Robert H A Brimacombe

Final Webinar Contract Comparison Course for 2024🔓 Cracking Construction Contracts: FIDIC, JBCC, GCC, NEC4. (View outline: https://lnkd.in/dihcgS5G)

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In this guide, we have put together 15 top tips for successful construction projects. We also provide an introduction to the current FIDIC contracts.

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The principle of advance warning has been in international construction contracts for a while but in the FIDIC contract since only 2017. MENA region practitioners can associate with this principle through the mandatory legal requirement of good faith when implementing contracts. But let's think about this for a minute: would a contractor REALLY inform the employer in advance if there is a design-related issue in the drawings that can be a good case for a claim down the line? Would an employer REALLY tell the contractor that there are obstacles in having the required permits, which may in turn affect site access? Would an engineer REALLY put his/her relationship with the employer on the line and inform the contractor of an upcoming scope variation before its design is completed? Let's explore the answers to these questions through this valuable event hosted by Chartered Institute of Arbitrators (Egypt Branch) that discusses a masters research at the Construction Engineering Department of The American University in Cairo by Eng. Gehad Ibrahim, under the supervision of Dr Samer Ezeldin and myself. This is an online event that should not be missed. Looking forward to your attendance and participation on September 18, 2024, God willing. For further details and registration: https://lnkd.in/drytVYHm

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FIDIC 99 - SC 20.1 Contractor’s Claims: Engineer's Response and Determinations - Concurrent or Sequential? I came across an intriguing article by Victoria Tyson titled "FIDIC 1999 Books – Commentary on Clause 20", which explores the procedural complexities within Sub-Clause 20.1 of the FIDIC 1999 Contracts. The article highlights potential confusion regarding the Engineer’s response to claims and the determination process. Here’s an excerpt from the article: “At paragraph 6 of Sub-Clause 20.1, the Engineer is then required to consider the evidence and within a further 42 days give its approval or disapproval of the claim with detailed comments. Then, at paragraph 8 of Sub-Clause 20.1, the Engineer is also required to proceed in accordance with Sub-Clause 3.5 to attempt to achieve agreement or otherwise determine the claim. Therefore, the FIDIC 1999 forms appear to provide a two-step claim examination process. The Engineer has to respond to the fully detailed claim within 42 days of its receipt, either approving or disapproving the claim even if further particulars have been requested (in which case the response would cover the "principles of the claim"). In addition, the Engineer has to proceed with the Sub-Clause 3.5 procedure in order to agree or determine the extension of time and/or additional payment. The two-step process creates unnecessary procedural confusion as to the nature of each step, the effects they have on the rights and obligations of the Parties and the Engineer and the relationship between them. For example, it is unclear whether both steps may occur concurrently or sequentially and, it is suggested, any preliminary decision made by the Engineer runs the risk of vitiating and derailing the agreement part of the Sub-Clause 3.5 procedure” Disclaimer: This post reflects the views expressed by the author of the referenced article and does not represent my own opinions. The graph included in this post represents my personal understanding of the issue discussed in the article. Reference: https://lnkd.in/dx_i6qAk

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Starting work under FIDIC 2017? Arm yourself with the practical knowledge you need. Download our free guide today

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Final Webinar Contract Comparison Course for 2024🔓 Cracking Construction Contracts: FIDIC, JBCC, GCC, NEC4 (https://lnkd.in/dihcgS5G)

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Before you start a project under FIDIC 2017, arm yourself with the practical knowledge you need. Download our free guide today

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Understanding FIDIC Sub-Clause 20.1: Claims Contractors working with FIDIC contracts must grasp the significance of Sub-Clause 20.1. This clause dictates the process for submitting claims for time extensions or additional payments. Key points to note include: - Notice Period: Contractors must inform the Engineer within 28 days of identifying a relevant event or circumstance. Missing this deadline could result in losing the claim entirely. - Supporting Documents: Following the notice, contractors have 42 days to furnish a detailed claim with all necessary documents and contemporary records. The Engineer's Role is pivotal as they must respond within 42 days of claim submission, influencing the claim's recognition. Compliance with Sub-Clause 20.1 is crucial to address claims promptly during the project. Failure to meet deadlines could give the employer a strong defense, emphasizing the importance of real-time dispute resolution. Legal Systems Differ: Common law jurisdictions often uphold time bars firmly, while civil law countries may consider factors like good faith. For instance, UK courts emphasize timely notices to investigate delays effectively. Contractors should prioritize Diligence in submitting notices promptly. Stay informed and comply with the requirements to navigate FIDIC contracts effectively. #FIDIC #ConstructionContracts #ClaimsManagement #Engineering #DisputeResolution

