREMENTAL REVIEW OF EOT
8. FLOAT AS IT RELATES TO TIME
9. IDENTIFICATION OF FLOAT
10. CONCURRENT DELAY- EFFECT ON ENTITLEMENT OF EOT
11. DELAY ANALYSIS
12. LINK BETWEEN EOT AND COMPENSATION
13. EARLY COMPLETION AS IT RELATES TO COMPENSATION
14. CONCURRENT DELAY – EFFECT ON ENTITLEMENT TO COMPENSATION FOR PROLONGATION
15. MITIGATION OF DELAY AND LOSS
16. ACCELERATION
17. GLOBAL CLAIMS
18. DISRUPTION CLAIMS
19. VALUATION OF VARIATIONS
20. BASIS OF CALCUATION OF COMPENSATION FOR PROLONGATION
21. RELEVANCE OF TENDER ALLOWANCE
22. PERIOD OF EVALUATION OF COMPENSATION
PROGRAMME AND RECORDS
1. Programme and records

Contracting parties should reach a clear agreement on the type of
records to be kept and allocate the necessary resources to meet that
agreement. Further, to assist in managing progress of the works and to
reduce the number of disputes relating to delay and disruption, the
Contractor should prepare and the CA should accept a properly
prepared programme showing the manner and sequence in which the
Contractor plans to carry out the works. The programme should be
updated to record actual progress, variations, changes of logic,
methods and sequences, mitigations or accelerations measures and
any EOTs granted. If this is done, then the programme can be more
easily used as a tool for managing change and determining EOTs and
periods of time for which compensation may be due.
2. Purpose of EOT
The benefit to the Contractor of an EOT is to relieve the Contractor of
liability for damages for delay (usually LDs) for any period prior to the
extended contract completion date and allows for reprogramming of the
works to completion. The benefit of an EOT for the Employer is that it
establishes a new contract completion date, prevents time for completion
of the works becoming ‘at large’ and allows for coordination / planning of
its own activities.
3. Contractual procedural requirements

The parties and the CA should comply with the contractual procedural
requirements relating to notices, particulars, substantiation and assessment
in relation to delay events
4. Do not ‘wait and see’ regarding impact of delay events
(contemporaneous analysis).The parties should attempt so far as possible to deal with the time
impact of Employer Risk Events as the work proceeds (both in terms of EOT and compensation).
Applications for an EOT should be made and dealt with as close in time as possible to the delay event
that gives rise to the application. A ‘wait and see’ approach to assessing EOT is discouraged. Where
the Contractor has complied with its contractual obligations regarding delay events and EOT
applications, the Contractor should not be prejudiced in any dispute with the Employer as a result of
the CA failing to assess EOT applications. EOT entitlement should be assessed by the CA within a
reasonable time after submission of an EOT application by the Contractor. The Contractor potentially
will be entitled to an EOT only for those events or causes of delay in respect of which the Employer
has assumed risk and responsibility (called in the Protocol Employer Risk Events) that impact the
critical path.
5. Procedure for granting EOT
Subject to the contract requirements, the EOT should be granted to the extent
that the Employer Risk Event is reasonably predicted to prevent the works being
completed by the then prevailing contract completion date. In general, this will be
where the Employer Risk Event impacts the critical path of the works and thus
extends the contract completion date. This assessment should be based upon an
appropriate delay analysis, the conclusions derived from which must be sound
from a common sense perspective. The goal of the EOT procedure is the
ascertainment of the appropriate contractual entitlement to an EOT; the analysis
should not start from a position of considering whether the Contractor needs an
EOT in order not to be liable for liquidated damages.
6. Effect of Delay
For an EOT to be granted, it is not necessary for the Employer Risk Event
already to have begun to affect the Contractor’s progress with the works,
or for the effect of the Employer Risk Event to have ended.
7. Incremental review of EOT

Where the full effect of an Employer Risk Event cannot be predicted with
certainty at the time of initial assessment by the CA, the CA should grant an EOT
for the then predictable effect. The EOT should be considered by the CA at
intervals as the actual impact of the Employer Risk Event unfolds and the EOT
increased (but not decreased, unless there are express contract terms
permitting this) if appropriate.
8. Float as it relates to time
Float values in a programme are an indication of the relative criticality of activities
and, generally, when float is exhausted, the completion date will be impacted.
Unless there is express provision to the contrary in the contract, where there is
remaining total float in the programme at the time of an Employer Risk Event, an
EOT should only be granted to the extent that the Employer Delay is predicted to
reduce to below zero the total float on the critical path affected by the Employer
Delay to Completion (i.e. if the Employer Delay is predicted to extend the critical
path to completion).
9. Identification of float
The identification of float is greatly assisted where there is a properly prepared
and regularly updated programme, the Accepted/Updated Programmes.
10. Concurrent delay – effect on entitlement to EOT
True concurrent delay is the occurrence of two or more delay events at the
same time, one an Employer Risk Event, the other a Contractor Risk Event,
and the effects of which are felt at the same time. For concurrent delay to
exist, each of the Employer Risk Event and the Contractor Risk Event must
be an effective cause of Delay to Completion (i.e. the delays must both
affect the critical path). Where Contractor Delay to Completion occurs or
has an effect concurrently with Employer Delay to Completion, the
Contractor’s concurrent delay should not reduce any EOT due.
11. Analysis time-distant from the delay event
Where an EOT application is assessed after completion of the works, or significantly after the
effect of an Employer Risk Event, then the prospective analysis of delay referred to in the
guidance to Core Principle 4 may no longer be appropriate.
12. Link between EOT and compensation

Entitlement to an EOT does not automatically lead to entitlement to compensation
(and vice versa).
13. Early completion as it relates to compensation
If as a result of an Employer Delay, the Contractor is prevented from completing the works by the
Contractor’s planned completion date (being a date earlier than the contract completion date), the
Contractor should in principle be entitled to be paid the costs directly caused by the Employer Delay,
notwithstanding that there is no delay to the contract completion date (and therefore no entitlement
to an EOT). However, this outcome will ensue only if at the time they enter into the
contract, the Employer is aware of the Contractor’s intention to complete the works prior to the
contract completion date, and that intention is realistic and achievable.
14. Concurrent delay – effect on entitlement to compensation for
prolongation
Where Employer Delay to Completion and Contractor Delay to Completion are concurrent and, as a
result of that delay the Contractor incurs additional costs, then the Contractor should only recover
compensation if it is able to separate the additional costs caused by the Employer Delay from those
caused by the Contractor Delay. If it would have incurred the additional costs in any event as a
result of Contractor Delay, the Contractor will not be entitled to recover those additional costs.
15. Mitigation of delay and mitigation of loss

The Contractor has a general duty to mitigate the effect on its works of Employer Risk Events. Subject to
express contract wording or agreement to the contrary, the duty to mitigate does not extend to requiring
the Contractor to add extra resources or to work outside its planned working hours.
The Contractor’s duty to mitigate its loss has two aspects: first, the Contractor must take reasonable
steps to minimise its loss; and secondly, the Contractor must not take unreasonable steps that increase
its loss.
16. Acceleration
Where the contract provides for acceleration, payment for the acceleration should be based on the
terms of the contract. Where the contract does not provide for acceleration but the Contractor and
the Employer agree that accelerative measures should be undertaken, the basis of payment should be
agreed before the acceleration is commenced. Contracting parties should seek to agree on the
records to be kept when acceleration measures are employed.
Where the Contractor is considering implementing acceleration measures to avoid the risk of
liquidated damages as a result of not receiving an EOT that it considers is due, and then pursuing a
constructive acceleration claim, the Contractor should first take steps to have the dispute or difference
about entitlement to an EOT resolved in accordance with the contract dispute resolution provisions.
17. Global claims
The not uncommon practice of contractors making composite or global claims
without attempting to substantiate cause and effect is discouraged by the Protocol,
despite an apparent trend for the courts to take a more lenient approach when
considering global claims.
18. Disruption claims

Compensation may be recovered for disruption only to the extent that the contract
permits or there is an available cause of action at law. The objective of a disruption
analysis is to demonstrate the loss of productivity and hence additional loss and
expense over and above that which would have been incurred were it not for the
disruption events for which the Employer is responsible.
19. Valuation of variations
Where practicable, the total likely effect of variations should be pre-agreed between the
Employer/CA and the Contractor to arrive at, if possible, a fixed price of a variation, to include not
only the direct costs (labour, plant and materials) but also the time-related and disruption costs, an
agreed EOT and the necessary revisions to the programme.
21. Relevance of tender allowances

The tender allowances have limited relevance to the evaluation of the cost of
prolongation and disruption caused by breach of contract or any other cause that
requires the evaluation of additional costs.
22. Period for evaluation of compensation
Once it is established that compensation for prolongation is due, the evaluation of the
sum due is made by reference to the period when the effect of the Employer Risk Event
was felt, not by reference to the extended period at the end of the contract.
Other Imp Legal Concepts
AMBIGUOUS CLAUSES
► CONTRA PROFERENTUM
• IF A CONTRACT TERM IS AMBIGUOUS , THE PREFERRED MEANING
SHOULD BE THE ONE THAT WORKS AGAINST THE PARTY WHO
DRAFTED THE CLAUSE.
EGS –
• “ENCUMBERENCE FREE SITE WILL BE HANDED OVER TO
CONNTRACTOR FOR COMMENCEMENT OF WORK BUT IN CASE
THERE IS DELAY IN HANDING OVER OF SITE/PART SITE THE
CONTRACTOR WILL HAVE NO CLAIM ON THIS ACCOUNT
WHATSOEVER”
Site Conditions
Contractor’s responsibility to satisfy itself about site data
All D-B-B contracts have a clause of contractor inspecting the site and satisfying himself to the site
data given by the Employer. FIDIC RB cl 4.10 states that to the extent practical… the contractor shall be
deemed to have inspected and examined the site, its surroundings and all available data and
information and satisfied itself to nature of site including subsurface conditions and hydrological
conditions.
Can this clause be used by the Employer to transfer some risk of site conditions to the contractor?
SPEARIN DOCTRINE
►United States v. Spearin, 248 U.S. 132 (1918), also referred to as the Spearin
doctrine, is a 1918 United States Supreme Court decision. It remains one of
the landmark construction law cases. The owner impliedly warrants the
information, plans and specifications which an owner provides to a general
contractor. The contractor will not be liable to the owner for loss or damage
which results solely from insufficiencies or defects in such information, plans
and specifications.
The Supreme Court wrote: "Where one agrees to do, for a fixed sum, a thing
possible to be performed, he will not be excused or become entitled to
additional compensation, because unforeseen difficulties are encountered.
Thus one who undertakes to erect a structure upon a particular site, assumes
ordinarily the risk of subsidence of the soil. But if the contractor is bound to
build according to plans and specifications prepared by the owner, the
contractor will not be responsible for the consequences of defects in the
plans and specifications. This responsibility of the owner is not overcome by
the usual clauses requiring builders to visit the site, to check the plans, and to
inform themselves of the requirements of the work...the contractor should be
relieved, if he was misled by erroneous statements in the specifications.
Site Conditions
Indian D-B-B contracts are less stringent towards contractor’s responsibility of
interpreting the site data and satisfying himself as compared to FIDIC. In Indian
contracts, this clause gen implies that contractor cannot claim for something that is
obvious to everyone at site stating that it was not included in the Employer’s site data.
This is reinforced by certain statements included in GCC of Indian contracts; for example,
CPWD GCC states “The contractor shall conform exactly, fully and faithfully to the design,
drawings and instructions in writing in respect of the work signed by the Engineer-in-
Charge”.
QUANTUM MERUIT
ICA CL70 - Obligation of person enjoying benefit of non-

gratuitous act
• Where a person lawfully does anything for another person, or

delivers anything to him, not intending to do so gratuitously, and
such another person enjoys the benefit thereof, the letter is
bound to make compensation to the former in respect of, or to
restore, the thing so done or delivered.
• Three Conditions
• Person should lawfully do something for another person
• He must not intend to act gratuitously
• Person to whom something is delivered must enjoy the
benefits
• Contractual relations do not exist

QUANTUM MERUIT
ICA CL70 - Obligation of person enjoying benefit of non-

gratuitous act
Where a person lawfully does anything for another person, or delivers

anything to him, not intending to do so gratuitously, and such
another person enjoys the benefit thereof, the letter is bound to make
compensation to the former in respect of, or to restore, the thing so
done or delivered.
EG – APCO TITAN V NHIDCL
NHIDCL CONCESSIONAIRE(SSTL)
EPC CONTRACTOR(ITNL)
CONSTRUCTION CONTRACTOR(APCO TITAN)

CONSEQUENTIAL LOSS
73. Compensation of loss or damage caused by breach of contract

When a contract has been broken, the party who suffers by such breach is
entitled to receive, form the party who has broken the contract, compensation
for any loss or damage caused to him thereby, which naturally arose in the
usual course of things from such breach, or which the parties knew, when they
made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss of
damage sustained by reason of the breach.
• Claim for loss of profit and opportunity

• Only if natural consequence of breach
• Foreseeable at time of entering into contract
PENALTY V LD V DD
74.Compensation of breach of contract where penalty stipulated for
When a contract has been broken, if a sum is named in the contract as the amount be
paid in case of such breach, or if the contract contains any other stipulation by way of
penalty, the party complaining of the breach is entitled, whether or not actual damage
or loss or proved to have been caused thereby, to receive from the party who has
broken the contract reasonable compensation not exceeding the amount so named or,
as the case may be, the penalty stipulated for.
• If penalty stipulated as a % or amount in contract, valid - if actual damage or

loss cannot be ascertained and reasonable
2
3
4
PROMISORY ESTOPPEL
The true principle of promissory estoppel is where one party has by his
words or conduct made to the other a clear and unequivocal promise
which is intended to create legal relations or effect a legal relationship to
arise in the future, knowing or intending that it would be acted upon by the
other party to whom the promise is made and it is in fact so acted upon by
the other party, the promise would be binding on the party making it and he
would not be entitled to go back upon it.
. The ingredients for the application of the doctrine are:

