The Contractor is entitled, subject to Sub Clause 20.1 (Contractor’s Claims), an Extension of Time in the event Completion is delayed for purposes of Sub Clause 10.1 (Taking over of the Works and Sections) by causes listed in Clause 8.4. This Clause 8.4 includes the event of:

“(c) unforeseeable shortage in the availability of personnel or Goods caused by epidemic or governmental actions.”

A Contractor who considers himself to be entitled to an extension of Time for Completion for reasons in Clause 8.4, must give timely notice of the same to the Engineer in accordance with Sub Clause 20.1.

(See below for provisions relating to Clause 20.1).

If the Contractor considers himself to be entitled to any extension of the Time for Completion and/or any additional payment under any Clause of the said Conditions, the Contractor is required to give notice to the Engineer describing the event or circumstance giving rise to the claim.

The notice must be given as soon as practicable and no later than 28 days after the Contractor became aware, or should have become aware, of the event of circumstance.

The Clause requires that the Contractor submits any other notices which are required by the Contract, and supporting particulars for the Claim, all as relevant to such event or circumstance.

Within 42 days after the Contractor became aware (or should have become aware) of the event or circumstance giving rise to the Claim, or within such other period as may be proposed by the Contractor and approved by the Engineer, the Contractor must send to the Engineer a fully detailed claim which includes full supporting particulars of the basis of the claim and the extension of the time and/or additional payment claimed.

The Clause requires that, if the event or circumstance giving rise to the claim has a continuing effect:

(a) to consider the fully detailed claim submitted as required above as an interim;

(b) the Contractor to send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and other details that the Engineer may reasonably require; and

(c) the Contractor to send a final claim within 28 days after the end of the effects resulting from the event or circumstance, or such other period proposed by the Contractor and approved by the Engineer.

Contractors must ensure that they provide the Engineer with notice of their inability to complete work due to prevailing global conditions arisen as a result of the pandemic:

- within 28 days after the Contractor became aware, or should have become aware of the event / circumstance; and

- a fully detailed claim within 42 days after the Contractor became aware (or should have become aware); and

- given the continuing nature of the pandemic, the Contractor must also ensure that interim claims at monthly intervals are sent to the Engineer setting out the details of the accumulated delay and/or amount claimed and further particulars as reasonably required by the Engineer.

It is also essential that, as required under the said Clause, the Contractor keeps all such contemporary records as may be necessary to substantiate any claim, either on Site or at another location acceptable to the Engineer.

If and to the extent that any of the risks listed in Clause 17.3 results in loss or damage to the Works, Goods or Contractor’s Documents, the Contractor must promptly give notice to the Engineer and must further rectify this loss or damage to the extent required by the Engineer.

The Clause further provides that if the Contractor suffers a delay and or incurs Cost from rectifying this loss or damage, the Contractor must give a further notice to the Engineer and will be entitled, subject to Sub Clause 20.1 (Contractor’s Claims referred to above) to, “(a) an extension of time for any such delay, if completion is or will be delayed under Sub Clause 8.4 (Extension of Time for Completion);”

The Contractor is entitled to an extension of time under Clause 8.4 (Extension of Time for Completion), for an event falling within the Employer’s Risks (See Clause 17.3), as a result of which the Contractor has suffered a delay or incurred Costs in rectifying the loss or damage.

Notices

The Contractor must ensure that the notices for the Extension of Time are sent in accordance with Clause 20.1.

A ‘Force Majeure’ event under this Clause, is defined to include an exceptional event or circumstance:

(a) which is beyond a Party’s control;

(b) which such Party could not reasonably have provided against before entering into the Contract;

(c) which, having arisen, such Party could not reasonably have avoided or overcome, and

(d) which is not substantially attributable to the other Party

The Clause further provides a non-exclusive list of events that may amount to events of Force Majeure. However, pandemics do not form a part of the same.

The World Health Organization has, in its official statements, identified COVID 19 as an infectious disease caused by a newly discovered coronavirus, with no specific vaccines or treatments available at present.

Further, the rapid outbreak of the virus, now declared a pandemic, has infected a large population in over 190 countries globally (at the time of writing), and resulted in many extreme and unprecedented actions to be taken by Governments, including the closure of national borders. This has prevented the transportation of supplies and travelling of persons, which are all essential to the timely completion of construction projects.

