FIDIC (Red book): Contractor's entitlement to costs for the period of contractor's concurrent delays?

FIDIC Contracts Construction Contract Red Book
1

There were Employer’s delays due to the non-availability of a portion of the site covered by obstructions for the contractor to proceed with the works as planned and after the assessment of the Contractor’s claim, submitted only for extension of time, the Engineer granted due extension of time for the period of impact the Employer’s event had on the completion date.
Subsequently, just before the closure of the closure of the completion date, the Contractor claimed the costs for the period of extension of time granted, although there were contractor’s concurrent delays, by delaying works, on his own, within the available site, even until the part site in obstruction was handed over to the Contractor after evicting the obstructions, thus confirming that there was no waiting of the contractor’s resources due to the Employer’s event. The contractor had complied with the contract provisions under Sub-Clause 20.1 by giving the due notices for seeking extension of time and also showing an intent of claiming costs. But, subsequent details for the cost estimates were not provided within the time frame stipulated under Sub-Clause 20.1. The cost claim was made almost at the closure of the completion date.

My questions are:

  1. Is the contractor entitled to any costs for the idle resources recorded during the period of the Employer’s event (some resources were shown as idle during that period of Employer’s event, for unknown reasons, may be due to contractor’s slowing down the works on certain activities)?
  2. Despite the concurrent delays, can the contractor be paid time related costs for that period of contract prolongation to compensate the contractor’s additional costs due to site and head office overheads?
2

The recovery of time related costs during periods of concurrency is a very complicated topic with many different threads some of which are highly dependent on the law applicable to the project.

My first question is always whether there is in fact concurrency. In my view true concurrency is rare but you have to look very carefully at the facts to decide this point.

Looking then at your two questions and, I am afraid, with very many caveats as to the facts, the applicable law etc, the general position is as follows

  1. If the idling of resource has been caused by the unavailability as the Employer Event then yes recovery should be possible. So if, for example, the contractor has a piling rig idle because it cannot gain access due to obstructions then that cost will probably be recoverable unless it would have been reasonable to off hire and then re-hire later. If unrelated resource was idle or could have been utilised elsewhere if the contractor had redeployed it then the cost will not be recoverable as there contractor should have mitigated the loss. This issue will, I emphasise, be very heavily dependant on fact however.

  2. Under English law the usual position is no. Recovery of the general, site-wide prelim costs is not recoverable during concurrency. However, first, as above, you need to be clear if there is genuine concurrency. Then , you need to look at whether what is perceived as “site-wide” cost is actually more location based and that will be driven by the facts of the project.

I am afraid there is not a simple answer here