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Adjudication Enforcement - where the claimant’s solvency is in question The claimant, Complete Ceiling and Partitioning Systems Ltd (CCP), sought summary judgment to enforce an adjudicator’s award against DE1 Ltd, who failed to issue a pay less notice. Although DE1 did not contest the award's enforceability, it requested a stay of enforcement, citing CCP’s financial instability and potential difficulty in recovering funds if future adjudication required CCP to repay. Despite DE1's requests, CCP initially withheld solvency information, only providing it after DE1 applied for a stay. Ultimately, the court chose not to award costs to either side, emphasizing CCP’s responsibility to avoid unnecessary litigation costs by promptly sharing financial information. Case Summary and Key Issues Claim for Summary Judgment: Complete Ceiling and Partitioning Systems Ltd (Claimant) sought to enforce an adjudicator’s decision that awarded it payment from DE1 Ltd (Defendant). The Defendant did not dispute the enforceability but requested a stay on enforcement due to concerns over the Claimant's solvency. Stay of Enforcement Due to Solvency Concerns: DE1 Ltd argued for a stay, contending that if they paid the award, they might struggle to recover it in case a future judgment mandated repayment, given the Claimant's alleged financial instability. Costs of Enforcement: The core contention was whether the Claimant should have provided solvency evidence upfront to avoid the Defendant’s application costs for a stay. Judgment and Reasoning HHJ Sarah Watson granted summary judgment for the Claimant, recognizing the adjudicator’s award as enforceable but chose not to award costs to either party. The judge noted several crucial points: No Absolute Duty on Claimant to Disclose Solvency: Although the Claimant isn’t strictly obligated to disclose solvency information preemptively, refusing to do so risks court costs if reasonable evidence of solvency would have avoided litigation costs. Application of the Overriding Objective: The Claimant’s refusal to supply evidence of financial stability before formal proceedings was viewed as a breach of procedural expectations. The Overriding Objective of the CPR requires parties to help the court allocate resources effectively and avoid unnecessary costs. Defendant’s Reasonable Concerns: The Claimant’s own financial statements showed balance sheet insolvency, which would reasonably prompt the Defendant to seek reassurance before payment. Given the Claimant’s financial situation, DE1’s request for evidence wasn’t considered a “fishing expedition” but a justified precaution. Costs Outcome: HHJ Watson ordered no costs to either side. She determined that the Claimant’s lack of transparency warranted DE1’s concerns, which justified their application for a stay. At the same time, DE1 conceded payment after solvency evidence was finally submitted, resulting in neither party being awarded costs. https://lnkd.in/dkiyrxA4

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Key Principles of Concurrent Delay Analysis Employer's Responsibility: Trollope & Colls v North West [1973]: If an employer causes a delay, they cannot insist on strict adherence to the completion date. Multiplex v Honeywell [2007]: An employer cannot hold a contractor to a completion date if the employer caused the delay, resulting in "time becoming at large." Liquidated Damages: Percy Bilton v GLC [1982]: An employer cannot rely on a liquidated damages clause if they have prevented completion; instead, they must claim general damages. Causal Link Requirement: Contractors must demonstrate a causal link between the relevant event and the delay to completion to be entitled to an extension of time. Approaches to Concurrent Delays: Henry Boot v Malmaison [1999]: If two concurrent causes of delay exist, one being a relevant event, the contractor is entitled to an extension for the delay caused by that event, provided it caused critical delay. Royal Bromptom v Hammond [2001]: Emphasized the need to show that the relevant event caused a delay, not merely that it was relevant. Distinction Between Simultaneous and Sequential Delays: The Royal Bromptom case attempted to distinguish between simultaneous and sequential concurrency, a view contested by subsequent cases like City Inn v Shepherd [2008], which rejected this distinction. Apportionment Approach: The City Inn case adopted an apportionment approach, which is not recognized in England but has been supported in Scotland. Dominant Cause Test: Adyard v SD Marine [2011] and Jerram v Fenice [2011] applied the dominant cause test, which some commentators argue misapplies the prevention principle. General Guidance: The SCL Delay Protocol serves as a good practice framework for managing delay claims, despite not being legally binding. More details, please click the link below https://lnkd.in/dqT9YQYB

