Construction contracts almost invariably contain procedural requirements that a contractor must follow when seeking an extension of time or additional payment. Core Principle 3 of the SCL Delay and Disruption Protocol confirms that the parties should comply with these requirements, and that doing so produces better outcomes for everyone involved.
In the Middle East, the FIDIC suite of contracts is dominant, and the notice provisions in those forms are notoriously strict. Sub-Clause 20.1 of the 1999 Red and Yellow Books requires the contractor to give notice of any claim within 28 days of becoming aware (or when the contractor should have become aware) of the event giving rise to the claim. Failure to give that notice within 28 days results in the contractor losing the entitlement entirely — a true condition precedent.
The 2017 edition of FIDIC restructured the claims procedure into Sub-Clauses 20.1 and 20.2, but retained the 28-day notice requirement and the time-bar consequence. It also introduced a more prescriptive process for the engineer's response and determination, with defined timeframes at each step. As an extension of time expert witness, a frequent task is to analyse whether the procedural steps have been properly followed by both sides.
The SCL Protocol's approach is pragmatic. It recognises that strict compliance is essential where the contract makes notice a condition precedent, but it also encourages employers and engineers to administer the contract reasonably and not to use technical breaches of procedure to defeat claims that are otherwise meritorious. In Middle Eastern arbitrations, tribunals frequently consider whether the employer has waived a notice requirement through conduct, or whether good faith provisions in the governing law (such as Article 246 of the UAE Civil Code) modify the strict effect of a time bar.
Practically, contractors should issue early warning notices generously and promptly, follow up with detailed particulars within the contractual periods, and maintain a contemporaneous register of every notice issued and every response received. Employers and engineers should respond substantively to notices, keep their own records of the engineer's determinations and avoid silence — which can itself be construed as acceptance under some governing laws.
When a claim eventually reaches arbitration, the procedural history is one of the first things any delay expert witness will examine. A clean record of compliant notices and substantiated particulars is worth its weight in gold; a chaotic correspondence trail is the most common reason for otherwise good claims to fail.