FIDIC Notices and Time Bars: Clause Cheat Sheet
The time bars that decide most FIDIC claims sit in Clause 20, not in the clauses that create your entitlement. Clause 1.9, 4.12, 8.5 and 13 tell you what you are entitled to. Clause 20 tells you how quickly you have to say so, and what happens if you do not.
That structure is the most useful thing to hold in your head when you work through a FIDIC contract. An entitlement with no deadline written next to it is usually still on the Clause 20 clock of 28 days, with one important exception for Variations, covered in Note 5. In the 1999 editions the point is explicit on the face of the clause: Sub-Clause 8.4 begins by making the extension of time entitlement "subject to Sub-Clause 20.1", as quoted in Jeremy Glover's analysis of the Sub-Clause 20.1 time bar. FIDIC's own principal drafter used the same formula throughout his summary of the 1999 claims and adjustment provisions.
The Table
Deadlines are for the 2017 Second Edition unless the row says otherwise.
| Clause | What triggers it | Deadline | Who gives it | If missed |
|---|---|---|---|---|
| 20.2.1 Notice of Claim | Event or circumstance giving rise to a claim for additional payment, reduced Contract Price, extension of the DNP or extension of time under 20.1(a) or 20.1(b) | 28 days from awareness | The claiming Party, Employer or Contractor | Claim is time barred, subject to the deeming provision in 20.2.2 and the Engineer's review under 20.2.5 |
| 20.2.2 Engineer's notice that a Notice of Claim is late | Engineer considers the Notice of Claim was given outside the 28 day period | 14 days | Engineer | The Notice of Claim is deemed valid, so the time bar falls away |
| 20.2.2 Other Party's challenge to a deemed valid Notice | Disagreement with a Notice of Claim that has become deemed valid | No period stated | The other Party | Not stated |
| 20.2.4 Fully detailed Claim | Same event or circumstance | 84 days from awareness | The claiming Party | Limited bar only. The Notice of Claim lapses only where the statement of the contractual or legal basis under 20.2.4(b) was never included |
| 20.2.4 Engineer's notice on a missing basis statement | No statement of contractual or legal basis by day 84 | 14 days | Engineer | The original Notice of Claim becomes valid again |
| 20.1(c) Claims for other entitlement or relief | Contract interpretation, ambiguity, discrepancy, a declaration, or anything not about time or money | No 28 day time bar applies | Either Party | Not applicable |
| 3.7 Agreement | Claim or other matter referred for agreement or determination | 42 days to reach agreement | Engineer, with the Parties | Engineer gives notice of the failure to agree and proceeds to determine |
| 3.7 Determination | Failure to agree | A further 42 days | Engineer | Engineer is deemed to have given a determination rejecting the Claim |
| 3.7.5 Notice of Dissatisfaction | Engineer's determination, including a deemed rejection | 28 days | The dissatisfied Party | The determination becomes final and binding |
| 21.4.1 Referral to the DAAB | A Notice of Dissatisfaction has been given | 42 days from the NOD | The referring Party | The NOD is deemed no longer valid, so the dispute is effectively barred. No provision allows the DAAB to excuse a late referral |
| 8.4 Advance Warning | Known or probable future events that may delay the Works, increase the Contract Price, adversely affect Contractor's Personnel or affect the performance of the completed Works | Each Party "shall advise" the other. No period stated | Each Party, and the Engineer | No express sanction is stated in the clause |
| 13.3.1 Variation particulars | Receipt of a Variation instruction | 28 days | Contractor | No time bar on either extension of time or additional payment for the Variation, as stated in 13.1.1 and 8.5(a) |
| 1999 20.1 Notice of claim | Event or circumstance giving rise to a claim | 28 days from awareness | Contractor | Time for Completion not extended, no additional payment, Employer discharged from all liability in connection with the claim |
| 1999 20.1 Fully particularised claim | Same event | 42 days from awareness | Contractor | See Note 2. Treated as a condition precedent by some tribunals and not by others |
| 1999 20.1 Engineer's response | Receipt of a fully detailed claim | 42 days | Engineer | Not stated |
| 1999 20.1 Final claim | End of the effect of the claim event | 28 days, unless agreed otherwise | Contractor | Not stated |
Sources for the 2017 rows: the Clause 20, Clause 3.7, Clause 21, Clause 8.4 and Clause 13 figures are taken from Key Changes in the 2017 FIDIC Red Book, a presentation by James Perry, a FIDIC Accredited International Trainer and FIDIC President's List Adjudicator, delivered at an Asian Development Bank event. The 1999 rows are from Glover on the Sub-Clause 20.1 time bar, cited above. Both are secondary sources. Check the numbers against your own contract and its Particular Conditions before you act on them.