• That there was a representation or promise in regard to something to be
done in the future,
• That the representation or promise was intended to affect the legal
relationship of the parties and to be acted upon accordingly, and,
• That it is, one on which, the other side has, in fact, acted to its prejudice.
Claims
As per FIDIC
SC 1.1.6 Claim Definition 2017
“Claim” means
a request or assertion by one Party to the other Party for
an entitlement or relief under any Clause of these
Conditions or otherwise in connection with, or arising
out of, the Contract or the execution of the Works.
Timeline Contractor’s Claims
SC 20.1, 1999
Payment
NOD
Response Engineer’s Dispute
Notice Detailed
Event on the
of claim claim Determination to DB
principles
28 days
? ?
42 days 42 days
Timeline for Claims
SC 20.2, 2017
• If the claiming Party fails to give a Notice within 28 days, the other
Party shall be discharged from any liability!
• If the claiming Party fails to submit a statement of the legal basis of
the Claim, the Notice of Claim shall be deemed to have lapsed!
• If no NOD is given within 28 days, the Engineer’s determination
becomes final and binding!
• If the Dispute is not referred to the DAAB within 42 days, the NOD
shall be deemed to have lapsed! Dispute to
DAAB
Notice Detailed No Determi

Event of Claim Claim agreement nation NOD
28 days 42 days
84 days consultations 42 days 28 days
42 days
ADR Timelines
Payment
As DB decided
As agreed
As settled
Yes Yes
No
Referral DB Amicable
Satisfied NOD Arbitration
to DB decision settlement
?
84 days 28 days Minimum 56 days

2017: 28 days
SC Employer’s express Claim events under the Contract
4.19 Electricity, water and gas put at the disposal of the Contractor
4.20 E’s Equipment and free-issue materials used by the Contractor
7.5 Rejection of design, Plant, Materials, workmanship & retesting
7.6/11.4 Mobilizing another contractor to proceed with remedial work
8.6 Costs incurred by the E due to C’s revised methods
8.7 Failure to achieve Time for Completion (Delay damages due)
9.4 Failure to pass Tests on Completion (reduction of the C. Price)
11.3 Works /Section cannot be used for intended purposes (EoDNP)
Y/SB12.3 Retesting after Completion (costs incurred)
Y/SB12.4 Failure to pass Tests after Completion (performance damages)
13.7 Changes in the Laws of the Country reduce C’s Costs
15.4 Payment on termination (losses and damages)
18.1/2 Failure of C to effect insurance (cost of premiums when E pays)
E’s Claim Events – Third Party Claims
SC Employer’s Claim events under the Contract - indemnities

1.13 C’s failure to give all notices, pay all taxes etc. obtain permits
4.14 C’s interference with the convenience of the public or access
4.16 Damages, losses, expenses from the transport of Goods
17.1 Personal injury and certain damage to other property
17.5 Infringement of intellectual or industrial property
Claims for breach of Contract
A contract, such as FIDIC Contract, is under most jurisdictions, an

agreement giving rise to obligations which are enforced or
recognised by law.
When a contract obligation is not fulfilled by the Party which is obliged,
the innocent party can claim for damages if it can demonstrate that:
1. The Party in default actually breached a Contract obligation;
2. The innocent Party suffered from losses and/or damages; and
3. The losses and/or damages are caused by the
breach (causation link)
SC 2.5 Employer’s Claim Procedure
• If the Employer considers himself to be entitled to any payment under any

Clause of these Conditions or otherwise in connection with the Contract,
and/or to any extension of the DNP, the Employer or the Engineer
shall give notice and particulars to the Contractor.
• The notice shall be given as soon as practicable after the Employer
became aware or should have become aware, of the event or circumstances
giving rise to the claim.
• The particulars shall specify the Clause or other basis

of the claim, and shall include substantiation of the
amount and/or extension to which the Employer
considers himself to be entitled in connection with the
Contract.
• The Engineer/SB Employer shall then proceed in
accordance with SC 3.5 to agree or determine (i) the
amount (if any) which the Employer is entitled to be paid
by the Contractor, and/or (ii) the extension of the DNP
per SC 11.3.
• No time period is specified for notices relating to

payment, but the applicable Laws may do so.
• A notice relating to an extension must be given before
the relevant DNP expires.
• The notice shall be shall be listed in the progress report
under Sub-Clause 4.21(f).
• Pursuant to SC 1.3:
– The notice shall be given in writing
– when a notice is issued by the Engineer or the
Employer, a copy shall be sent to the other.
Employer’s Claim Procedure
SC 2.5
• This process applies each and every time the Employer

seeks payment from the Contractor and/or extension of
the DNP;
• Accordingly, applying delay damages under SC 8.7

straight away would be a breach of contract by the
Employer. Indeed an Employer’s claim under SC 2.5
ends in SC 3.5 – Determinations which allows for a
period of consultation in between the Parties where the
Contractor can raise objections/comments etc.
SC 20.1 2017 Claims
An Employer’s Claim may arise if the Employer considers to
be entitled to :
• Additional payment (or reduction of the Contract Price);
• An extension of the DNP;
• Another entitlement or relief against the Contractor.
 The starting point of the other Claims is not the event or
circumstance, but the disagreement between the Parties.
 The Notice only needs to be given as soon as practicable
from this point and contain details of the disagreement.
 The Notice is the only requirement for the Engineer to
issue its agreement or determination under SC 3.7.
SC 20.2 2017 Claim Procedure
• In all the 2017 Books, SC 20.2 requires the Employer to
adhere to a claims procedure for the additional payment
& extension of DNP, which is the same for the Contractor.
• It was considered that it is unfair to have different claim
procedures.
• The main Claims for additional payment and extension of
the DNP must follow a Claims procedure consisting of a
Notice of Claim, a fully detailed Claim, and the Engineer’s
agreement or determination (pursuant to SC 3.7).
• This has not changed from the 1999 edition, but the
details of this procedure have.
Notice of Claim Fully detailed Claim

Time As soon as practicable Within 84 days after
and within 28 days becoming aware (or
after becoming aware should have become
(or should have become aware) of the event or
aware) of the event or circumstance, or as
circumstance. agreed by the
Engineer./SB other Party
Notice of Claim Fully detailed Claim

Contents Written a. A detailed description of
description of the event/ circumstance
event or b. A statement of the
circumstance, contractual and/or other
expressly legal basis of the Claim.
identified as a c. Contemporary records
Notice. d. Detailed supporting
particulars
If the Party fails to serve either the Notice of Claim or the
contractual/legal basis in the fully detailed Claim within the
allotted time, the Notice will be deemed invalid and the
Claim is time-barred.
For the time-bar to bite, the Engineer must give Notice to
the claiming Party within 14 days of
(a) receiving the Party’s Notice or
(b) the lapse of the 84 days for the fully detailed Claim.
If the Engineer fails to give either Notice, the Party’s Notice
of Claim shall be deemed valid.
The other Party may, in turn, give a subsequent Notice
disagreeing with the deemed validity, in which case, the
Engineer shall review the issue in its determination.
SC 20.2
2017 Claim Procedure
More importantly, if the Engineer issues its Notice

deeming the Notice of Claim invalid, the claiming Party
may include in its fully detailed Claim details of its
disagreement or justification of the late submission.
Even if a 14-day Notice has been issued, the Engineer
shall nevertheless agree or determine the substance
of the Claim pursuant to Sub-Clause 3.7 and include a
determination on the validity of the Notice.
The 2017 edition has added a time-bar on the fully
detailed Claim but has tempered this with the opportunity
for the claiming Party to object to the time-bar.
The claiming Party can either argue that the Notice of Claim
or the fully detailed Claim were served within their time
limits or submit a justification for its delay.
The Engineer may consider prejudice to the other Party and
prior knowledge by the other Party.
However, considering that the content requirements for
either the Notice of Claim or the basis of the fully detailed
Claim are so simple, it is hard to think of a justifiable reason
why anyone would be late apart from the usual difficulty of
identifying the start of the period.
Contractor’s claims events in the FIDIC
forms
Legally, arguing for an Employer’s liability requires

demonstrating:
1. A breach of Employer’s obligation occurred, or the

occurrence of an event/circumstance for which the
Employer is contractually liable
2. That the breach/event caused damages to the

Contractor (causation link: breach – damages)
3. Proof of damages => contemporary records

SC Contractor’s express Claim events under the Contract
1.9 RB Delayed Drawings or instructions
1.9 Y/SB Error in E’s Requirements
2.1 E’s failure to give right of access to / possession of the Site
4.7 Errors in original set-out points and levels of reference
4.12R/YB Unforeseeable physical conditions
4.24 Archaeological (2017 – and geological) findings
7.4 Testing delayed by the E
8.4(a) Delay by a Variation (EOT not agreed under SC 13.3)
8.4(c)R/YB Exceptionally adverse climatic conditions
8.4(d)R/YB Unforeseeable shortage of personnel or Goods, caused by epidemic/
government actions
8.4(e) E’s delay, impediment or prevention
8.5 Unforeseeable delay caused by authorities
8.9 E’s instructions for suspension &/or resuming the work after
10.2 E’s taking over of a part of the Works
10.3 E delays a Test on Completion
11.8 Instruction to search for cause of defects not C’s responsibility
12.2Y/SB Delayed Tests after Completion
12.4RB Omitted item by Variation causes the C a loss
12.4Y/SB Delayed access for Tests after Completion
13.3 The Contract Price shall be adjusted as a result of a Variation
13.7 Changes in the Laws of the Country
14.8 Delayed payment
16.1 C suspends the Works or reduces the rate of work after notice
16.4 Termination (losses and damages)
17.4 Instruction to rectify loss/damage to Woks, Goods, C’s Docs
caused by E’s risk events
18.1 E fails to effect insurance for which E is the insuring party
1999 Exceptional Events, not limited to the following:
19.1 (a) war, hostilities, invasion, act of foreign enemies,
(18.1- (b) rebellion, terrorism, revolution,
2017 insurrection, military /usurped power, or civil war,
change (c) riot, commotion, disorder by persons other than the C's
in red) employees,
(d) strike or lockout not solely involving the C's Personnel and
other employees;
(e) munitions of war, explosive materials, ionising radiation or
contamination except as may be
attributable to the Contractor's use of such munitions, explosives,
radiation or radio-activity, and
(f) natural catastrophes such as earthquake, tsunami, volcanic
activity, hurricane or typhoon.
SC Contractor’s Claim events under the Contract - indemnities
1.13 E’s failure to obtain planning, zoning and other permissions specified to be
his obligation
4.2 Damages, losses & expenses resulting from a claim under the Performance
Security to the extent to which E was not entitled
17.1 Personal injury attributable to E’s negligence, wilful act or breach of

Contract
17.1 Injury/loss/damage to other property arising from E’s right the Permanent
18.3(d)(i) Works to be executed on/under/in the land
17.1 Damage to other property unavoidable result of the C’s obligations to
18.3(d)(ii) execute the Works and remedy the defects
17.1 Injury/losses/damages from E’s risk, except to the extent that cover is
18.3(d)(iii) available at commercially reasonable terms
17.5 Infringement of intellectual or industrial property
Contractor’s time/ money claim entitlement under the
Contract
Time and cost entitlements are subject to a procedure
laid down under SC 20.1, typical wording:
SC 2.1
“If the Contractor suffers delay and/or incurs Cost as a
result of a failure by the Employer to give any such right or
possession within such time, the Contractor shall give notice
to the Engineer and shall be entitled subject to Sub-Clause
20.1 [Contractor's Claims] to:
• an extension of time for any such delay, if completion is
or will be delayed, under Sub-Clause 8.4 [Extension of
Time for Completion], and
• payment of any such Cost plus reasonable profit, which
shall be included in the Contract Price.”
1999 SC 20.1 Contractor’s claim notice
“If the Contractor considers himself to be entitled to any

extension of the Time for Completion and/or any additional
payment, under any Clause of these Conditions or otherwise in
connection with the Contract, the Contractor shall give
notice to the Engineer, describing the event or
circumstance giving rise to the claim”
Notices are typically short:
 describing the event /circumstance giving rise to the claim;
 stating that the Contractor considers to be entitled to a
time and/or money remedy;
 And that a fully detailed claim is upcoming.
Generally, there is no need for this notice to indicate how

much extension of time and/or payment may be claimed, or
to state the Clause or other contractual basis of the claim
 Notices must comply with SC 1.3.
The notice is to be sent to the Engineer under R/YB (with
a copy to the Employer), or to the Employer under SB.
They are not required to respond, other than to
acknowledge receipt under SC 1.3(a).
Although the recipient of a notice may respond if he is
aware of factual errors in the notice, the absence of any
rebuttal should not be taken as any indication of agreement.
A notice submitted within the prescribed time is a
condition precedent for a Contractor’s claim!
“The notice shall be given 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.
If the Contractor fails to give notice of a claim within such
period of 28 days, the Time for Completion shall not be
extended, the Contractor shall not be entitled to additional
payment, and the Employer shall be discharged from all
liability in connection with the claim”
FIDIC Contracts Guide:
"… the Contractor shall give notice …": which is obligatory,
but a failure to notify may be due to him not having
suffered delay and not having incurred Cost”
1999 SC 20.1 Time Bar
SC 8.4 - “if completion is or will be delayed”: this suggests that

the extension of time can be claimed either when it is clear
that there will be delay (a prospective delay) or when the
delay has at least started to be incurred (a retrospective
delay).
• Onus is on the Employer to prove that a notice is issued
too late vs. the 28-day time bar under SC 20.1
• There is no form required for a SC 20.1 notice
“The claiming Party shall give a Notice to the Engineer (SB

other Party), describing the event or circumstance giving
rise to the cost, loss, delay or extension of DNP for which the
Claim is made as soon as practicable, and no later than 28
days after the claiming Party became aware, or should
have become aware, of the event or circumstance (the
“Notice of Claim” in these Conditions).
2017 SC 1.1.48
“Notice” means a written communication identified as a
Notice and issued in accordance with SC 1.3 [Notices and
Other Communications].
D1 Commencement
D20 Rocks encountered –

