FIDIC: Under FIDIC, If contemporary record not available , how to evaluate a prolongation claim?

FIDIC require contemporary record to evaluate a claim and is to be submitted within 28 days of the happening of delay event .The employer has already approved extension of time in principle and advice is needed how to substantiate the claim now.Can contemporary record be prepared retrospectively on the basis of payments made and expenses actually recorded for the machinery.What is its legal position?


There are quite a few issues here so I will try and break it down a bit.

The 28 day time period (assuming you are on a standard 1999 FIDIC Red Book) applies to giving notice of the delay. That does not require anything other than a description of the event. From the date of the notice the Contractor keeps records necessary to substantiate the claim. The Engineer should really check they are adequate and state fi he wants more.

You cannot create a contemporary record retrospectively, it will not then be contemporaneous. What you can do is retrospectively analyse contemporary documents to demonstrate or explain the delay and its cause. This would be part of submitting a fully detailed claim under 20.1

It is unlikely that records of expenses or payments made will provide suitable material for this analysis. You should be looking for site diaries, meeting minutes, correspondence, progress reports and photographs. Even labour returns can be helpful in support but you need to identify the cause of the event and then its effect

The Employer has no role in making either an “in principle” or final decision under the contract, that is for the Engineer.

I hope that gives an overview but the detail will inevitably be very important to this question.