Note 1: Clause 20.2.1 and the Twenty-Eight Day Notice
This is the clause that costs contractors the most money, and the mechanism is unforgiving by design.
The 28 day period runs from the date the claiming Party became aware, or should have become aware, of the event or circumstance. It does not run from the date the loss crystallises or the quantum becomes calculable. A Variation instructed in week one that causes delay first visible in week ten started the clock in week one.
Two points are worth holding separately. First, the 2017 editions apply the notice and time bar provisions to the Employer as well as the Contractor, including Employer claims for delay damages. The clause is no longer a one way street. Second, a Notice has to be recognisable as one. FIDIC's 2017 drafting requires a Notice to state that it is a Notice, and Sub-Clauses 4.20 and 8.3 confirm that neither a programme nor a progress report is a substitute for a formal Notice, as Glover sets out in his paper on how the 2017 contract deals with time.
The 2017 editions also build in two escape routes that did not exist in 1999. Under 20.2.2 the Engineer must give notice within 14 days if it considers the Notice of Claim was late, and if the Engineer does not, the Notice of Claim is deemed valid. Under 20.2.5 the Engineer must go on to determine the merits and review any disagreement about the time bar, and may take into account the extent of prejudice to the other Party and any evidence of that Party's prior knowledge of the event. The Engineer cannot simply stop at a finding that the claim is time barred.
None of that is a reason to notify late. It is a reason to notify on time and to know what arguments exist if you did not.
Note 2: Clause 20.2.4 and the Eighty-Four Day Detailed Claim
The 84 day deadline for the fully detailed Claim is the most misunderstood provision in the 2017 claims procedure, because the bar attached to it is narrow rather than general.
Missing the 84 days does not by itself extinguish the claim. The Notice of Claim lapses only in one circumstance: where the statement of the contractual or legal basis of the Claim required by 20.2.4(b) was never included in the detailed Claim or in any reiteration of it by day 84. A detailed Claim that is late but which contains the basis statement is not caught by this bar. A detailed Claim submitted on time but with no statement of its contractual or legal basis is.
The practical consequence is that the single most important line in a detailed Claim is the one identifying the clause and the legal basis relied on. Everything else can be developed. That line protects the Notice.
As with the initial notice, the Engineer must give a time bar notice if the basis statement is missing at day 84, and if the Engineer fails to do so within 14 days the original Notice of Claim becomes valid again.
In the 1999 editions the equivalent figure is 42 days rather than 84, and its status is less settled. Glover records that the fully particularised claim is due within 42 days of awareness and that the Engineer is to respond within 42 days of receiving it. Whether the 42 day requirement operates as a condition precedent in its own right has been argued, and the position has not been consistent across tribunals. Treat it as a hard deadline and do not rely on an argument that it is merely directory.
Note 3: Clause 1.9
Under the 1999 editions the content of Sub-Clause 1.9 differs between books, which matters if you work across the suite. In the Construction contract, the Red Book, 1.9 is Delayed Drawings or Instructions, and the Contractor may claim extension of time, Cost and reasonable profit where the Engineer fails to issue a drawing or instruction within a notified reasonable time. In the Plant and Design-Build contract, the Yellow Book, 1.9 is Errors in the Employer's Requirements, and the Contractor may claim extension of time, Cost and reasonable profit for an error that was not previously discoverable. Both of those are from FIDIC's own summary by Peter Booen, FIDIC's principal drafter, linked above.