Unforeseeable, C manages
with own Personnel,
Equipment
D50 Rocky ground

conditions continue but now
more adverse
Time Bar Case Study
D70 C issues a notice of

claim
D20. Your claim is time barred. »
D75 Engineer rejects the

claim
Excavation works: Has the Contractor lost his entitlements?
« You have failed to notify within 28 days from

Time Bar Defences
The various possible timing of the «event or
circumstance giving rise to a claim». This can be when:
– an incident occurs
– an incident starts to generate effect
– The impacted works become critical
Completion
– the Contractor says he started to suffer from loss or damage.
 The equity doctrine of unjust enrichment for a Variation
The act of prevention principles - «one cannot benefit
from his own wrong»
 Legal / equity doctrines of estoppel or waiver.
Time Bar : Common Law
Is this Time Bar (Timely Notice as a Condition Precedent) desirable?
Under common law the aspect of timely notice as condition precedent is enforced and has found
favor(“Contractual terms requiring a contractor to give prompt notice of delay serve a valuable
purpose; such notice enables matters to be investigated while they are still current. Furthermore,
such notice sometimes gives the employer the opportunity to withdraw instructions when the
financial consequences become apparent.”-Justice Jackson-Multiplex Construction v Honeywell
Control Systems)
However, the aspect of time barring of claims due to late notice has to be construed liberally and
not rigidly against the contractor. (“no reason why this clause should be construed strictly against
the Contractor and can see reason why it should be construed reasonably broadly, given its serious
effect on what could otherwise be good claims for instance for breach of contract by the Employer;
Under sub cl 8.4 of FIDIC -The Contractor shall be entitled subject to Sub-Clause 20.1… to an
extension of the Time for Completion if and to the extent that the completion for the purposes of
Sub-Clause 10.1…is or will be delayed by any of the following causes… does not imply which ever is
the earliest ; the extension of time could be claimed either when it was clear that there will be
delay (a prospective delay) or alternatively when the delay has at least started to be incurred (a
retrospective delay)- Justice Akenhead - Obrascon Huarte Lain SA v Her Majesty’s Attorney General
for Gibraltar)
Time Bar : Indian Contracts
CPWD Item rate GCC- mentions the requirement of contractor giving
notice in two clauses –
1. For Extension of Time and
2. 2. For escalation of material.
However, there are no time limits and no procedures laid down. Hence
this is not a condition precedent to a claim.
Time Bar : Indian Contracts
NHAI EPC GCC-mentions the requirement of contractor giving notice only in few clauses –
1. When asking for EOT for completion. This requirement is given as condition precedent in that
in the event of contractor not giving notice within 15 days of his becoming aware or should
have become aware” of the event, he shall forfeit his claim for EOT and any associated claim in
connection with EOT.
2. Change in law-“If as a result of Change in Law, the Contractor suffers any additional costs in
the execution of the Works or in relation to the performance of its other obligations under this
Agreement, the Contractor shall, within 15 days from the date it becomes reasonably aware of
such addition in cost, notify the Authority of such additional cost due to Change in Law.”
However this is not a condition precedent in that the contractor does not lose his entitlement
to claim due to lack of delayed notice.
3. Force Majeure – In this clause the requirement of notice is given as condition precedent- “The
Affected Party shall not be entitled to any relief for or in respect of a Force Majeure Event
unless it shall have notified the other Party of the occurrence of the Force Majeure Event as
soon as reasonably practicable, and in any event no later than 10 (ten) days after the Affected
Party knew, or ought reasonably to have known, of its occurrence, and shall have given
particulars of the probable material effect that the Force Majeure Event is likely to have on the
performance of its obligations under this Agreement.”
4. Termination for Authority’s default”-Here again the notice is a condition precedent – “If the
contractor does not issue the Termination Notice on such 15th (fifteenth) day and prefers to
continue with the project, it is deemed that the cause of action of the Termination Notice has
been condoned by the Contractor and he would be deemed to have waived any claim and
forfeited any right to any other remedy on that count or in relation to such action or omission.
1999 SC 20.1 Fully detailed claim
Fully detailed claim within 42 days from claim

with all required
particulars/substantiation of:
 Contractual and/or legal grounds;
 Quantum – Cost, and possible profit, substantiation
based inter alia on contemporary records
 Extension of time – use of delay analysis techniques
(see SCL Delay & Disruption protocol and other
guidance documents).
1999 SC 20.1 Fully detailed claim
 If the Contractor fails to comply with this or another Sub-
Clause in relation to any claim, any extension of time
and/or additional payment shall take account of the
extent (if any) to which the failure has prevented or
prejudiced proper investigation of the claim, unless the
claim is time barred.
 CLAIM NOT TIME BARRED, BUT COULD BE REDUCED!
 Indeed the Employer could argue that had he been
aware of the claim magnitude within the prescribed 42
days, he could have taken earlier mitigation measures
hence avoiding a situation where he is «taken by
surprise» by a late Contractor’s claim;
 May be difficult for the Engineer after 8 months to check.
2017 SC 20.2.4 Fully detailed Claim
Fully detailed claim within:

 84 days after becoming aware (or should have become
aware) of the event or circumstance, or
 Such other period as may be proposed by the claiming
Party and agreed by the Engineer. (SB other Party)
New time bar: if the statement of contractual/ legal basis is
not submitted within the time limit:
 The Notice of Claim shall be deemed to have lapsed;
 The Engineer shall give a Notice accordingly within 14
days.
1999 SC 4.12
Additional Procedural
Requirements for Claims
Adverse physical condition encountered “The Contractor shall also submit any other
notices which are required by the Contract.”
Unforeseeable No No entitlement to Costs

per SC 1.1.6.8 and/or EoT
Yes
SC 4.12 notice
Contractor’s entitlement
Engineer’s Yes Variation Yes
for Cost, profit and/or
instruction? ? EoT through SC13.1/3
No
not enough
No
Contractor’s entitlement
Delay/ Yes SC 20.1 notice for Cost and/or EoT
Costs? through a SC 20.1 claim
No
1999 SC 20.1 Continuing Event
If the event or circumstance giving rise to the claim has a

continuing effect:
 the fully detailed claim shall be considered as interim;
 the Contractor shall send further interim claims at
monthly intervals, giving the accumulated delay
and/or amount claimed, and such further particulars
as the Engineer may reasonably require; and
 the Contractor shall send a final claim within 28 days
after the end of the effects resulting from the event
or circumstance, or within such other period as may be
proposed by the Contractor and approved by the
Engineer.
Legal Basis of Quantum
Hadley v Baxendale rule for the measure of damages in

contract has two limbs:
• to cover direct losses or damages (limb 1) but also
• indirect losses or damages which were reasonably
foreseeable by the Parties at the time of contract formation
(limb 2).
FIDIC Contracts: Quantum of
Damages
Entitlements for additional payment are expressly provided.

This, in conjunction with SC 17.6, will then define what is
owed to the Contractor hence is the contractually binding
reflection of the measure of damages principles at law.
Usual wording:
If and to the extent that the Contractor incurs Cost due to these
conditions (as a result of…), the Contractor shall be entitled
subject to Sub-Clause 20.1 [Contractor's Claims] to:
• payment of any such Cost (plus reasonable profit), which
shall be included in the Contract Price (SB added to the
Contract Price).
FIDIC Contracts: Quantum of
Damages
Entitlement to Cost only in case of “neutral” event

(physical conditions at Site, Force Majeure).
Entitlement to Cost and reasonable profit in case of

event directly attributable to the Employer.
FIDIC Contracts: Contractor’s Additional
Payment Entitlements
SC Heading Cost Reasonable

profit
1.9 Delayed Drawings or Instructions (RB) Yes Yes
1.9 Errors in Employer’s Requirements Yes Yes
(YB)
2.1 Right of access to the Site Yes Yes
4.6 Interfaces (dealt with as Variation) Yes Yes
4.7 Setting Out Yes Yes
4.12 Unforeseeable Physical Conditions Yes No
4.24 Fossils Yes No
7.4 Testing Yes Yes
8.9 Suspension Yes No????
FIDIC Contracts: Contractor’s Additional
Payment Entitlements
SC Heading Cost Reasonable
profit
10.2 Taking Over of Parts of the Works Yes Yes
10.3 Interference with Tests on Completion Yes Yes
11.8 Contractor to Search Yes Yes
12.3 Evaluation (measurement, Variations) Yes Yes
13.7 Adjustments for Changes in Legislation Yes No
16.1 Contractor’s Entitlement to Suspend Yes Yes
17.4 Consequences of Employer’s Risks Yes Yes (f) and g))
No (others)
19.4 Consequences of Force Majeure Yes No
FIDIC Contracts: Cost
1999 SC 1.1.4.3 (SB 1.1.4.2)

"Cost" means all expenditure reasonably incurred (or to
be incurred) by the Contractor, whether on or off the Site,
including overhead and similar charges, but does not
include profit.
2017 SC 1.1.19 (SB 1.1.16)
"Cost" means all expenditure reasonably incurred (or to
be incurred) by the Contractor in performing the Contract,
whether on or off the Site, including taxes, overheads and
similar charges, but does not include profit. Where the
Contractor is entitled under a SC of these Conditions to
payment of Cost, it shall be added to the Contract Price.
FIDIC Contracts: Cost and Profit
5% profit stated in the Pink Book
2017 SC 1.1.20 (SB 1.1.17)

"Cost Plus Profit" means Cost plus the applicable
percentage for profit stated in the Contract Data (if not
stated 5%).
Such percentage shall only be added to Cost, and Cost Plus
Profit shall only be added to the Contract Price, where the
Contractor is entitled under a SC of these Conditions to
payment of Cost Plus Profit.
Substantiation of Quantum
1999 SC 20.1
Unless and until the particulars supplied are sufficient to
substantiate the whole of the claim, the Contractor shall only
be entitled to payment for such part of the claim as he has
been able to substantiate.
2017 SC 20.2.3
Key role of contemporary records: “prepared or generated
at the same time, or immediately after, the event or
circumstance giving rise to the Claim”.
Parties should put themselves in the shoes of an arbitrator
or judge looking at the case after several years: their only
reliable supporting reference are the records.
Determinations in FIDIC Books
• There are over 20 Sub-Clauses in each of the FIDIC
forms which require the CA to proceed in accordance
with SC 3.5 (2017 SC 3.7) to agree or determine a matter.
• The majority require the CA to determine entitlements of
the Parties to recover cost and extensions of time (DNP).
• The most significant are SC 20.1 and 2.5 (20 2017) which
more generally govern claims and require the CA to
proceed in accordance with SC 3.5.
• Nevertheless, it is not only matters of cost and time
which require the application of SC 3.5. For example:
 SC 4.12 R/YB unforeseeability of physical conditions;
 Evaluation under SC 12.3 of the RB;
 SC 5.1 of YB whether an experienced contractor could
have discovered the error during tendering.
1999 SC 3.5 Determination Procedure
“Whenever these Conditions provide that the Engineer shall

proceed in accordance with this Sub-Clause 3.5 to agree or
determine any matter, the Engineer shall consult with each
Party in an endeavour to reach agreement. If agreement
is not achieved, the Engineer shall make a fair
determination in accordance with the Contract, taking due
regard of all relevant circumstances”.
This paragraph is almost identical in the Silver Book: in the

Silver Book, the words “the Engineer” are replaced by “the
Employer” and “each Party” by “the Contractor”.
1999 SC 3.5 Determination Procedure
First stage:
Consultation in an endeavour to achieve agreement
• No guidance or requirements as to how the CA to carry
out this duty of consultation, nor any express time limit
on this process (except in the MDB).
• The FIDIC Guide emphasises that the consultation
process should not be unlimited and that the CA is to
make a determination if “the agreement of both Parties
cannot be reached within a reasonable time”.
• The minimum of what is required from the CA is some
demonstrable action which seeks to engage both Parties
to consider the possibility of agreement.
• The steps required will depend on the facts.
• No duty on the Parties to reach an agreement.
1999 SC 3.5 Consultation Stage
The First stage of the SC 3.5 procedure is aiming to

prevent disputes:
• This express duty provides a useful reminder to the

Parties that agreement is the most desirable way of
resolving potentially contentious matters.
• If agreement is reached between the Parties, it must be

recorded in writing.
Consultation Stage
2017 SC 3.7.1 [Consultation to reach agreement]

The new SC is very detailed aiming to prevent disputes:
The Engineer has express duties to:
• act neutrally between the Parties;
• consult with both Parties jointly and/ or separately;
• encourage discussion between the Parties;
• give a Notice of agreement, if achieved, within 42 days;
• give a Notice if no agreement is achieved and proceed to
make a fair determination under SC 3.7.2.
1999 SC 3.5 Determination
The Second stage of the SC 3.5 procedure is the

determination required to be:
• Fair;
• In accordance with the Contract;
• Taking due regard of all relevant circumstances;
• Not unreasonably withheld or delayed pursuant to SC 1.3
Under the Pink Book the Engineer has to give notice within
28 days from the receipt of the claim or request.
No express sanction in the 1999 Books if the CA unduly

delays or fails to make a determination!
Determination
2017 SC 3.7.2 [Engineer’s Determination]

