The word "claim" makes people on construction projects uncomfortable. Sometimes they go crazy, emotional. It suggests a dispute, an adversarial relationship, a project that has gone wrong. The Employers are particularly sensitive, especially government institutions, because it suggests finger-pointing within the organisation that usually perceives itself as impeccable. In reality, a FIDIC Claim is simply the mechanism by which a Contractor, or an Employer, exercises a contractual entitlement to additional time, additional money, or both. Entitlement exists in the contract from day one. Whether you can recover it depends almost entirely on how well you have documented the events that give rise to it.
This guide is not about how to prepare a Claim document. It is about how to build the foundation that makes a Claim possible — the records, the notices, and the discipline of contemporaneous documentation that must begin before any claimable event occurs.
"A claim is not built at the end of a project. It is built day by day, from the first daily log entry to the last delay analysis. By the time you are preparing the claim document, you are assembling, not creating."
Three elements that must all be present
A Claim under FIDIC requires three things: entitlement, causation, and quantum. All three must be established. A Claim that proves entitlement and causation but cannot demonstrate quantum may result in a determination of nil or a nominal sum. A Claim that has strong records but lacks a clear contractual basis will fail on the first element.
Every Claim must have a contractual basis — a specific Sub-Clause that gives rise to the entitlement. Under FIDIC 1999 Red Book, the most common bases are: Sub-Clause 1.9 (delayed drawings or instructions), Sub-Clause 4.12 (unforeseen physical conditions), Sub-Clause 8.4 (Extension of Time grounds), Sub-Clause 13.1–13.3 (variations), Sub-Clause 16.1 (suspension), Sub-Clause 17.4 (Employer's risks), and Sub-Clause 19.4 (force majeure consequences).
Under FIDIC 2017 Red Book, the most frequently invoked bases are: Sub-Clause 1.9 (delayed drawings or instructions — same number as 1999, very common source of Claims), Sub-Clause 8.5 (Extension of Time grounds), Sub-Clause 8.6 (delays caused by authorities), Sub-Clause 13.1–13.3 (variations), Sub-Clause 16.1 (suspension), Sub-Clause 17.4 (Employer's risks), and Sub-Clause 18.4 (consequences of exceptional events). Under FIDIC 2017 Yellow Book, Sub-Clause 1.9 covers a different subject — Errors in the Employer's Requirements — specific to design-build projects. Know which Sub-Clause applies and which edition and book governs your contract before you draft the Notice.
It is not enough to show that a delay occurred. You must show that a specific event — for which the contract places risk on the Employer — caused that delay. In a delay claim, this means demonstrating the critical path impact of the event: which activities were affected, how they link to the completion date, and why the delay could not have been mitigated. Causation is the first step where most claims are won or lost in technical review (assuming that NoC was given in time).
Quantum must be calculated on the basis the contract prescribes. For EOT, this is usually the delay to the critical path. Often, a particular methodology for the delay analysis is defined through the Particular Conditions of Contract. For additional cost, it is the actual additional cost incurred — labour, plant, materials, preliminaries, and in some cases finance charges and loss of productivity — with appropriate overhead and profit where the contract allows. You cannot claim costs you cannot prove were incurred. In simple words, it is like asking your employer to reimburse you for your travel expenses. Of course, you will have to provide the receipts for the transportation ticket, meal, and accommodation. This is no different. Records are the proof.
The most dangerous clause for a contractor who is not paying attention
Under Sub-Clause 20.1 of the FIDIC 1999 Red Book, the Contractor must give Notice of any Claim within 28 days of becoming aware — or when they should have become aware — of the event or circumstance giving rise to the Claim. If the Notice is not given within 28 days, the Claim is barred. The Contractor loses the entitlement, regardless of the merits.
This is a condition precedent. Courts and arbitral tribunals in most jurisdictions have upheld it. The 2017 edition contains a similar provision in Sub-Clause 20.2.1, and while the 2017 wording gives slightly more flexibility in some circumstances, the fundamental obligation remains the same.
However, it should be kept in mind that some jurisdictions do not always uphold this time bar, and it can be bypassed. It is important to keep in mind that FIDIC is overruled by the contract Governing Law.
In practice, the 28-day clock starts when the event occurs or when a reasonable contractor in the same position would have become aware of it — not when the financial impact becomes clear. This is the point where a lot of contractors are making mistakes. They give Notice of Claim only when they start to bleed. It is sometimes because they do not want to ruin the relationship with the Employer, or they did not take the event seriously, or some other reason. A design change instruction received on day one starts the clock on day one, even if the cost consequences are not apparent until a few weeks later.