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A great topic from Waiel Elfatih, about the back-to-back payment mechanism in #subcontractagreements. I have the feeling the back-to-back #paymentprovision became predominant in subcontracts, acting as a mechanism to make Employers more accountable for their payment behavior. Without the "contractor-as-credit-facility" approach, an unreasonable delay in payment by an employer directly impacts the entire supply chain. In the past, contractors would often finance the project, paying their subcontractors and suppliers even when the employer #delayedpayment, thus shielding the Employer from the consequences of their own actions. With back-to-back payment clauses, this burden seems shared incentivizing timely payments from the employer. This also strengthen the concept "one team, one goal", which is extended to include "one payment". Earlier I believe there was a distortion penalizing contractors only, who were exposed to the wills both sides. That said, contractors should be flexible and consider the nature of the subcontract work. Supply agreements are rarely back-to-back as they are paid upfront or through L/C to secure raw materials. What do you think of back-to-back payment provisions? Do they strike the right balance? #contractmanagement #contractdrafting #supplychain

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Wondering why you should become a FIDIC Certified Contract Manager? Or how it could be beneficial to your career in the construction and engineering industries? Read below ⤵ what Fadi Geagea, FCCM, our Certified Contract Manager has to say about gaining this unique #FIDIC credential. You can be certified too! Start by registering for our exam before 29 November: https://lnkd.in/eTmSDa3m #FIDICcertified #contractmanager #investinyourself 

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Recently, we discussed the Engineers' #unwelcomed #Wait_and_See approach to the Contractors' timely submitted Extension of Time Claim. Now, we will discuss the #As_Should_Be approach in line with the FIDIC-99 Form of Contracts. 1. The Contractor (C) is required, by Clause 20.1, to #Give notice of a Claim (Time and/or Cost) not later than #28_days after the C became aware or should have become aware of #the_event or circumstances. 2. The C is further required to #Send to the E a fully detailed claim within #42_days after became aware or should have become aware of the event or circumstances #giving_rise to #the_claim 3. Subsequently, the Engineer (E) is required, by Clause 20.1, to #Respond #Within_42 days with approval , or with disapproval and detailed comments. He may also #Request any necessary further Particulars, but shall nevertheless give his response on the principles of the claim #within_such_time. (#Do_Not_Wait_and_See) 4- The E shall proceed with Clause 3.5 Determination to agree or determine (i) the EOT, (ii) the Additional Payment (#Do_Not_Wait_and_See) This sequence #should_be adhered to as arranged by the Contract. The aim of this process is to avoid putting the project #Time_At_Large with an Unidentified Revised Completion Date, if entitled. In this case, logically, the E #should assess the Claim and Ultimately #Should_Award an #Early_EOT. 5- If the event or circumstances giving rise to the claim has a continuing effect, the C shall send #Interim claims at monthly intervals. 6- The E shall assess and Determine #Interim_EOT as entitled 7- The C shall send a #Final_Claim #Within_28_days after the end of the effects. 8- The E shall issue its #Final_Award #Within_42_days (#Do_Not_Wait_and_See) 9- The C, as required by Clause 20.1 shall include within each Payment Certificate such amounts for any claim as has been reasonably substantiated (#Do_No_Wait_and_See) Again, the aim is to avoid putting the project #Time_At_Large with an unagreed revised completion date, if entitled, also to avoid impacting the C's #Cash_Flow 10- At this point, the #Final_EOT is ready to be issued fairly along with #Final_Cost_Compensation, regardless the Completion of the Project. A typical example to Award #Early_EOT, is the necessitaty of Pilling foundation in lieu of the Employer's specified shallow foundation. This constitutes an early, short-term, excusable, and compensable delay event, that should not be deferred for assessment and awarding until the end of the project.(#Do_No_Wait_and_See) Another example is when a portion of work on the critical path is put ON- Hold until the Employer provides a Revised Design. This situation necessitates #Interim_EOTs. (#Do_No_Wait_and_See)

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Want to know the 5 steps to success in Subcontract Tendering? 👀 In this handy resource, we go through how to beat your budgets and achieve Subcontract success across: 🚧 Pre-qual & due diligence 🚧 Pricing Documents (BoQs) 🚧 Scope of Works (SoW) 🚧 Invitation to Tender 🚧 Follow-Ups & Mid-Tenders Download it for free 👇 https://lnkd.in/g45bfvkC