The SC 3.7.2 procedure requires the determination to
be:
• Fair;
• In accordance with the Contract;
• Taking due regard of all relevant circumstances;
• Within 42 days after the Notice that no agreement is
achieved or cannot be achieved within 42 days.
1999 SC 3.5
Giving Effect to Determination
Under the Red, Pink and Yellow Books the Parties are
required to give effect to any determination “unless and
until revised” under Clause 20 by the DB or in arbitration.
By contrast, in the Silver Book:
• the Parties are required to give effect to the agreement or
determination “unless the Contractor gives notice, to the
Employer, of his dissatisfaction with a determination
within 14 days of receiving it”.
• Once a notice of dissatisfaction is given under the Silver
Book, the obligation to give effect to any determination is
suspended pending dispute resolution.
• After receipt of the notice of dissatisfaction, either Party
may then refer the dispute to the DAB under SC 20.4.
2017 SC 3.7.4
Effect of Agreement / Determination
Each agreement or determination shall be binding on both

Parties unless and until:
• Corrected under this SC;
• In the case of determination revised by the DAAB/ in
arbitration
If within 14 days an error is found:
• By the Engineer: he advises the Parties;
• By a Party: it gives a Notice to the Engineer, if he
disagrees, advises the Parties.
• Within 7 days the Engineer shall give a Notice of the
corrected agreement/ determination.
2017 SC 3.7.5
Dissatisfaction with the
Engineer’s Determination
In case of dissatisfaction with a determination:

• The dissatisfied Party may give a NOD to the other Party
with a copy to the Engineer;
• The NOD shall state it is a “Notice of Dissatisfaction with
the Engineer’s Determination” and set out the reasons;
• The NOD shall be given within 28 days;
• Thereafter, either Party may proceed to the DAAB.
Dissatisfaction with Engineer’s
2017 SC 3.7.5 Determination
If no NOD is given, the determination shall be deemed to
have been accepted and shall be final and binding.
The dissatisfaction may be for part(s) of the determination

and the remainder shall become final and binding if no
NOD is given.
In case of failure of a Party to comply with an agreement or

final and binding determination, the failure may be
referred directly to arbitration.
Principle and Quantum Evaluating Claims
Options in case of a badly presented claim:

1.Reject the claim on the grounds that the claimant has not
proved his case with reasons.
2.Respond with a request for the claimant to provide
additional particulars.
3.Produce a determination that is based not only upon the
claim submission, but also on the Engineer’s own
knowledge of the matter and additional records available to
the Engineer.
Employer’s Specific Approval
Provisions may require the Engineer to obtain the specific
(written) approval of the Employer before granting to the
Contractor, for example an EoT or payment entitlements
that would increase the Contract Price.
Engineer to prepare and submit to the Employer his
assessment of the claim, requesting the Employer’s
written approval to render it as a determination.
Assessment to be submitted under a cover letter to the
Employer, with the cover letter copied to the Contractor
(but not including the assessment).
2017: no longer needed to ask the Employer’s consent!
Employer’s Specific Approval
If the Employer:
- declines approval, reasonable that the Contractor should
know that the Engineer is performing his obligations;
- grants approval, then Engineer should render the
determination to the Contractor, copied to the Employer.
If the Employer continues to decline approval, the Engineer

can:
- render a determination that the Employer does approve,
advising that it is an Employer’s determination; or
- advise the Contractor that he is unable to determine.
Contractor then seeks redress under Dispute Resolution.
Overall Sequence of
Ascertaining Contractor’s Claims
due to delays
Contractual Compliance
Step 1
© Hendrik F Prinsloo 298

