FIDIC reference
Sub-Clause 8.8 — Delay Damages
Pre-agreed damages for late completion: a daily rate capped by the Contract Data.
Applies in: Red BookYellow BookSilver Book
If the Contractor fails to complete on time (after any EOT), it pays delay damages at the rate in the Contract Data for each day of delay, up to a cap. These are the Employer’s sole remedy for delay (other than termination). EOT under 8.5 therefore drives the amount: a properly granted extension reduces the period of culpable delay.
Key points
- Rate and cap are stated in the Contract Data.
- Sole remedy for delay (apart from termination).
- EOT under 8.5 reduces the chargeable period.
- Use the LD calculator on this site to estimate it.
How this works in practice
A delay damages dispute almost always reduces to two questions: whether the completion date has been calculated correctly after every EOT granted, and whether the cap has been exceeded. Employers frequently deduct LDs from interim payments before all extensions have been determined — formally possible, but the deduction must be returned if the EOT is later allowed. Second: where parts of the works have been taken over under Sub-Clause 10.2, the damages must be reduced proportionally, and this is routinely overlooked.
Common traps
- The cap is deleted from the Contract Data, or raised to a level where it stops being a protection.
- LDs are rendered as a penalty in the translated version — in several jurisdictions that changes how the provision is treated.
- Sectional taking-over is ignored and damages keep accruing on the whole works after part of the site has gone back to the Employer.
Versions: 1999 → 2017 → 2022
- 1999
Governed by Sub-Clause 8.7 (“Delay Damages”).
- 2017
Renumbered to 8.8 with clarified wording.
- 2022
No substantive change in the 2022 reprint.
Clause FAQ
Which FIDIC books use Sub-Clause 8.8?
The clause applies in Red Book, Yellow Book, Silver Book. Particular Conditions may change the standard risk allocation, so always check the project contract.
Can the Employer claim actual losses on top of delay damages?
Under the standard FIDIC structure, delay damages are the sole remedy for late completion, save on termination. The Employer cannot recover both LDs and the same loss again. Particular Conditions sometimes delete the exclusivity wording, which changes the position entirely — this is one of the edits worth hunting for deliberately.
From what date do damages run where there is sectional taking-over?
From the date fixed for completion of the relevant section, with the rate reduced in proportion to the value of the part already taken over. The practical difficulty is that the proportion must be derivable from the contract documents: if the Contract Data holds no sectional breakdown, the parties inherit an avoidable argument about methodology.
Glossary terms
Related clauses
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Reference material, not legal advice. Always check your contract and the Particular Conditions.