Extension of Time, and the 28 day notice that protects it

The giga-projects driving Vision 2030 run on programmes measured in years, and delay is a constant. On a FIDIC Red or Yellow Book contract, the Contractor entitlement to more time lives in Clause 8, but the entitlement is gated by a notice requirement that catches out surveyors who focus on the delay analysis and forget the calendar.

The entitlement lives in Clause 8

Under Sub-Clause 8.4, the Contractor is entitled to an Extension of Time for the completion of the Works where completion is or will be delayed by defined causes: Variations, exceptional conditions, delays caused by the Employer, and others the Contract lists. The Engineer assesses the delay and grants the time. Without an Extension of Time, the completion date stands, and the Contractor is exposed to delay damages for finishing after it.

The 28 day notice is the gate

Under Sub-Clause 20.1, the Contractor has to give notice of a claim, including a claim for Extension of Time, within 28 days after it became aware, or should have become aware, of the event or circumstance. This is the condition precedent. If the notice is not given within 28 days, the entitlement to Extension of Time and to additional payment can be lost entirely, however strong the underlying delay.

Read that carefully, because it is the trap. The strength of the delay analysis is irrelevant if the notice is late. The 28 days runs from awareness of the event, not from the point the delay is fully understood or quantified.

Notice first, detail later

The notice does not need the full delay analysis attached. It needs to be given in time. The detailed particulars follow, but the notice within 28 days is what preserves the right. A surveyor who waits to assemble a complete claim before notifying is protecting the quality of a claim that may no longer exist.

• Identify the event promptly. The clock starts on awareness, so log delay events as they arise.
• Notify within 28 days. A short, clear notice that identifies the event and reserves the position.
• Then quantify. Build the delay analysis and the time sought once the entitlement is safe.

The discipline

On a project of this scale, delay events arrive faster than any one surveyor can fully analyse them. The answer is to separate the two duties. Notify inside 28 days to keep the entitlement alive, then do the analysis at the pace the evidence allows. The Extension of Time you win is the one you protected with a notice on time, not the one you built perfectly but too late.