Contractual Compliance FIDIC
Step 1

Is the Delay Excusable?
Step 2

Is the Delay Excusable?
FIDIC
Step 2

Is the Delay Critical?
Step 3

Is the Delay Critical?
Step 3

Is the Delay Compensable?
Step 4

Presentation of Claims
To be entitled to the claim, the contractor needs to demonstrate
• Work performed was different than the scope of original contract
• Employer was notified of the change
• The change was required or accepted by the Employer
• Contractor adopted mitigating measures
• Quantification of actual time and costs to the contractor
• Entitlement of these time and costs was there in the contract
Claim consists of two parts
• Narrative
• Details of the project
• Circumstances of the claim
• Effects of the claim
• Basis and ref to supporting documents
• Appendices and Annexures to support the claim
Key points to bear in mind while preparing a claim
• Make the reader’s job easy
• Ensure submission is a stand-alone document
• Assume that the reviewer has no previous knowledge of the project
or the circumstances
• Do not include irrelevant information
What should be included in a claim?
• Description of the event
• Cause of the event
• Date of the event
• Clause in Contract document relevant to the event
• Full impact of the event- Cost and time
• Steps taken to mitigate the event
• Supporting documents relevant to the claim
Example 1
Claim forwarded by contractor
“On 22 Feb 2021, The Engineer issued revised drawings to show an
additional staircase between ground floor and basement
This work constitutes a variation which has resulted in additional
concrete work , masonry, woodwork, steel work and decoration.
The additional price to which contractor is entitled is Rs 5,32,100”
Example 1
Qs
• How were the revised drawings issued?
• Which drawings were revised ?
• Why does this instruction constitute a variation?
• Why does this result in an entitlement to additional payment?
• How has the claimed sum been calculated?
• Did the contractor actually spend this amount?
Example 1
On 22 Feb 2021, The Engineer issued revised drawings to show an additional staircase between ground floor and
basement.
Subcl 3.3(Instructions of the Engineer)provides that the Engineer may issue modified drawings and subcl 13.1 (Right to
vary) provides that the Engineer may instruct a variation for additional work to be evaluated under cl12(Measurement
and Valuation). Examination of contract drawings shows that the staircase detailed on the revised drawings is additional
to the scope of work in the contract and this .constitutes a variation. The provision of staircase has resulted in additional
concrete work, masonry work, woodwork, steel work and decoration, the quantities of which are included at Appendix A.
The evaluation of the variation is included herewith at Appendix B alongwith supporting invoices of payment and
demonstrates that the entitlement of additional cost is Rs 532,100.
Exhibit 1- Drawing issue No---dated 22 Feb 2021
Exhibit 2- Drawing No A- GF -1101 Rev A
Exhibit 3- Drawing No A-B1-1101 Rev A
Exhibit 4- Extracts from Contract conditions sub cl 3.3
Exhibit 6- Extracts from contract conditions sub cl13.1
Exhibit 7- Extracts from contract conditions sub cl 12
Appendix A- BoQs of additional quantities
Appendix B – Pricing of variation with supporting invoices of payments .
Essential elements of a successful claim
CEES
• Cause
• Effect
• Entitlement
• Substantiation
• Employer entered into a contact with ABC construction company-contractor A- to construct a 20
residential villas
• Employer also entered a separate contract with another contractor B for infrastructure
development – drainage, substation, tele ducting, roads, pavements, landscaping
• Both contract running simultaneously –same Engineer/PM
• On 01 Jan 2021 , the infra contractor B excavated a trench for road Xg across road leading to 4
villas which prevented contractor A form accessing these villas.
• Infra contractor completed work and refilled trench on 09 Jan 2021.
• Contractor A considers that this delayed his work.
Cause
On 01 Jan 2021, the Employer’s contractor B excavated a trench across the road leading to villa Nos
1-4. The only access to these villas is through his road. Contractor B completed the work and access
was re-est on 09 Jan 2021
Effect
Time
• Delay due to changed or additional work
• Delay due timing of work
• Delay due to effect on programme
• Will delay effect completion date?
• Is mitigation possible?
• Does the event fall under contractual provisions which allow EOT?
Effect
Costs
• Prolongation
• Disruption
• Variation
• Method of adjustment of contract price-type of contract
• Mitigation
Effect
1. The road Xg restricted contractor’s access to 1-4 villas by preventing vehicles from reaching the villas to
deliver construction material necessary for progress of works.
2. The infrastructure contractor commenced excavation of the road crossing on 01 Jan 2021, which
effectively restricted access from this day. On this date, the progress of the individual dwellings was as
follows:
a. Villa No.1 — reinforcement to the raft foundation was in progress and due to be completed on 02 Jan
2021
b. Villa No.2 — ready for concrete to be poured to the raft foundation
c. Villa No.3 — blockwork to ground-floor external walls and partitions was in progress and due to be
completed on 03 Jan 2021
d. Villa No.4 —blockwork completed to ground floor. First- floor precast concrete flooring beams due for
delivery and placement on 01 Jan 2021
3. Progress to the affected dwellings was dependent on the delivery of ready-mixed concrete, concrete
blocks, cement, sand, precast concrete flooring beams and other materials to the working areas. No
other access route for such vehicles was available due to other activities and completed construction
works in this area of the site The effect of the excavation of the road crossing by the infrastructure
contractor B was to prevent deliveries from being made between the dates of 1 and 9 Jan 2021 and,
consequently, to suspend the construction activities until 10 Jan 2021, the day after the access was
reinstated.
Effect
4. This period of suspension had the effect of delaying the Time for Completion of the Works, and
this has been demonstrated by impacting the event on the individual activities on the current
baseline programme (included herein under Appendix A), in order to produce an impacted baseline
programme which is included herein under Appendix B.
I5. The effect on each dwelling is shown as follows:
a. Villa No 1
i. Progress on 01 Jan 2021: reinforcement to the raft foundation in progress and due to be
completed on 02 Jan 2021.
ii. The concrete gang can only complete one raft per day and Villa No 2 was programmed to start
prior to Villa No 1 . Thus, concreting to Villa No 2 took place on 10 Jan 2021 when the access was
reinstated. The gang followed on with Villa No 1 on 11 Jan 2021. Thus, the effect was to delay
concreting of the raft foundation from the planned date of 3 Jan to 11 Jan 2021, a delay of 8
calendar days.
iii. The effect on the overall programme has been demonstrated by impacting the baseline
programme as follows:
Effect
1. Activity: concrete to raft foundation
2.Activity start date deferred by 8 calendar days
b. Villa No 2
i. Progress on 01 Jan 2021: ready for concrète to poured to the raft foundation on that day.
ii. The effect was to delay concreting of the raft foundation from the planned date of 1 Jan to 10 Jan
2021, a delay of 9 calendar days.
programme as follows
1. Activity: concrète to raft foundation
2. Activity start date deferred by 9 calendar days
c. Villa No 3
i. Progress on 1 Jan 2021: blockwork to ground-floor external walls and partitions was in progress
and due be completed on 3 Jan 2021.
Effect
ii. The effect was to suspend progress on the ground-floor blockwork from 1 Jan to 10 Jan 2021 and thus prevent
completion until 12 Jan 2021- a delay of 9 calendar days
iii. The effect on the overall programme has been demonstrated by impacting the baseline programme as follows:
1. Activity: bIockwork to ground floor
2. Activity duration increased by 9 calendar days
d. Villa No 4
i. Progress on 1 Jan 2021 : blockwork completed to ground floor. First-floor precast concrète flooring beams due for
ii. The effect was to delay the installation of the first-floor precast concrète flooring from 1 Jan to 10 Jan 2021, a
delay of 9 calendar days.
ïïi. The effect on the overall programme has been demonstrated by impacting the baseline programme as follows:
1. Activity: PCC floorîog
6. Reference to the baseline programme included herein under Appendix A shows that this cluster of four dwellings
was last to be started and thus the last to be completed The effect of delay event therefore had a direct effect on the
Time Completion of the project. The impacted baseline program included herein under Appendix B demonstrate that
the effect on the individual activities of the affected dwellings has had overall effect of delaying the Time for
Completion by 9 day until 6 August 2021.
Entitlement
The Contractor's Entitlement
1. Extension to the Time for Completion
a. The Contractor’s entitlement to an extension to the Time for Completion is contained within the
provisions of Sub-Clause 8.4 [Extension of Time for Completion which, under subpara (e), provides
that an extension of time shall be given for delay caused by the Employer's other contractors on the
Site.
b. The event of the road closure by the infrastructure Contractor B, as described herein, clearly falls
under this provision as described herein, consequently; the Contract provides that the Contractor
shall be entitled to an extension of the Time for Completion if and to the extent that completion is
or will be delayed. The claim submitted herein contains the Contractors request for an extension of
Time for Completion for the nine days of delay demonstrated.
Entitlement
• The Contractor's Entitlement
Additional Payment
a. Sub-Clause 8.4 [Extension of Time for Completion] also contains a reference to Sub-Clause 20.1 (Contractor's Claims) which
provides that the Contractor may also claim additionaI payment for circumstances which cause an extension for the Time for
Completion to be awarded.
b. Due to the circumstances presented herein, the Contractor was obliged to remain on site for a period greater than
as originally intended and thereby incurred additional costs in maintaining his site establishment, providing finance for the
works and maintaining head-office overheads during the extended period. He was also prevented from earning a
contribution from other projects through having his resources tied up for the extended period.
c. The principles of recovery where one party to a contract has defauÎted are well established in law. Essentially, the
aggrieved party is entitled by an award of money to be put back in the position to which it would have been had the contract
been performed as originally envisaged.
d. Sub-Clause 20.1 [Contactor's Claim also provides that the Engineer is obliged to respond with approval, or with disapproval
and detailed comments to the submitted claim and subsequently that payment certificates shall include such amounts for
any claim that are due under the relevant provision of the Contract.
It is therefore the Contractor's further claim that due to the circumstances entitling him to an extension of the Time for
Completion of the Works, the Contractor is also entitled pursuant to both the Contract and to common law to additional
payment to recompense him for the costs incurred as a result of the additional time he has been obliged to remain on site.
The Contractor’s claim in this respect will be sub-mitted by way of a separate claim.
Entitlement
Additional Payment
3. Liquidated Damages or Penalties
a. The Employer has an entitlement to deduct penalties for late completion which is contained under Sub-Clause 8.7 (Delay
Damages]. This subclause, however, contains a reference to Sub-Clause 8.2 {Time for Completîon] which provides that the
Contractor shall complete the whole of the Works and each Section (if any) within the Time for Completion for the Works.
b. As has been examined earlier herein, the Time for Completion may, however, be extended under the provisions of Sub-
Clause 8.4 [Extension of Time for Completion) E and to the extent that completion is or will be delayed.
c. Thus, the entitlement of the Employer to the payment of delay damages is negated for any circumstances that entitle the
Contractor to an extension of the Time for Completion. As is demonstrated herein, the Contractor is entitled to
such an extension of time and therefore the Employer is not entitled to the payment of delay damages by the Contractor.
4. Conditions Precèdent to Entitlement
a. Sub-clause 20.1 [Contractor’s Claims) provides that the Contractor is obliged to give notice to the Engineer describing the
event or circumstance giving rise to the claim and that the notice shall be given 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.
b. lf the Contractor fails to give notice of a claim within 28 days, the Contractor is not entitled to additional time or payment,
and the Employer is discharged from all liability in connection with the claim.
c. This sub-clause also provides that, within 42 days after the Contractor became aware of the extent or circumstance giving
rise to the claim, or within such other period as may be proposed by the Contractor and approved by the Engineer, the
Contractor shall send to the Engineer a fully detailed claim which includes full supporting partîculars of the basis of the claim
and of the extension of time and/ or additional payment claimed.
Entitlement
Additional Payment
d. Thus, the requirement to give notice of entîtlement to an extension of time and
to describe the event giving rise to the claim within 28 days of the event is a
condition precedent to the contractor’s entitlement. The Contractor is also obliged
to submit a fully detailed claim of the extension of time claimed within 42 days of
the event.
e. The Contractor submitted a notice of claim on 15 Jan 2021 which is within the
28-day period prescribed in the Contract. The submission contained herein
comprises the detailed claim and supporting particulars. thereby satisfying the
provisions of this subcIause .The Contractor has therefore complied with the
conditions of this sub-clause and is consequently entitled to an extension of the
Time for Completion until 6 Aug 2021
Entitlement
Additional Payment
5.Conclusion
a. The following is a summary of the Contractor’s entitlement as discussed in this section:
i The contractor is entitled under the Contract to an extension to the Time for Completion for delay,
impediment or prévention caused by or attributable to Employer’s other contractors on the Site.
ii . Due to the circumstances entitling the Contractor to an extension of the Time for Completion, the
Contractor is also entitled, pursuant to both the Contract and the law, to additional payment for the costs
încurred as a result of the additional time he has been obliged to remain on site. The Contractor’s claim in
this respect will be submitted by way of a separate claim.
iii. The Employer is not entitled to the payment of delay damages by the contractor.
iv.The Contractor has complied with the conditions precedent to entitlement.
Substantiation
Cause
On 01 Jan 2021, the Employer’s contractor B excavated a trench across the road leading to villa Nos
1-4. The only access to these villas is through his road. Contractor B completed the work and access
was re-est on 09 Jan 2021. The contractor informed this in writing to the Engineer on 01 Jan 2021.
Photographs taken on same day are incl as Appx A and show the extent of infra work and restricted
access
It was recorded in site meeting on 10 Jan 21 that infra work has been completed and access is re-
est.
Effect
1. The road Xg restricted contractor’s access to 1-4 villas by preventing vehicles from reaching the villas to deliver
construction material necessary for progress of works. Appendix B shows the site plan which clearly shows that no
alternative access to these villas is possible. Photographs also show that construction of villas had commenced .
2. The infrastructure contractor commenced excavation of the road crossing on 01 Jan 2021, which effectively
restricted access from this day. On this date, the progress of the individual dwellings was as follows(also reflected in
daily site report of 01 Jan 2021 and photos in Appx A)
a. Villa No.1 — reinforcement to the raft foundation was in progress and due to be completed on 02 Jan 2021
b. Villa No.2 — ready for concrete to be poured to the raft foundation
c. Villa No.3 — blockwork to ground-floor external walls and partitions was in progress and due to be completed on
03 Jan 2021
d. Villa No.4 —blockwork completed to ground floor. First- floor precast concrete flooring beams due for delivery and
placement on 01 Jan 2021
3. Progress to the affected dwellings was dependent on the delivery of ready-mixed concrete, concrete blocks,
cement, sand, precast concrete flooring beams and other materials to the working areas. No other access route for
such vehicles was available due to other activities and completed construction works in this area of the site The effect
of the excavation of the road crossing by the infrastructure contractor B was to prevent deliveries from being made
between the dates of 1 and 9 Jan 2021 and, consequently, to suspend the construction activities until 10 Jan 2021,
the day after the access was reinstated. The daily site report of 09 Feb and photos in Appx C show progress of
affected villas when access was reinstated .
``
Effect
4. This period of suspension had the effect of delaying the Time for Completion of the Works, and
this has been demonstrated by impacting the event on the individual activities on the current
baseline programme (included herein under Appendix A), in order to produce an impacted baseline
programme which is included herein under Appendix B.
I5. The effect on each dwelling is shown as follows:
a. Villa No 1
i. Progress on 01 Jan 2021: reinforcement to the raft foundation in progress and due to be
completed on 02 Jan 2021.
ii. The concrete gang can only complete one raft per day and Villa No 2 was programmed to start
prior to Villa No 1 . Thus, concreting to Villa No 2 took place on 10 Jan 2021 when the access was
reinstated. The gang followed on with Villa No 1 on 11 Jan 2021. Thus, the effect was to delay
concreting of the raft foundation from the planned date of 3 Jan to 11 Jan 2021, a delay of 8
calendar days.
programme as follows:
Effect
2.Activity start date deferred by 8 calendar days
b. Villa No 2
i. Progress on 01 Jan 2021: ready for concrète to poured to the raft foundation on that day.
ii. The effect was to delay concreting of the raft foundation from the planned date of 1 Jan to 10 Jan
2021, a delay of 9 calendar days.
programme as follows
c. Villa No 3
i. Progress on 1 Jan 2021: blockwork to ground-floor external walls and partitions was in progress
and due be completed on 3 Jan 2021.
Effect
ii. The effect was to suspend progress on the ground-floor blockwork from 1 Jan to 10 Jan 2021 and thus prevent
completion until 12 Jan 2021- a delay of 9 calendar days
iii. The effect on the overall programme has been demonstrated by impacting the baseline programme as follows:
1. Activity: bIockwork to ground floor
2. Activity duration increased by 9 calendar days
d. Villa No 4
i. Progress on 1 Jan 2021 : blockwork completed to ground floor. First-floor precast concrète flooring beams due for
ii. The effect was to delay the installation of the first-floor precast concrète flooring from 1 Jan to 10 Jan 2021, a
delay of 9 calendar days.
ïïi. The effect on the overall programme has been demonstrated by impacting the baseline programme as follows:
1. Activity: PCC floorîog
6. Reference to the baseline programme included herein under Appendix D shows that this cluster of four dwellings
was last to be started and thus the last to be completed The effect of delay event therefore had a direct effect on the
Time Completion of the project. The impacted baseline program included herein under Appendix E demonstrate that
the effect on the individual activities of the affected dwellings has had overall effect of delaying the Time for
Completion by 9 day until 6 August 2021.
Entitlement
1. Extension to the Time for Completion
a. The Contractor’s entitlement to an extension to the Time for Completion is contained within
the provisions of Sub-Clause 8.4 [Extension of Time for Completion which, under subpara (e),
provides that an extension of time shall be given for delay caused by the Employer's other
contractors on the Site. Relevant extract of the para is given as under
“ --------”
b. The event of the road closure by the infrastructure Contractor B, as described herein, clearly falls
under this provision as described herein (delay caused by or attributable to Employer’s other
contractors on site) consequently; the Contract provides that the Contractor shall be entitled to an
extension of the Time for Completion if and to the extent that completion is or will be delayed. The
claim submitted herein contains the Contractors request for an extension of Time for Completion
for the nine days of delay demonstrated.
Entitlement
• The Contractor's Entitlement
Additional Payment
a. Sub-Clause 8.4 [Extension of Time for Completion] also contains a reference to Sub-Clause 20.1 (Contractor's Claims) which
provides that the Contractor may also claim additionaI payment for circumstances which cause an extension for the Time for
Completion to be awarded. Relevant extract of subcl 20.1 is reproduced-”If the contractor ….
b. Due to the circumstances presented herein, the Contractor was obliged to remain on site for a period greater than
as originally intended and thereby incurred additional costs in maintaining his site establishment, providing finance for the
works and maintainïng head-office overheads during the extended period. He was also prevented from earning a
contribution from other projects through having his resources tied up for the extended period.
c. The principles of recovery where one party to a contract has defauÎted are well established in law. Essentially, the
aggrieved party is entitled by an award of money to be put back in the position to which it would have been had the contract
been performed as originally envisaged.
d. Sub-Clause 20.1 [Contactor's Claim also provides that the Engineer is obliged to respond with approval, or with disapproval
and detailed comments to the submitted claim and subsequently that payment certificates shall include such amounts for
any claim that are due under the relevant provision of the Contract.
It is therefore the Contractor's further claim that due to the circumstances entitling him to an extension of the Time for
Completion of the Works, the Contractor is also entitled pursuant to both the Contract and to common law to additional
payment to recompense him for the costs incurred as a result of the additional time he has been obliged to remain on site.
The Contractor’s claim in this respect will be sub-mitted by way of a separate claim.
Entitlement
Additional Payment
3. Liquidated Damages or Penalties
a. The Employer has an entitlement to deduct penalties for late completion which is contained under Sub-Clause 8.7 (Delay Damages]._
reproduced below- “…This subclause, however, contains a reference to Sub-Clause 8.2 {Time for Completîon] “reproduced below “… which
provides that the Contractor shall complete the whole of the Works and each Section (if any) within the Time for Completion for the Works.
b. As has been examined earlier herein, the Time for Completion may, however, be extended under the provisions of Sub- Clause 8.4
[Extension of Time for Completion) ïf and to the extent that completion is or will be delayed. Extract of subcl 8.4 is reproduced “…
c. Thus, the entitlement of the Employer to the payment of delay damages is negated for any circumstances that entitle the Contractor to an
extension of the Time for Completion. As is demonstrated herein, the Contractor is entitled to such an extension of time and therefore the
Employer is not entitled to the payment of delay damages by the Contractor.
4. Conditions Precèdent to Entitlement
a. Sub-clause 20.1 [Contractor’s Claims) provides that the Contractor is obliged to give notice to the Engineer describing the event or
circumstance giving rise to the claim and that the notice shall be given 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.
b. lf the Contractor fails to give notice of a claim within 28 days, the Contractor is not entitled to additional time or payment, and the Employer
is discharged from all liability in connection with the claim.
c. This sub-clause also provides that, within 42 days after the Contractor became aware of the extent or circumstance giving rise to the claim,
or within such other period as may be proposed by the Contractor and approved by the Engineer, the Contractor shall send to the Engineer a
fully detailed claim which includes full supporting partîculars of the basis of the claim and of the extension of time and/ or additional payment
claimed. “Relevant extract of sub cl 20.1 is reproduced – “…”
Entitlement
Additional Payment
d. Thus, the requirement to give notice of entîtlement to an extension of time and
to describe the event giving rise to the claim within 28 days of the event is a
condition precedent to the contractor’s entitlement. The Contractor is also obliged
to submit a fully detailed claim of the extension of time claimed within 42 days of
the event.
e. The Contractor submitted a notice of claim on 15 Jan 2021 which is within the
28-day period prescribed in the Contract. The submission contained herein
comprises the detailed claim and supporting particulars. thereby satisfying the
provisions of this subcIause .The Contractor has therefore complied with the
conditions of this sub-clause and is consequently entitled to an extension of the
Time for Completion until 6 Aug 2021
Essential
Entitlement
elements of a successful claim
Additional Payment
5.Conclusion
a. The following is a summary of the Contractor’s entitlement as discussed in this section:
i The contractor is entitled under the Contract to an extension to the Time for Completion for delay,
impediment or prévention caused by or attributable to Employer’s other contractors on the Site.
ii . Due to the circumstances entitling the Contractor to an extension of the Time for Completion, the
Contractor is also entitled, pursuant to both the Contract and the law, to additional payment for the costs
încurred as a result of the additional time he has been obliged to remain on site. The Contractor’s claim in
this respect will be submitted by way of a separate claim.
iii. The Employer is not entitled to the payment of delay damages by the contractor.
iv.T he Contractor has complied with the conditions precedent to entitlement.
Exhibits
1.ABC company letter ref ….dt 01 Jan 2021.
2.Site meeting mins -10 Jan 21
3. Daily site report -01 Jan 21
4. Daily site report 09 Feb 21
5. ABC company letter ref ..dt 15 Jan 21
Detailed Claim- Full Contents
1. Front Cover
2. Executive Summary
3. Statement of Claim
4. Definitions, Abbreviations and Clarifications
5. The Contract Particulars
6. The Method of Delay Analysis
7. Details of the Claim for an Extension of the Time for Completion
8. Details of the Claim for Additional Payment
9. Appendices
a. Appendix A — Exhibits
b. Appendix B — Baseline Programme
c. Appendix C — Impacted As-Planned Programme
d. Appendix D — Cost Calculations
e. Appendix E — Supporting Information for the Cost Calculations
Assignment: Claims
• Contract for Construction of Plant and associated infra
• Contract Value- Rs 29.37 cr
• Original Contract duration- 250 days
• DLP – 12 months
• Type of Contract- Fixed Item rate- No escalation clause. Quoted rates applicable for extended
duration for actual quantities executed which may be different than BoQ
• Interim Bill – Monthly or when value of work -15% whichever is earlier. Payment within 10 days
• Retention – 10% from Running bill subject to max 5% of contract value with 50% return on
Practical completion
• PG – return after DLP
• Contractor entitled to suspend work for beaches of owner in payments
• Concurrent delay- no EOT or additional costs
• Virtual Completion only on Completion of all work as per contract. If owner takes over part of
work for handing over to finishing contractor or any other agency, such part is not deemed to be
virtually complete
Assignment: Claims
Delays
• Commencement date- 25 Jan 2021
• Contractor’s mob completed – 09 Feb 2021
• Work commencement not possible due to EC
• 15 Apr 21- Only bdy wall work released
• 07 Jun 21- Remaining work commenced after EC but monsoon season
started(Pile fdn)
• Sep 21- Work again stopped due to EC
• Additional scope Nov 21 to Apr 22
• Mezanine floor within factory
• Control room within factory
• Substation changed from PEB to RCC
Assignment: Claims
Delays
• Commencement date- 25 Jan 2021
• ODC – 31 Oct 21
• Contractor’s mob completed – 09 Feb 2021
• Work commencement not possible due to EC
• 15 Apr 21- Only bdy wall work released
• 07 Jun 21- Remaining work commenced after EC but monsoon season started(Pile fdn)
• Sep 21- Work again stopped due to EC
• Additional scope Nov 21 to Apr 22
• Mezanine floor within factory
• Control room within factory
• Substation changed from PEB to RCC
• Two EOTs granted
• EOT 1- 31 Oct 22
• EOT 2- 31 mar 23
Assignment: Claims
• Plant started operating – 15 Feb 23
• Remaining misc works completed by May 23 due to high prices of
mtrl and lab costs
• Employer withheld retention money and deducted LD of Rs 35 lakhs
• H/T over of other structures and Defect rectification in progress
Assignment: Claims
Claims?
Query 1
1) Should a second Arbitral Tribunal entertain a plea of Claimant Contractor to re-
adjucate an already adjudicated dispute (entitlement to a claim) by an earlier
Tribunal whose award is challenged in high court/supreme court and yet to take
finality? Case laws? (More details in next para)
2) In first set of claims, claimant sought adjudication on 'entitlement to a set of

