Clause 44 Revisited

By Indrawansa Samaratunga FRICS,MCIarb

One important purpose of a Clause carrying provisions to enable extending the Time for Completion of the Works, is to prevent the time being set at large, thus preserving the Employer’s right to deduct liquidated damages for any late completion by the Contractor. Clause 44 is the only[*] Clause in FIDIC 4th Edition under which the Engineer can determine an extension of time and therefore, one of the causes referred to in paragraphs (a) to (e) of Sub-Clause 44.1 should be capable of application to any event causing delay which would fairly entitle the Contractor to an extension of time. All events causing delay, for which the Contractor entitlement to an extension of time is expressly stated in the other Clauses of FIDIC 4th Edition, would fit into paragraph (b) any cause of delay referred to in these Conditions. Paragraph (c) is the only provision in the Contract dealing with exceptionally adverse climatic conditions and would be reserved for that purpose. Paragraph (e) deals with other special circumstances. Since any matter referred to in the Contract should not be considered as special circumstances, paragraph (e) should apply only to those matters not referred to in the Contract. The remaining two paragraphs (a) and (d) should therefore be capable of application to all other events causing delay, which could be inferred from the Contract as being in need of an extension of time. They are described in this Chapter under their individual headings and Sub-Clauses supported by reasoning as to why the presented interpretation should be considered as the appropriate interpretation. The following table identifies each event warranting an extension of time, the relevant paragraph of Sub-Clause 44.1 which is applicable and, an annotated explanation to each cause.

Even the Clauses where the Contractor’s entitlement to an extension of time is expressly stated (viz. Sub-Clauses 6.4, 12.2, 27, 36.5, 40.2, 42.2, 69.4) require the Engineer to determine such an extension of time under Clause 44

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  1. The amount or nature of extra/additional work instructed.
  2. Any cause of delay referred to in the Clauses (i.e. stated in or inferred from that particular Clause/Sub-Clause).
  3. Employer’s failure to ensure the proper and prompt discharge of duties by the Engineer (which amounts to delay, impediment or prevention by the Employer).
  4. Any delay, impediment or prevention by the Employer.
  5. Exceptionally adverse climatic conditions (This is the only provision in the Contract which refers to delay from climatic conditions. Clause 12 excludes climatic conditions).
  6. Other special circumstances (Delays referred to in Clauses cannot fall into this category).

Contract Administrators should note that Clause 44 deals only with extension of time and that, Clause 44 does not have provisions which entitle a Contractor to any additional payments. Any entitlement to additional payment shall be as stated in or inferred from the other Clauses of the Contract. Accordingly, a Contractor is entitled to an extension of time in the event of exceptionally adverse climatic conditions (because such climatic conditions are stated in Sub-Clause 44.1(c)) but is not entitled to any additional payments because an entitlement to additional payments in the event of such climatic conditions cannot be found under any of the other Clauses of the FIDIC 4th Edition.

Note:
Above article is adopted from a forthcoming book titled Contract Administration in the Middle East under FIDIC – 4th Edition by Indrawansa Samaratunga FRICS, FCIArb, Chartered Quantity Surveyor.

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