Another reason why many contractors delay giving notice is that they want to quantify the claim before submitting it. This is backwards. The notice is about the event, not the quantum. Give notice immediately when you become aware of any event that may give rise to an entitlement. The quantum can follow later — Sub-Clause 20.1 gives you 42 days (FIDIC 1999) or 84 days (FIDIC 2017) to submit the fully detailed claim after giving notice. Missing the 28-day notice deadline cannot be remedied. However, FIDIC 2017 gives a kind of a second chance when submitting a fully detailed claim (GCC 20.2.4) to explain the delayed Notice of Claim, as well as to amend it with "a statement of the contractual and/or other legal basis of the Claim".
What records you need and how to keep them
Contemporary records are records created at the time of the event they describe — not reconstructed later from memory. This distinction matters enormously in a dispute. A site diary written on the day of an event is strong evidence. A site diary reconstructed from memory six months later is almost worthless.
The records you need fall into three categories:
Site diaries, meeting minutes, photographs, correspondence, instructions received, RFIs submitted and responses received. If in doubt, just keep all the documents and your Contract Manager/Claims Expert will decide later whether to use them or not. These establish the factual record. Every instruction from the Engineer should be acknowledged in writing. Every event that affects progress — whether or not you think it gives rise to a claim — should be recorded in the site diary on the day it occurs.
Labour allocation sheets, plant utilisation records, material delivery records, productivity records, programme updates. These establish the quantum of delay and cost. If you cannot show how many men were standing idle on a particular day because of an Employer-caused event, you cannot claim the cost of that idling. Allocate your resources to specific activities in your records — generic entries are difficult to use in a Claim.
Monthly Programme updates, look-ahead programmes, progress photographs. These establish the delay analysis foundation. Without a baseline Programme and regular updates, it is very difficult to demonstrate critical path impact. Update the Programme monthly as a minimum — weekly on complex projects. Do it for yourself, then decide whether you will submit it or not every month. Record the reason for any deviation between planned and actual progress.
The issue that complicates almost every delay claim
Concurrent delay — where both an Employer-caused event and a Contractor-caused event are delaying the project at the same time — is one of the most contested areas in construction disputes. The FIDIC contracts do not expressly address it, and the approach taken by courts and tribunals varies between jurisdictions.
The most widely adopted approach in international arbitration is the "but for" test combined with the SCL Protocol's guidance: if an Employer-caused delay would have delayed the completion date even in the absence of the concurrent Contractor-caused delay, the Contractor is entitled to an EOT. But they may not be entitled to additional cost for the concurrent period.
The practical implication for record-keeping is this: if there is a period of concurrent delay on your project, you need records that clearly distinguish between the Employer-caused events and the Contractor-caused events — which activities each was delaying, at what time, and for how long. Without that granularity, the concurrent delay argument can absorb your entire EOT entitlement.
What good practice looks like before a claim is needed
A project that is being administered well — with daily site diaries, indexed correspondence, a live programme, and prompt notices for any event that may give rise to entitlement — is already a Claim-ready project. The Claim, if it ever needs to be formally submitted, is largely assembled from existing records.
A project that has been administered poorly — with irregular records, unlogged instructions, notices given late or not at all — must reconstruct its history when a Claim becomes necessary. That reconstruction is expensive, time-consuming, and often incomplete. The result is a weaker Claim presented later and at greater cost than it needed to be.
- Give notice within 28 days of any event that may give rise to a claim. It is very simple — when in doubt, give notice. A notice that turns out to be unnecessary costs nothing. A missed notice may bar a legitimate entitlement. Don't worry that you will ruin the relationship with the Employer. What you can do is tell them verbally, prepare them, and simply explain your reasons. Then submit it the next day officially. From personal experience, if the party on the other side of the table is reasonable, they will understand and appreciate the approach. The Notice of Claim is nothing more than a warning that you may suffer damage. A good Employer will understand the risk and try to minimise the damage.
- Complete the site diary every day. Record events that might affect the Claim even if their significance is not yet clear.
- Photograph everything — site conditions, executed work, weather events, access restrictions, standing plant. Date-stamp every photograph.
- Log every Engineer instruction and assess it for variation entitlement within the period required by the contract.
- Update the Programme monthly. Record the reason for any deviation. Keep all historical versions.
- Allocate resources specifically — by activity, by location — so that idle time and loss of productivity can be attributed to specific events.
- Keep all incoming and outgoing correspondence in an indexed register. Never lose a document.
The earlier you assess the position, the stronger the claim.
It is like playing chess — you need to think several moves in advance and have a good strategy. If you are managing a project where events are occurring that may give rise to a claim, I can help assess your entitlement, review your records, and structure the notice and claim in a way that protects your position.
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