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Coming to you next Monday! 🔓Cracking Construction Contracts: FIDIC, JBCC, GCC, NEC4 (https://lnkd.in/dihcgS5G) 📚Course includes & Key takeaways: - Contract Familiarity: Mastering FIDIC, JBCC, GCC, and NEC4 contract structures and clauses. - Administrative Skills: Effective contract administration techniques for smooth project execution. - Risk Management: Strategies to mitigate risks inherent in construction and engineering projects. - Dispute Resolution: Understanding dispute resolution mechanisms under these contracts. - Practical Application: Applying theoretical knowledge to real-world construction scenarios. - Professional certificate upon completion - Examples of ALL contracts will be provided in PDF format - Downloadable Course materials - 2 ECSA CPD points - 14 PMI PDU's - Access to live recorded sessions

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𝐒𝐞𝐭𝐭𝐥𝐞𝐦𝐞𝐧𝐭 𝐨𝐟 𝐂𝐨𝐧𝐭𝐫𝐚𝐜𝐭𝐨𝐫'𝐬 𝐂𝐥𝐚𝐢𝐦𝐬 𝐮𝐧𝐝𝐞𝐫 𝐅𝐈𝐃𝐈𝐂 𝐑𝐞𝐝 𝐁𝐨𝐨𝐤 𝟏𝟗𝟗𝟗: the process for settlement of the contractor's claims is as follows: ◾ The engineer must respond to the claim within 42 days, providing either approval or disapproval along with detailed comments on the claim.   ◾ The engineer is required to engage both parties in discussions to seek mutual agreement on the claim   ◾ In cases where an agreement cannot be reached, the engineer must make a fair determination in accordance with Article 3.5 of the contract. If no agreement is achieved, one party may arise it to be a dispute. Should a dispute arise: ◾ 𝐑𝐞𝐟𝐞𝐫𝐫𝐚𝐥 𝐭𝐨 𝐃𝐢𝐬𝐩𝐮𝐭𝐞 𝐑𝐞𝐬𝐨𝐥𝐮𝐭𝐢𝐨𝐧 𝐁𝐨𝐚𝐫𝐝 (𝐃𝐀𝐁):   Either party may submit the dispute in writing to the Dispute Resolution Board (DAB), ◾ 𝐃𝐞𝐜𝐢𝐬𝐢𝐨𝐧 𝐛𝐲 𝐃𝐀𝐁:   The DAB must issue its decision within 84 days of receiving the referral, or within a timeframe suggested by DAB and agreed upon by both parties. ◾ 𝐁𝐢𝐧𝐝𝐢𝐧𝐠 𝐃𝐞𝐜𝐢𝐬𝐢𝐨𝐧:  The DAB's decision is considered a binding decision on both parties and must be implemented immediately. However, each party may submit a notice of dissatisfaction regarding the DAB's decision within 28 days, and failing such notice, the DAB's decision becomes final and binding.   ◾ 𝐀𝐭𝐭𝐞𝐦𝐩𝐭𝐞𝐝 𝐀𝐦𝐢𝐜𝐚𝐛𝐥𝐞 𝐒𝐞𝐭𝐭𝐥𝐞𝐦𝐞𝐧𝐭:  Upon receiving a notice of dissatisfaction, both parties must attempt to resolve the dispute amicably.   ◾ 𝐂𝐨𝐦𝐦𝐞𝐧𝐜𝐞𝐦𝐞𝐧𝐭 𝐨𝐟 𝐀𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐢𝐨𝐧: If no amicable resolution is achieved, arbitration may commence after the fifty-sixth day from the date of notification of dissatisfaction.   ◾ 𝐀𝐫𝐛𝐢𝐭𝐫𝐚𝐭𝐢𝐨𝐧 𝐏𝐫𝐨𝐜𝐞𝐝𝐮𝐫𝐞:  To read previous Posts and Articles, it is my pleasure to use the below Hashtag or follow my LinkedIn Page. Regards, Eng. Mohamad Faiad #mohamad_faiad #Claims #Fidic

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Insisting on keeping a clause that everyone acknowledges doesn't apply to the specific case is like ordering coffee in a takeaway cup, then sitting at the bar and drinking it there. Any objection? #contractdrafting #contractnegotiation #contractmanagement

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