Contract management (FIDIC)
FIDIC 2017 notices: the 28-day rule (Sub-Clause 20.2) explained
If you administer a FIDIC-based contract, one date matters more than most: the 28th day after you became aware of an event. Under the 2017 editions of the Red, Yellow and Silver Books, a Notice of Claim has to be given within 28 days, and missing it can end the claim. This article explains how Sub-Clause 20.2 works, what changed from 1999, and a routine that keeps notices on time.
This is a guide for contract administrators, not legal advice. Your Particular Conditions may change any period or clause cited here, which is common on Saudi projects. Read the contract you signed.
What Sub-Clause 20.2 covers
In the 1999 Red Book the Contractor's claims sit in Sub-Clause 20.1, and the Employer's claims follow a lighter route under Sub-Clause 2.5. In the 2017 editions, Clause 20 was rebuilt. Sub-Clause 20.1 now deals with the general claims, and Sub-Clause 20.2 sets out one procedure for claims by either party: the "claiming Party" can be the Employer or the Contractor.
The 20.2 procedure has these main steps:
| Sub-Clause | Step | Period |
|---|---|---|
| 20.2.1 | Notice of Claim | Within 28 days after the claiming Party became aware, or should have become aware, of the event or circumstance |
| 20.2.1 | Engineer's notice that the Notice of Claim was late | Within 14 days after the 28-day period has expired |
| 20.2.3 | Contemporary records | Kept from the date of the event, and open to the Engineer's inspection |
| 20.2.4 | Fully detailed Claim | Within 84 days after becoming aware, or another period agreed |
| 20.2.5 | Agreement or determination | After the fully detailed Claim, via the Engineer under Sub-Clause 3.7 |
| 20.2.6 | Claims of continuing effect | Interim claims and a final claim after the effects end |
The 1999 edition used 28 days for the notice and 42 days for the detailed claim. The 2017 editions keep the 28 days and extend the second period to 84.
The 28-day rule in plain terms
The clock starts when you became aware of the event, or when you should have become aware of it. The second limb matters. If a reasonable contractor would have known about a design change on the day the drawing was issued, you cannot argue that you only understood its effect weeks later.
The notice has to be a Notice. Under Sub-Clause 1.3, a Notice must be in writing and identified as a Notice, and other communications must say which provision they are given under. An email that describes a problem is not necessarily a Notice of Claim. State that it is a Notice of Claim under Sub-Clause 20.2.1, describe the event, and deliver it by a method the contract allows.
The Notice of Claim does not need to state the amount of time or money. It needs to describe the event or circumstance and say that you will claim. The numbers come in the fully detailed Claim.
Count days as calendar days, as the FIDIC general conditions do, unless your Particular Conditions say otherwise. Weekends and public holidays do not stop the clock. Counting from receipt or from awareness is a question of facts, so record the date of awareness in your register on the day.
What happens if the notice is late
Under the 2017 wording, a late Notice of Claim is a time bar: the claiming Party loses entitlement to the extension of time or additional payment for that event. But the 2017 text added a safeguard. The Engineer must give a notice, within 14 days after the 28-day period has expired, stating that the Notice of Claim was late and giving the details. If the Engineer does not do this, the Notice of Claim is deemed to be valid.
Three points about this safeguard:
- It is not a licence to be late. If the Engineer does serve the notice, the claiming Party then has to argue that the delay was justified, which it can do in the fully detailed Claim.
- It places a duty on the Engineer. The Engineer needs a system to check every Notice of Claim against the awareness date.
- Particular Conditions often change it. On many projects the 14-day safeguard is removed or modified, which brings back a strict time bar. Check.
Commentary by Fenwick Elliott and Gowling WLG notes that the Engineer has a greater responsibility to act under the 2017 text, and that a Notice of Claim stands as valid if the Engineer stays silent.
The second time bar: the 84-day claim
After the notice, the claiming Party must submit the fully detailed Claim within 84 days after becoming aware, or another agreed period. It has to include a description of the event, a statement of the contractual or other legal basis for the claim, the contemporary records, and the supporting particulars of the time or money claimed.
The statement of the legal basis is a trap. The ICLR commentary notes that failing to provide a Notice of Claim, or full particulars, makes the claim extinct. Leaving out the basis is itself a second time bar. Cite the specific Sub-Clause or other legal basis for every head of claim.
For events with a continuing effect, 20.2.6 allows interim claims and updates, and a final claim after the effects end. Check the periods in your contract. Mirage Metrics summarises them as a final claim within 28 days after the effects end.
Records are part of the claim
Sub-Clause 20.2.3 requires contemporary records. The claiming Party keeps records needed to substantiate the claim, and the Engineer can inspect them and instruct additional records. A claim with a good notice and no records is weak. Keep:
- Daily site reports with labour, plant and weather
- Photographs with dates
- Instructions, drawings and their issue dates
- Programme updates showing the impact
- Cost records for the affected work
A notice register that works
Build a register and review it weekly. For each event:
- Reference and description. A running number and a one-line summary.
- Date of awareness. The date, who knew, and the evidence.
- Contract route. Sub-Clause 20.2.1, 13.3 for variations, or another mechanism.
- Notice due date. Day 28, calculated by formula, not by hand.
- Notice sent. Date, method and a copy.
- Engineer's reply. Whether a late-notice notice was given within 14 days.
- Detailed claim due date. Day 84.
- Status. Open, submitted, agreed, determined or closed.
Add a warning column that turns red at day 21. Seven days is enough to draft and approve a short notice, if the process is ready.
Habits that prevent time bars
- Give protective notices. If you are unsure whether an event is a claim, send the notice. A notice that is not needed costs little. A notice that was needed and not sent can cost the claim.
- Train the site team. Engineers and foremen are often the first to know. Tell them what to report and to whom the same day.
- Use Advance Warning. The 2017 editions include a duty to give advance warning of probable events under Sub-Clause 8.4, which feeds the register early.
- Do not wait for the cost. Time and money can be quantified after the notice.
- Check the Particular Conditions on day one. Create a one-page matrix of every period in the contract and pin it where the team can see it.
If you want a contract matrix and a notice register for your project, send us the conditions of contract and we will set them up.