These events, if applicable to a Contractor, may therefore fall within the definition of an exceptional event that is beyond the control of the Contractor, which the Contractor could not have reasonably expected, and which having arisen, the Contractor could not have reasonably avoided.

Clause 19.2 requires notice to be provided of the occurrence of a Force Majeure event (See below). The Contractors must ensure that they fall within the purview of this Clause prior to engaging in claims under a Force Majeure Clause. They must gather and store as much information as possible to substantiate their Claim, when needed in the future.

The Contractor must bear in mind that it has an obligation at all times to use all reasonable endeavors to minimize any delay in the performance of the Contract as a result of Force Majeure (Clause 19.3).

If the Contractor is prevented from performing any of his obligations under the Contract by the occurrence of a Force Majeure event, then the Contractor must give the Employer notice of the event or circumstances constituting the Force Majeure. The Contractor must also specify the obligations, the performance of which has or will be prevented as a result thereof.

The notice must be given 14 days after the Contractor became aware, or should have become aware, of the relevant event or circumstance constituting Force Majeure.

The Contractor is required to provide 14 days’ notice after the Contractor became aware or should have become aware of the occurrence of a Force Majeure event.

Having given notice, the Contractor will be excused from performance of such obligations, as long as the Force Majeure event prevents the Contractor from performing them.

If the Contractor is prevented from performing any of its obligations under the Contract by Force Majeure, of which notice has been given under SubClause 19.2 [Notice of Force Majeure], and suffers delay and/or incurs Cost by reason of such Force Majeure, the Contractor will be entitled, subject to Sub-Clause 20.1 [Contractor's Claims discussed above] to:

(a) an extension of time for any such delay, if completion is or will be delayed, under SubClause 8.4 [Extension of Time for Completion discussed above]; and

(b) if the event or circumstance is of the kind described in sub-paragraphs (i) to (iv) of SubClause 19.1 [Definition of Force Majeure] and, in the case of subparagraphs (ii) to (iv), occurs in the Country, payment of any such Cost.

As highlighted in this Clause, the Parties must note that the recent pandemic, being an event that does not form a part of the list of examples of Force Majeure events listed in Clause 19.1, does not entitle the Contractor to a claim for payment of Costs. Therefore, the Contractor can only require an Extension of Time in the present circumstance.

If the Contractor falls within an ‘exceptional events or circumstance’ specified as a Force Majeure above, the Contractor must:

(a) provide notice of the occurrence of a Force Majeure event within 14 days of occurrence thereof (Clause 19.2); and

(b) provide notice under Clause 8.4 requiring an Extension of Time for Completion. Such notice must comply with requirements set out in Clause 20.1 discussed above.

If the execution of substantially all the Works in progress is prevented for a continuous period of 84 days by reason of Force Majeure of which notice has been given under Sub-Clause 19.2 (Notice of Force Majeure), or for multiple periods which total more than 140 days due to the same notified Force Majeure, then either Party may give to the other Party a notice of termination of the Contract.

In this event, the termination will take effect 7 days after the notice is given, and the Contractor is required to proceed in accordance with Sub-Clause 16.3 (Cessation of Work and Removal of Contractor's Equipment).

The Contract Price can be adjusted to take account of any increase or decrease in Cost resulting from a change in Laws of the Country (including the introduction of new laws and repeal or modification of existing Laws) or in the judicial or official governmental interpretation of Laws, made after the Base Date, which affect the Contractor in the performance of obligations under the Contract.

The Contractor who suffers (or will suffer) a delay and/or include additional Cost as a result, must give notice to the Engineer and will be entitled subject to Clause 20.1 to:

(a) an extension of time for such delay, if completion is or will be delay under Clause 8.4 (Extension of Time for Completion); and

(b) payment of any such Cost, which must be included in the Contract Price.

If the Contractor can identify and show that changes in law or regulations imposed as a result of the pandemic has impacted its work and resulted in delays, the Contractor may:

- request for an extension of time under Clause 8.4; and

- require payment of such additional cost incurred as a result thereof.

Contractor’s Claims

In this Contract, an 84 day period is provided for the Contractor to send a fully detailed claim with supporting particulars (as opposed to the 42 day period provided in the FIDIC Red Book (1999)).