claims' (accumulated upto the period 2013). While the proceedings before the 1st
Tribunal were underway, the claimant raised 2nd set of claims which were
essentially on the same claims as in 1st set but for further period and referred the
same to a different/second Tribunal specifically declaring that the claims are for
only quantification as the issue of 'Entitlement' has already been referred to the
first Tribunal. However, after the award on 'entitlement' was announced by the 1st
Tribunal and after the pleadings in the 2nd set of claims were over, the claimant
sought to amend his 2nd set of claim petition to incorporate a plea on re-
adjudication on the issue of 'Entitlement' and withdraw his earlier declaration that
the issue of entitlement was referred to the 1st Tribunal. Despite protest, the 2nd
Tribunal allowed the Claimant to carry out the said amendments and hearing on
the same are underway. What could be the best stand/line of argument by the
Respondent? Any specific inputs/comments/recent rulings on such matters?
Query 1
Can multiple arbitrations take place for same contract ?
• Yes
Can same claim be partly referred to one arbitration and partly to another?
• No. All disputes should be referred to 1st arbitration which was constituted
upto that period.(unless new dispute of that period has come to light now)
• Order II Rule 2, which deals with the relinquishment of part of claim, reads
thus: Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect
of the portion so omitted or relinquished. This is applicable to Arbitration
proceedings also.
Query 1
Can multiple arbitrations take place for same contract by the same
tribunal?
• Yes
Unless valid reasons exist – all disputes in one contract should be
handled by Same Tribunal through multiple Arbitration proceedings.
Parties while filing application under Sec 9 /34 should disclose
pendency of any application /petition for the same contract.
In case multiple arbitration are underway in a contract, findings of one
arbitration should be based on merits of that case only upto the date
when it was announced and not based on findings of second ref.
Query 1
Can multiple arbitrations take place for same contract by the same
tribunal?
• Yes
Unless valid reasons exist – all disputes in one contract should be
handled by Same Tribunal through multiple Arbitration proceedings.
Parties while filing application under Sec 9 /34 should disclose
pendency of any application /petition for the same contract.
In case multiple arbitration are underway in a contract, findings of one
arbitration should be based on merits of that case only upto the date
when it was announced and not based on findings of second ref.
Query 1
Refs
• Gammon India Ltd Vs NHAI 23 June 2020- Delhi HC
• Dolphin Drilling vs ONGC 2009, SCI
• Hero Wind Energy v Inox Renewables Jul 2020 –Delhi HC
• Vijay Karia Vs Prysmian Cavi …Feb 2020, SCI
Query 2
Is it sufficient for the Claimant Contractor to prove that the Client failed
to provide land/drawings as per the agreed schedule to claim delay
compensation merely based on the assumed work program and the
resources contemplated to be deployed during the relevant period OR
is he required to prove the actual deployment and losses?
• Actual deployment and proof of costs unless the contract specifies
otherwise.
Practical Tips for handling Arbitration
Formats for document requests and Claims
Redfern Schedule
No Request Reasons for Objection Reply to Objection Tribunal’s

Request Decision
01 [Documents [Claimant’s [Respondent’s [Claimant’s reasons [Tribunal’s
requested] reasons opposing
reasons supporting the request, if the in reply to the short
the request] request is Respondent’s decision]
opposed]
objections]
02
03
In accordance with Procedural Order No 1 dated [xx] July 2019, the Claimant hereby applies to the Tribunal
for an order for the production of documents from the Respondent.
Requesting Party: Armesto Schedule Requested Party:
Document Request No. 1.
R1: Description of requested Documents (max. 200 words)
Requesting party Requested party Tribunal
Time frame of issuance
R2: Relevance and materiality (max. 250 words)

Reference in Memorial (paras.)
R3: Not in possession of requesting party (max. 100 words)

O1: Legal or settlement privilege (max. 250 words)

Requested party Requesting party Tribunal
O2: Production is unreasonably burdensome (max. 200 words)

O3: Loss, destruction or inexistence (max. 100 words)

O4: Technical or commercial confidentiality (max. 200 words)

O5: Special political or institutional sensitivity (max. 250 words)

Requested Party Requesting party Tribunal
Scott Schedule
No. Alleged Defect Claimant’s Cost Defendant’s Defendant’s Cost Reserved for
Estimate(1000s) Response Estimate Judge’s Use
1 The bath is not INR150 It slopes slightly INR25

level towards the plug
as it must
2 The power INR 300 I did not do the INR75
shower electrics electrical work
are not earthed
3 Tiles have been INR1,000 I did crack a few INR100
damaged around tiles which are
the foot of the out of sight but
basin. The can be easily
bathroom has to replaced
be retiled
Applicant's Contractual Claims
Item Basis alleged breach of Applicant's claimed Applicant's Claim for Costs Respondent's Respondent's Response Respondent's Response to
No contract Scope of Remedial Response to to Alleged Scope of Costs Claimed
Work Workmanship Work
1. Eaves omitted from roof (a)Remove roof See quote XYZ Co Eaves reduced as a result of Agreed but Most roof sheeting should be
over main bedroom on S. sheeting from main (a) Labour - 15 hrs Architect's instruction AI 23 dispute is capable of re- use if removed with
Elevation contrary to bedroom roof and Rs 82500 to alter pitch on S elevation necessary. care. Reduce this cost by 80% to
Contract Drawing (DWG roof timbers. to Rs44000 as allowance for any
7) and pitch to S elevation (b)(i) to re-construct roof 30 degrees to ensure ridge necessary replacement.
is (b)Reconstruct roof framing- labour - 30 hrs board continuous and Remaining costs accepted but
30 degrees rather than timber framing and Rs165000 aligned with roof above liability denied.
specified replace new roof (ii)- materials as detailed main living areas. Liability
27 degrees sheeting so as to Rs132000 denied.
(DWG 7). comply with contract. (iii)labour to reinstall roof
sheeting - 22.5 hrs
Rs1237.0
(iv) roof sheeting
Rs 220000 (incl.GST)
Total Rs723250
2. Exterior wall paint Clean down See quote A White Colour applied in Agreed but Costs not accepted. See
is a different colour walls, prepare Painters: accordance with dispute is other quotes provided
to that specified. and re-paint Labour Rs275000 sample agreed on necessary. to applicant ranging
Specification S22 with 2 coats to Paint Rs44000 site. See Site between Rs 220000 and
Exterior walls comply with Scaffold Hire (2 Meeting Minutes Rs 380000 (incl. GST) all of
Dulux pastel egg Contract weeks/Rs 12500/day = 14x 23.2.12. which allow 7 days
shell. 12500 = Rs175000 scaffolding hire.
(incl.GST) Rs 494000 Accept costing of
Rs220000
Total contractual costs: Rs1217250 Total respondents assessed contractual costs: Rs765250
Total workmanship and contractual costs: Rs29,92750 Total respondent's assessed workmanship and contractual costs:Rs 1281500
Property name:
Parties - Client:
Builder
(a) Basic Version
Serial Claimant Defendant Judge’s columns

No.
Item Valuation Price Valuation Price Valuation/comments Price
1. [This should set out the [In this column Rs 35000 [This is where [and here the
item being claimed – you set out how the client should amount
ideally with reference to you value the insert their they
the date of the work – for response ...] propose]
instruction and then the example, 3
issue - e.g. Letter of hours at Rs5000
xx/xx/xx – re-plastering per hour;
of rear wall] materials
Rs20000]
2.
(b) Defects Schedule
Serial Claimant Defendant Judge’s

No. columns
Description of defect Term of Remedial work Cost of Replies/comments Replies/comments Comments Price
contract done/required remedia on breach on remedial work
and l work of contract and cost
specificatio
n breached
1.
2.
(c) Delays Schedule
Serial Claimant Defendant Judge’s

No. columns
Delaying event Effect of the Total delay Description Comments Comments Price
event of disruption
1.
2.
STATEMENT OF CLAIM
INTRODUCTION
This statement of claim is filed by the claimant [X] in support of its claim against therespondent [X] under
[X]. This statement of claim incorporates and restates the claimant’s notice of arbitration dated X.
Witness statements and supporting documents
This Statement of Claim is accompanied by the following:
A witness statement of [X] dated [X]
An expert report from [X] of [X] dated [X] as to [X]
Exhibits numbers C-1 to C-X and Authorities numbers CA-1 to CA-X.
[Appendices X, including a chronology, dramatis personae etc]
Structure of this Statement of Claim
The structure of this Statement of Claim is as follows:
List the structure together with a one sentence summary of what the sectionaddresses.
EXECUTIVE SUMMARY
Summarise your submission here, outlining your main claims, fact evidence, key documents and
expert evidence, what you are asking from the tribunal in form of relief.
STATEMENT OF CLAIM
PROCEDURAL BACKGROUND
Depending on how your case has progressed to date and the “buy-in” from the respondent
to the arbitration process, this might be a necessary section of your first substantive
submission in the arbitration.
You might wish to record how the tribunal was appointed and the agreement reached at
the first procedural conference. If there are particular points of contention that have not
yet been resolved procedurally you may wish to mention them here.
If the respondent has signalled at the first procedural conference that it will take issue with
the tribunal’s jurisdiction or seek to hive off an issue as a preliminary objection, you could
say you reserve your right to address that in future submissions.
STATEMENT OF CLAIM
FACTUAL BACKGROUND
Set out the key facts of your case by reference to relevant supporting documents and your
witness evidence. This should read as a factual narrative that is easy for the Tribunal to
understand.
Think carefully how this should be presented: chronologically, by issues/by underlying
contracts (if there is a suite of documents) etc.
THE CLAIMS [MERITS/LIABILITY SECTION]
In this section you will present your claims by reference to both the facts and the law. You
will set out your arguments on each of your causes of action and why you should prevail.
For example, if you are arguing an implied term, you would touch on the relevant law of
implied terms, cite the key cases and then apply that to the facts before you, by reference
to your fact evidence.
There may be issues of expert evidence here if for example, the implied term is in a
particular industry or would have been market practice. You should aim to tie this all
together.
Fit for Purpose
Fit for purpose vs Reasonable Skill and Care
Fit for Purpose Reasonable Skill and Care

Obligation to achieve a result regardless of Measures the performance of the Contractor,
circumstances usually in comparison to other professional persons
of the same standard carrying out similar work.
Stricter obligation Equitable obligation

Fit for Purpose: Case Study
In a recent UK case, the Contractor entered into an agreement with the Employer for the design, fabrication and
installation of the foundations for 60 wind turbine generators. The contract provided that the design must comply
with an international standard known as J101 for the design of offshore wind turbines. However, unknown to the
Contractor and everyone else at the time, J101 contained an error which resulted in the foundations being
defective.
The Contract contained a fit for purpose clause. Will the contractor be liable?
STATEMENT OF CLAIM
DAMAGES (OR OTHER RELIEF SOUGHT, EG RESTITUTION, SPECIFIC PERFORMANCE ETC)
You might wish to have a separate section on damages – or deal with damages following
each cause of action. Regardless, you should explain the legal /contractual basis for your
claim for damages / test for damages and then rely on your expert evidence to show what
the quantum of your claim is.
STATEMENT OF CLAIM
RELIEF SOUGHT
You should summarise what you want from the tribunal at the end of your submission.
For example, the claimant seeks the following relief:

a. A declaration that .. was an implied term of the contract that [X]
b. A declaration that respondent has breached that implied term and breached the
contract.
c. An order that the respondent pay the claimant damages in the amount of [X].
d. Interest in the amount of [X].
e. An order that the respondent pay the costs of the proceedings, including the costs
of the tribunal as well as the legal and other expenses incurred by the claimant, including
but not limited to the fees of their legal counsel, experts and consultants on a full
indemnity basis, plus interest at a reasonable rate to be determined by the tribunal;
f. Any other relief the tribunal may deem appropriate in the circumstances.
Case Study 3
• Contractor made to execute extra work
• Market rates applicable
“In the case of extra item(s) (items that are completely new, and are in addition to the items contained in the contract),
the contractor may within fifteen days of receipt of order or occurrence of the item(s) submit market rate claim rates,
supported by proper analysis which shall include invoices, vouchers etc. and Manufacturer’s specification for the work
failing which the rate approved later by the Engineer- in- charge shall be binding and the Engineer-in-Charge shall within
prescribed time limit of the receipt of the claims supported by analysis , after giving consideration to the analysis of the
rates submitted by the contractor, determine the rates on the basis of the market rates and the contractor shall be paid
in accordance with the rates so determined, failing which it will be deemed to have been approved Deviation,
Substituted Items”
• Contractor claimed to have sent letter and sp documents
• Dept claimed nothing received
• 6 months lost in tracing – not traced
Issue – Extra work was done or not done. If done how much should the contractor be paid
Lesson- Focus on the issue in hand. “A bird in hand is better than two in bush”
Case Study 4
Issue – pricing of Deviation statement
Argument- whether it is composite civil- elec contract
12 months in the argument
Relevance of the argument to the deviation statement – nil
Practical solution – Payment at DSR rates plus ..%
Lesson- Focus on the issue in hand.

