Facing the COVID-19 virus, we should all help in any way we can.

I can do a little by providing you with a graphic presentation of the FIDIC 1999 clause regarding Force Majeure. This is probably helpful for Employers, Engineers, Contractors and Subcontractors. Have a look at the short movie here below (3 minutes).

Short video presentation of FIDIC 1999 clause on Force Majeure

Important reminders about Force Majeure claims

Please be reminded that the time is now to take the following actions:

– To minimize the delay with reasonable endeavors and to communicate about your actions;

– To collect the data and the causation: what specific obligations/performance has been prevented by FM? What concrete consequences of corona for your specific case have impacted the schedule and to what extent?

– What are the notification requirements in your contract?

– How should you formulate your claim?

– Are there any time-bars?

– Can the contract be terminated and, if yes, when?

– What payments will be due in case of termination?

Conclusions

Blindly considering that you will get that extension of time anyway is a big mistake!

Especially do not forget to notify!

If you are not sure how to do all this, consider getting some professional advice. Share your comments below and don’t hesitate to contact me in case of doubt.

About AfiTaC

AfiTaC.com is the blog on commercial and contractual subjects for the Project Businesses (Construction, Infrastructure, Oil & Gas, Power & Renewable, Water Supply & Sanitation, etc). Its objective is to stimulate reflection, learning, convergence to balanced contracts and positive dispute resolution. You can subscribe to our newsletter by writing to “newsletter@afitac.com”. You can also connect to our LinkedIn page. Engagement with the readers is what keeps us going. So, don’t hesitate to exchange with us by commenting here below, liking our publication on LinkedIn and writing to us “info@afitac.com”. 

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Jan Bouckaert

Jan Bouckaert has more than 20 years of worldwide experience in negotiation of complex construction, renewable energy, power and infrastructure projects. He is also specialized in contract management, risk management and alternative dispute resolution. During Jan’s career path, he lived in France, Belgium, Egypt, India and Portugal and worked for GE Renewable Energy, Alstom Hydro, Besix/Six Construct. He is a Civil Engineer from the University of Leuven (Belgium) and has an MBA from ISEG (Portugal). He speaks fluently English, French, Portuguese and Dutch. Jan is the founder of AfiTaC, a company giving advice on international tenders and contracts. Be welcome to connect on LinkedIn: https://www.linkedin.com/in/afitac/

4 Comments

DINUSHIKA WEERAWARDANA · 31 March 2020 at 13 h 57 min

Thank you for this presentation. It was easy to understand the key facts in an interesting manner.

I would like to clarify whether it is acceptable to give one notice informing that the notice is to inform of the Force Majeure event (as per 19.2) and it is to notify the Employer that the Contractor wishes to claim EOT (actions as per 20.1 and 8.4)? because in the COVID2019 event, at the time of issuing the notice of FM, it was understood and the Contractor was aware that the event was going to cause delays. Hence, I presume it is acceptable to mention all these details in one letter but wishes to clarify. (we use FIDIC 1999 Silver Book)

    Jan Bouckaert · 2 April 2020 at 8 h 52 min

    Thank you for your feedback. Glad you found the way of presenting interesting (which is part of our overall training course, to present them in a more fresh way – combining visual presentations and feedback of experience).
    Yes, it is good to give such a notice under Sub-Clause 20.1, highlighting the upcoming claims under Sub-Clause 8.4 [Extension of Time for Completion] and Clause 19 [Force Majeure]. Personally, depending on the country you are working in, I would also add Sub-Clauses 8.5 [Delays Caused by Authorities] and 13.7 [Adjustment for Changes in Legislation].

      Dinushika · 4 April 2020 at 12 h 03 min

      Currently, there are situations where curfew has been imposed or construction works has been requested to be halted by the Employers due to Government decisions. Would these actions come under 13.7? These can be classified as decisions or actions taken based on existing laws?

        Jan Bouckaert · 4 April 2020 at 15 h 47 min

        For the application of the local laws, I would kindly refer you to consult a local lawyer. On the principle however, I believe Government decisions to halt construction sites can come under Sub-Clause 13.7 [Adjustment for Changes in Legislation]. One can image that, for example, costs are recoverable in case protection measures are required as a consequence of a Government decision to preserve the site during the suspension. However, it remains to be seen whether costs for stand-by of permanent employees could be recovered (which would not be the case under Force Majeure).

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