Check the numbering and wording of Sub-Clause 1.9 in your own edition and its Particular Conditions. The commercially important point holds in either edition: the entitlement under 1.9 is a claim, so it runs through the Clause 20 procedure and the 28 day notice clock applies to it.
Note 4: Clause 4.12 and Clause 8.4 or 8.5
Clause 4.12, Unforeseeable Physical Conditions, is where the Clause 20 structure bites hardest, because the entitlement and the deadline are in different places. Under the 1999 editions, Booen's summary records that the Contractor may claim extension of time and Cost where it encounters physical conditions which are Unforeseeable. Note what is absent: unlike 1.9, 2.1 and several other provisions, 4.12 carries no entitlement to reasonable profit. The notice obligation and the time bar come from Clause 20, not from 4.12 itself.
The extension of time clause moved between editions and this catches people out. In the 1999 editions, Sub-Clause 8.4 is Extension of Time for Completion and 8.5 is Delays Caused by Authorities, per Booen. In the 2017 editions, 8.4 is Advance Warning and the extension of time provisions sit at 8.5. If you are reading a 2017 contract with 1999 clause references in your head, you will look for the extension of time provisions in the wrong place.
Advance Warning at 2017 Sub-Clause 8.4 is a genuine obligation, expressed as each Party shall advise the other of known or probable future events, but no sanction for failing to give it is stated in the clause. This is a real difference from NEC, where the compensation event assessment can be affected by whether an early warning was given. Under FIDIC the consequence of silence is practical rather than contractual: an advance warning on the record is one of the things the Engineer may weigh under 20.2.5 when considering prior knowledge.
Note 5: Clause 13 and Clause 14
Clause 13 contains the most useful exception in the 2017 claims regime. Where the Contractor receives a Variation instruction, it has 28 days to submit detailed particulars under 13.3.1, but there is no time bar on either the extension of time or the additional payment arising from that Variation, and this is stated expressly in 13.1.1 and in 8.5(a). In other words, the Clause 20 notice regime does not gate your Variation entitlement in the way it gates a 4.12 claim. Glover makes the same point, noting that there is no requirement for the Contractor to follow the claims procedure in respect of the entitlement to extension of time for Variations. This is worth knowing precisely because the instinct trained by Clause 20 is to assume everything is time barred.
The 2017 editions also give the Contractor two grounds to refuse a Variation instruction: where the varied work is Unforeseeable in comparison with the Contract Works, and where it would affect the Contractor's ability to comply with its health and safety or environmental obligations.
Clause 14 payment periods are not tabulated on this page. Sources differ on what starts the 56 day payment clock in the 2017 editions, whether receipt of the Statement or issue of the Interim Payment Certificate, and the difference can be up to 28 days. Read 14.6, 14.7 and 14.9 in your own contract, write the day counts and their trigger dates on the front of the file, and check the Particular Conditions, because the payment periods are among the most frequently amended provisions in any FIDIC contract. Two points are well supported: Sub-Clause 14.3 applications for interim payment must be supported by the relevant progress report, which makes current programme and progress information a precondition to payment, and under the 1999 editions Sub-Clause 14.8, Delayed Payment, entitles the Contractor to financing charges where it does not receive payment in accordance with Sub-Clause 14.7.
FIDIC publishes the current editions through its own bookshop, and the text of your contract, as amended by its Particular Conditions, is the only authority that governs your project.
What This Page Does Not Cover
- Clause 14 payment periods and what starts each clock.
- The 2017 numbering and wording of Sub-Clauses 1.9 and 4.12.
- Contemporary records requirements under Sub-Clause 20.2.3.
- The full list of extension of time causes in 2017 Sub-Clause 8.5.
- Amendments made in the Particular Conditions of your contract, which change deadlines more often than any other part of a FIDIC contract.
This is a general guide, not legal advice.