Remember – Google motto-”Done is better than perfection”
Case Study 4:… bank Mumbai
• Design consultant hired on percentage basis
• % of planned cost or actual executed cost whichever is lower
• Scope of work – construction of Annexe (adjacent building)- estimated cost – Rs 40cr
• Actual Cost- Rs 120 cr (since construction of Annexe led to number of changes in existing building and adjacent areas)
• Arguments of claimant- fair play
• What he should have argued-
• Work done beyond scope of contract
• Allocated scope – X
• Actual done X+Y
Find the most appropriate reason entitling you to the claim

Case Study 5 : Cl 10 C
• Cl 10C omitted in contract – written as NA
• Contract- Maintenance and operation of elevators
• Labour intensive
• During course of contract, labour wages increased by 50%
• Contractor gave proof of min wages paid.
• Dept refused to pay since contract said- “cl 10 C-NA”
• Contractor’s lawyers argued on labour Act, constitution rights etc.
Contract has to be read as a whole.

Cl 10 C NA implies methodology of payment for labour escalation not given. Contract says- contractor will quote as per
existing labour and material rates at the time of tender submission. No mention of “freezing” of rates.
Read contract as whole. First find clauses in contract which lead to your entitlement rather than court judgements or
legal clauses
Case Study 6: IIT …
EPC contract for construction of Swimming pool.
Design etc completed, initial mob started
HRD ministry refused to give funds. IIT did not have funds.
CPWD foreclosed the contract.
Clause 13
Foreclosure of contract due to Abandonment or Reduction in Scope of Work
If at any time after acceptance of the tender or during the progress of work, the purpose or object for which the work is
being done changes due to any supervening cause and as a result of which the work has to be abandoned or reduced in
scope the Engineer-in-Charge shall give notice in writing to that effect to the contractor stating the decision as well as the
cause for such decision and the contractor shall act accordingly in the matter. The contractor shall have no claim to any
payment of compensation or otherwise whatsoever, on account of any profit or advantage which he might have derived
from the execution of the works in full but which he did not derive in consequence of the foreclosure of the whole or part
of the works.
The contractor shall be paid at contract rates, full amount for works executed at site and, in addition, a reasonable
amount as certified by the Engineer-in-Charge for the items hereunder mentioned which could not be utilized on the
work to the full extent in view of the foreclosure;
(i) Any expenditure incurred on preliminary site work, e.g. temporary access roads, temporary labour huts, staff quarters
and site office; storage accommodation and water storage tanks.
(ii) Government shall have the option to take over contractor’s materials or any part thereof either brought to site or of
which the contractor is legally bound to accept delivery from suppliers (for incorporation in or incidental to the work)
provided, however Government shall be bound to take over the materials or such portions thereof as the contractor does
not desire to retain. For materials taken over or to be taken over by Government, cost of such materials as detailed by
Engineer-in- Charge shall be paid. The cost shall, however, take into account purchase price, cost of transportation and
deterioration or damage which may have been caused to materials whilst in the custody of the contractor.
(iii) Reasonable compensation for transfer of T & P from site to contractor’s permanent stores or to his other works,
whichever is less. If T & P are not transported to either of the said places, no cost of transportation shall be payable.
(iv) Reasonable compensation for repatriation of contractor’s site staff and imported labour to the extent necessary.
Case Study 6: IIT …
Contractor argued for loss of profit, quoting some judgements
Dept argued contract clause very clear
“Foreclosure of contract due to Abandonment or Reduction in Scope of Work
If at any time after acceptance of the tender or during the progress of work, the purpose or object for which the work is
being done changes due to any supervening cause and as a result of which the work has to be abandoned or reduced in
scope…”
This is not abandonment or reduction in scope.

Falls under Breach of contract
Read contract terms carefully
Be Aware of Latest Court Judgements
• If party cannot prove claim – rejected-Arbitrator cannot ask party to provide additional evidence to prove claim and
dictate a procedure (eg ref to CA)
• NTPC Limited v. Larsen & Toubro Limited. (#DelhiHighCourt, Single Judge, decided on 26.11.2021)
• Award of Interest
• No interest payable on “Any moneys due to the contractor” by the employer
• Garg Builders v. Bharat Heavy Electricals Limited, 2021 SCC OnLine SC 855 = 2021
"Clause 50.0- Interest on money due to the contractor . No omission on the part of the Engineer in charge to pay the
amount due upon measurement or otherwise shall vitiate or make void the contract, nor shall the contractor be entitled
to interest upon any guarantee or payments in arrears nor upon any balance which may on the final settlement of his
account, be due to him.
Clause 51.0- No claim for delayed payment due to dispute etc. No claim for interest or damage will be entertained or be
payable by the corporation in respect of any amount or balance which may be lying with the corporation owing to
nay dispute, different or misunderstanding between the parties or in respect of any delay or omission on the part of
the Engineer in charge in making intermediate or final payments on in any other respect whatsoever.”
• If claiming LD/DD, record and correlate approximate loss or prove impossible to correlate loss. Just mentioning pre-
estimated damage clause not enough
• Welspun Specialty Solutions Ltd. v. ONGC (CJI, #SupremeCourtofIndia, decided on 13.11.2021)
• Unilateral appt of Arbitrator not valid
• The contention that the Petitioner had acquiesced in the appointment of the Arbitrator by participating in the arbitral
proceedings had waived its right to object to the appointment of the learned arbitrator is unmerited. The proviso to Section
12(5) of the Arbitration & Conciliation Act provides that the ineligibility under Section 12(5) may be waived only by “an express
agreement in writing”. Such a waiver cannot be inferred by conduct, but must be expressly and in writing, as the provision
provides.
• DELHI BUILDTECH PRIVATE LIMITED v SATYA INFRA DEVELOPERS PRIVATE LIMITED (Single Judge, Delhi High Court, decided on
(21.10.2021)
• Retired Employees allowed as arbitrators but panel should be broad based and contractor right to choose from the
panel
• BCC Developers & Promoters Ltd. v. Delhi Metro Rail Corporation Ltd, (Single Judge, Delhi High Court, decided on 28.10.2021
• Understand meaning of Venue and Seat of Arbitration
d
• 𝐏𝐫𝐞-𝐚𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐒𝐭𝐞𝐩𝐬 𝐢𝐧 𝐚𝐧 𝐀𝐠𝐫𝐞𝐞𝐦𝐞𝐧𝐭 are 𝐌𝐚𝐧d𝐚𝐭𝐨𝐫𝐲

• M/S SANJAY IRON AND STEEL LIMITED v. Steel Authority of India Limited (Delhi High Court, single judge, decided on
01.10.2021),
• Sole Arbitrator without choice acceptable if expressly agreed by parties in contract.
• “Any Dispute arising out of the Business Loan Agreement, shall be referred to a sole arbitrator, from amongst those listed in
Schedule hereto, as per his/her availability, in the order of preference in which they have been set-out. The Parties consent to
such appointment of arbitrator and agree that, upon reference of any Dispute to the arbitrator and acceptance by the sole
arbitrator, no separate consent of the Parties will be required for the appointment.” The schedule contained names of six
persons, in order of preference.
• Select Realty & Ors v. Intec Capital Limited (Delhi High Court, single judge, decided on 09.09.2021)
• 𝐂𝐚𝐧 𝐚𝐧 𝐀𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐨𝐫, 𝐫𝐮𝐥𝐞 𝐨𝐧 𝐚𝐧 “𝐞𝐱𝐜𝐞𝐩𝐭𝐞𝐝 𝐦𝐚𝐭𝐭𝐞𝐫”: 𝐚 𝐦𝐚𝐭𝐭𝐞𝐫 𝐞𝐱𝐩𝐫𝐞𝐬𝐬𝐥𝐲 𝐞𝐱𝐜𝐥𝐮𝐝𝐞𝐝 𝐛𝐲 𝐭𝐡𝐞 𝐀𝐠𝐫𝐞𝐞𝐦𝐞𝐧𝐭 𝐟𝐫𝐨𝐦
𝐫𝐞𝐟𝐞𝐫𝐞𝐧𝐜𝐞 𝐭𝐨 𝐚𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐢𝐨𝐧?
• Yes if both parties do not raise objection during arbitral hearing
• Gen excepted matters are on compensation decision . Even if agreed as Excepted matter- the quantum is Excepted matter and
not the factum.
• Coercion in NOC at time for final bill
• Based on timing on NOC , conduct and correspondence
• of GAIL (India) Limited vs. BANSAL INFRATECH SYNERGIS INDIA LIMITED (Delhi High Court, Single Judge, 27.07.2021)
𝐋𝐞𝐭𝐭𝐞𝐫 𝐨𝐟 𝐈𝐧𝐭𝐞𝐧𝐭 as 𝐚 𝐛𝐢𝐧𝐝𝐢𝐧𝐠 𝐂𝐨𝐧𝐭𝐫𝐚𝐜𝐭
• The terms of the Notice Inviting Tender (NIT).
• The terms of the LOI
• The conduct of the parties.
Contracts with time bar claims clauses
• Not a statutory limitation or bar(conflicts with Section 28 of ICA)
• Ajay Deep Construction vs Maharashtra SPH&W , Bom HC 2021
Guerrilla tactics in domestic arbitration
• make an unusual request or application to the arbitration tribunal at the last minute.
• Not permitted
• RAIL VIKAS v. SIMPLEX INFRASTRUCTURES (Del. HC 2021, 1 J),
Do not rely on PMC or consultant too much
• A party urging an arbitral tribunal to make inferences only on the opponent's evidence without producing its own
evidence to support its own claim is never a good strategy in litigation or arbitration.
• Hard Rock – Mechanical tools used by contractor but no permission taken from PMC for blasting etc . Hard Rock
encountered based on other evidences.
• IRCON INTERNATIONAL v. CANNON ENGINEERING (Delhi HC 2021, 1 J)
DPR as Evidence
• DPR is considered an expert report and unless challenged, it will form a basis to test the correctness of assumptions in
the project when it is challenged in courts. Data, assumptions and conclusions in a DPR will be critical even for post-
project construction when it is evaluated for safety, commercial viability, legality or environmental issues in courts.
• What if it comes with a specific disclaimer?
Delegation of powers to appoint the Arbitrator to one of the parties to the contract Legal -(2008) 8 SCC 151
Datar Switches Vs Tata Finance
Appointing a person who was involved in a project as an arbitrator is not sustainable S.12 (2009) 2 SCC 337
BSNL Vs Motorola
Power to appoint an arbitrator expires, if the opposite party approaches the court, after deadline (2012) 2
SCC 759 & (2006) 2 SCC 638
If objection against an appointment of arbitrator is not raised before filing of the defense statement, then it
will amount to waiver of right (2014) 11 SCC 366 Union of India Vs PAM Development
Any Party to the contract has to invoke the arbitration clause within 3 months from the date of final bill (hit
by S.28 of the Contract Act.)
An arbitration agreement need not be stamped ( 2010) 1SCC 181 Geo Group Communications Ltd Vs IOL
Broad band
Parties can enter into an Arbitration agreement even while the Civil court proceeding is pending (2000) 4 SCC
539 P Anand Gajapathi Raju Vs PVG Raju
OHs and Loss of profit/Opportunity
Hudson formula And normative basis not adequate – actual figures correlation required
• CPWD norms – 7.5% loss of profit and 7.5% OH claims as prolongation cost. May not be accepted in all cases.
• M/S Siddharth Construction Co vs India Tourism Development ... on 14 September, 2021 IN THE HIGH COURT OF
DELHI AT NEW DELHI
Challenging contract conditions as one sided
• No escalation allowed during extended period
• Valid- VASCON ENGINEERS v. UOI (Del. HC 2021, 1 J)
Case 7-Contractor had to use stones and soil excavated from site and pay royalty. Contractor kept challenging clause of
Royalty as unfair and did not pay
• Arbitration – Paid INR 40 L as interest on late payment of Royalty
Do not waste time challenging contract conditions as one sided unless any clause is void
Ask for Delay Analysis Expert
A multi million USD Project being constructed by India’s largest Construction Company.
A complicated Gas Processing Plant –EPC Project- Engineering, Procurement & Construction
A brown and green field project- Requiring lot of interfaces
Project original duration – 36 months
Project Delayed by 6 months
Project valued at USD 300 million- Rs 2000 crores approximately
Penalty – USD 30 million- 10% of the Contract value- Reaches maximum value within 2 months
Contractor faced several hinderances- Including delay in approval of documents/Unknown and unforeseen
hinderances/Delay in Gas availability for commissioning etc.
Client put the onus of delay on the Contractor and penalised 100% during execution
Matter went for arbitration
Contractor awarded waiver of penalty and compensation
Delay Analysis proved that a total of 250 days of delay attributable to Owner delay events and Contractor crashed the
schedule by mobilising additional resources. Hence, Contractor compensated accordingly.
Global Best practices
E Discovery
Parties provide each other with relevant electronic information and records, along with all other evidence related to the
case.
Needs expertise and should be inbuilt in arbitration agreement
During discovery in a breach of contract arbitration, the responding party produces what it has deemed to be all the
responsive files from the repositories in its possession. The production is smaller than the requesting party anticipated
and some emails that the requesting party knows existed are not in the production. The requesting party demands to
inspect all repositories of potentially relevant electronically stored information (ESI) the responding party has, thinking
that the responding party may have deleted ESI. The responding party argues that no relevant information was deleted,
all of the responsive files were produced and that an inspection would expose privileged and confidential information.
What may have started as a simple breach of contract case has now turned into a full-blown e-discovery battle,
Hot Tubbing
Hot-tubbing is also referred to as “Concurrent Expert Witness:” Tandem Expert”, “Dueling Experts”. Hot-tubbing is the
method where the experts simultaneously give their evidence and arbitrator leading the discussion between them. The
written statements and all other evidence has been concluded, experts step in the witness box. The one expert presents
his facts and figures and the opposing expert may then ask a question or vice-versa. Each expert presents their facts and
figures. When they conclude themselves, then the counsel of either side or the arbitrator may question the expert so as
to understand the testimony and reach a better solution.
Set out Respective Meeting of

Examine Written
Ground factual Experts Experts to Jt
non-expert reports
rules basis of Depose discuss statement
witnesses Exchanged
case together reports
AT – Agreed
Qs to Experts –
Matters Agreed/ agenda for Experts sworn Directed
topic by topic – Clarifications
Disagreed concurrent together discussion
same qs to both
evidence
TIME MANAGEMENT – PRE ARBITRATION AND DURING THE PROCEEDINGS
• ADHERING TO TIME SCHEDULE.
• SELECTING THE RIGHT COUNSEL.
• SELECTING THE RIGHT ARBITRATOR – SECTORAL KNOWLEDGE, AVAILABILITY.
• DOCUMENTS MANAGEMENT – ISSUE WISE OR CLAIM WISE
• IDENTIFYING DIFFERENT HEADS OF CLAIMS
• WITNESS STATEMENT PREPARATION
• DAMAGE ANALYSIS
ROLE OF PARTIES IN TIME MANAGMENT
CLEAR KNOWLEDGE OF CLAIMS.
ABILITY TO IDENTIFY STAGE OF WORK COMPLETED AND EXACT ISSUES INVOLVED IN DISPUTE.
TIMELY PROVISIONING ADEQUATE DOCUMENTS.
AVOID UNNECESSARY CORRESPONDENCE.
IDENTIFYING EFFICIENT HUMAN RESOURCES FOR CONTRIBUTING TECHNICAL DETAILS.
ENSURE PRESENCE OF EX-EMPLOYEES TO GIVE EVIDENCE.
MAINTAIN RECORDS FOR AFTER COMPLETION OF THE PROJECT.

SPECIFIC REQUIREMENTS IN INFRASTRUCTURE ARBITRATION
• PROPER MANAGEMENT OF HEAVY DOCUMENTATION.
• PROPER QUANTIFICATION AND APPORTIONMENT OF DELAY TO EXTEND THE TIME CLAIM.
• COMMITTING TO REASONABLE DEADLINE.
• DETERMINING OPTIMAL PROCEDURE IN TERMS OF ROUNDS AND LENGTH OF BRIEFS,

NUMBER OF WITNESSES AND EXPERTS AND THE LENGTH OF HEARINGS.
383
Do’s and Dont’s – Contractual Agreement
• Clear and unequivocal intention to • Avoid use of “May”
have disputes settled through
arbitration • Avoid specific description of
scope of disputes
• Specify scope of disputes capable of
ref • Right to arbitration should be
• Pre-Arbitration contractual steps available to both parties
• Arbitral Tribunal and its composition • Written
• Clearly identify seat and venue • Avoid Innovative practices
• Specify governing law
• Specify language of arbitration
Innovative Practices in Arbitration
Baseball or final-offer arbitration.

• In this process, each party submits a proposed monetary award to the arbitrator, who
chooses one of the proposed awards based on the merits of the presented case. The
arbitrator does not modify the prevailing party’s proposed award. This technique limits
the arbitrator’s discretion and encourages the parties to propose reasonable awards.
Night baseball arbitration.
• As with baseball arbitration, the parties propose monetary awards to the arbitrator but in
night baseball, the arbitrator does not know the contents of the proposed awards. Rather,
the arbitrator issues a separate monetary award and the proposed award that is closest to
the amount in the arbitrator’s decision becomes binding on the parties.
High-low arbitration.
• Before the arbitration hearing and without informing the arbitrator, the parties establish a
bounded range of awards. If the arbitrator’s award falls within that range, then the
arbitrator’s award becomes binding on the parties. If the arbitrator’s award is outside the
range, then the parties will be bound to whichever of their proposals is closest to the
arbitrator’s award.
Innovative Practices in Arbitration
• Customized Arbitration .
In this parties can select customized additions to model clauses such as
abridged time limits , document only arbitration and online system will
generate customized inclusions in the contract
Emergency Arbitration.
Countries having statutory adjudication on lines of UK HGCRA , may not need
this provision.
Summary Disposal of Claims.
Being practiced by Singapore International Arbitration Centre since 2016 for
quick dismissal of non-meritorious or hopeless claims.
Selection of Arbitral Tribunal
• Legal , Tech and ?

• Availability and current cases being handled by the arbitrator
• Preference to Institutional arbitration
Strategies for Effective Management
• Seek if AT requires clarifications in respect of
• Organization, layouts, responsibilities , tech terms
• Definition of claim or issue(eg definition of term “compensation”)
• Ascertain
• Whether all pre-arbitration contractual compliances have been made(eg NOD
in FIDIC DAB)
• Nature of claims raised and limitations
Terms of reference
• Consent and NOC of both parties on :

• Existence of Arbitration agreement
• Appointment of arbitrator
• ToR(should be done by AT-parties can assist)
• Description of disputes
• Limits of Authority of AT
• Description of parties and arbitrators
• Language
• Summary of parties respective claims and relief sought
• Include reservation of possible future claims if party is not a position to refer all claims
to arbitration (eg some dispute stell pending with DAB/Conciliation)
• Procedures to be followed
Terms of reference
• ToR
• List of issues noticed by AT
• Have agreed prelim list with parties- refine at case mgmt conference
• No party to make new claims beyond ToR(new arguments etc allowed)
• Site visits
• Expert evidence
CMC
• Mechanism for determining the manner in which the arbitration will be conducted
• To narrow down issues
• To define further evidence required
• Documents to be produced
• Expert witnesses
• Which issues to be focussed upon
• Seek bifurcation of the proceedings or an early determination of controlling issues,
the resolution of which might facilitate settlement.
• Parties may make case management proposals
• The decisions made at the case management conference can be modified during
the course of the arbitration by agreement of all of the parties or, failing such
agreement, by a decision of the arbitral tribunal.
CMC
1st CMC- Directions regarding document production and management”:
• Avoid duplication of documents and provision of easy digital access
• Interparty correspondence- agreed record of meetings, valuations , drawings, jt
measurements etc)
• Separate indexed files
• Witness statements , expert reports , sp documents can be in digital form –
hyerlink with documents wherever possible
• Discuss confidentiality – access to party’s internal records
• Issue wise bundles
• Common working files
• Cut-off date after which no further documents will be produced
• Tendering evidence from experts
Expert Engagement
Jt Expert meetings
• Org discussions between experts of parties before submission of report
• Jt session with AT – whether agreement between experts binding upon
parties
Documents in Construction Disputes
• Pre-contractual documents- DPR, tender reqmts
• Contractual documents
• Schedules
• Correspondence
• Contemporaneous record – progress reports, site logs, Daily reports
• Cost documents- invoices , proof of payments
Documents in Construction Disputes
• Step 1- Document Review and Disclosure
• Document Review
• Process in which a party verifies the documents it possesses in order to eliminate those that
are irrelevant or immaterial to the case
• Identifies missing documents
• Providing AT with only relevant documents simplifies and speeds up process
• Identifies confidential documents
• Use EDMS
• Sort out into “Working files” and “Issue files”
• Working files- sets of site minutes, programmes, instructions
• Issue files - each file will contain documents relevant to each issue.
• Numbering system , colour code
• Show relevant documents to witnesses
Practical Hints from Arbitrators- Arb1- legal
• Make documentation understandable to the Arbitrator
• Summarize letters and Notices
• Segregate disputed points with non-disputed points
• Link correspondence
• Learn modalities of concurrent delay- Go through SCL D&D protocol
• Keep proof of damages
• Contractor delayed payment – had to borrow from bank
• Employer – Delayed completion of housing project – had to pay HRA
• Approximation or just proof of extra expenditure is adequate
• LD/DD/Penalty- Inclusion of pre-estimated amount in contract not sufficient
• Case - Def Housing Project- HRA, CAG Report
• Loss of opportunity – prove in detail
• Use Scott Schedule
Practical Hints from Arbitrators- Arb 2- Engineer
• Do not quote too many judgements- each case is different- Arbitrators like
to decide a case on its own merits. Concentrate on the merits of the case.
Understand contractual clauses. No need to support with judgements if
contract clauses adequate.
• Make claim plea- brief- do not get personal
• Do not exaggerate claim
• Time
• Costs of arbitration
• Make lessons learnt folder after each case
• LD – at least prove factum of loss
• Oral evidence only if required- rely on documentary evidence
• Try and find amicable solutions during arbitration
THANK YOU

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CONSTRUCTION CLAIMS

Session 1- Introduction , types of claims, EOT claims

MILESTONE-2 CONTRACTOR SHALL HAVE ACHIEVED THE FOLLOWING:

MILESTONE-3 CONTRACTOR SHALL HAVE COMPLETED THE LINKING OF MAIN LINE

MILESTONE-4 CONTRACTOR SHALL HAVE COMPLETED THE TESTS ON COMPLETION

MILESTONE MS-1 MS-2 MS-3 MS-4 MS-5

EOT-1: APPLIED 10-FEB-18 20-JUL-18 19-JUN-19 24-OCT-19 2-JAN-20

COMMENCEMENT DATE – 14/07/2016

3. 182 DAYS 95%

4. 365 DAYS 100%

1 1367.9 1373.2 5.300 5.300 0 0 1 0

DAYS FROM 325 570 940 1020 1100

EOT-1: APPROVED 17-DEC-17 31-MAR-18 9-FEB-19 30-APR-19 19-JUL-19

EOT-4 APPLIED 21-JUN-18 03-JUN-19 06-JUN-20 26-AUG-20 13-NOV-20

EOT-4 APPROVED 30-MAR-18 31-DEC-18 9-FEB-19 30-APR-19 19-JUL-19

EOT-5: APPLIED 21-JUN-18 20-AUG-19 24-AUG-20 12-NOV-20 01-FEB-21

EOT-5: RECOMMENDED BY 30-MAR-18 31-MAY-19 04-JUNE-20 23-AUG-20 11-NOV-20

13. NO OF PERIODS ARE OVERLAPPING BETWEEN DATES OF POSSESSION OF SITES, FORCED

• A request for a benefit which a claimant believes or contends he is

• Only a contract gives entitlement to contractual claim.

• Actual entitlement different under different forms of contracts.

• Claim under the law gives entitlement to “extra contractual” claim.

► ECD- Excusable, Compensable

Employer changes building’s roof from steel structure to concrete slab.

Retrospective Analyses Prospective Analyses

LOOKING BACK LOOKING FORWARD

• As‐planned versus As‐built • Time‐Impact Analysis

Compare As‐Planned vs As‐Built

(delays and disruptions)

• IDENTIFY BASELINE PGME (ORIGINAL PLAN)

• IDENTIFY CRITICAL AND NEAR CRITICAL PATHS

• is the most basic method of analysis

• Identify Planned Period & As‐built

Actual Completion ‘but for’

Culpable or non‐ Claim

• retrospective method also known as Collapsed As‐built (CAB)

• IDENTIFY BASELINE PGME

• EFFECT OF DELAYS ON UPDATED AS PLANNED PGME BY IMPOSING DELAYS ONE BY ONE ON

• prospective and dynamic method – but can be applied retrospectively

The project life cycle is divided into a series of consecutive time

Step 2 : Establish the impact on time for Completion.

Step 4 : Establish the impact on the Time for Completion.

D1 : Impact delay period due to “Employer Delay Events”

HOW TO HANDLE CONCURRENCY?

• BASED ON DELAY AFFECTING CRITICAL PATH

THE MALMAISON APPROACH

• ENTITLES CONTRACTOR TO EXCUSABLE NON-COMPENSABLE DELAY

COURT JUDGEMENTS ON CONCURRENCY

Inferences for Employer from these judgments

WAIVER DOCTRINE – USA

Hudson’s Building and Engineering Contracts

PROMISEE CANNOT INSIST UPON PERFORMANCE OF OBLIGATION WHICH HE HAS PREVENTED

APPLICABILTY TO CONSTRUCTION CONTRACTS

• EMPLOYER CANNOT HOLD CONTRACTOR TO A SPECIFIED COMPLETION DATE IF THE

• BASED ON BRITISH CASE OF “HOLMES V GUPPY 1838”

• EOT CLAUSES WERE INCORPORATED IN CONSTRUCTION CONTRACTS AFTER THIS!

• PROVISION OF EOT IN CONTRACT OBVIATES PREVENTION PRINCIPLE

ANY EXAMPLE OF TIME AT LARGE?

• AWARD OF EOT DOES NOT AUTOMATICALLY ENTITLE TO PROLONGATION COSTS