The 28-day rule: how not to lose a FIDIC claim

The most expensive mistake in administering FIDIC contracts is not the absence of grounds for a claim, but missing the deadline to make it. The contract may be on your side on the merits, yet a procedural time-bar can wipe out the entitlement entirely.

What the contract says

In the 2017 editions, claims by both parties are gathered in Clause 20. The logic became symmetrical: the same procedure applies to the Contractor’s claims and the Employer’s claims alike.

The key rule is Sub-Clause 20.2.1: a party that considers itself entitled to an extension of time, additional payment or another right must give a Notice of Claim within 28 days of becoming aware (or when it should have become aware) of the event.

If the notice is not given within this period, the party loses the right to that claim. The time limit is of a preclusive (time-bar) nature.

Why it works this way

The idea of the time-bar is not to “catch out” a party on a technicality, but to ensure timeliness: the other party and the Engineer should learn of the problem while it can still be mitigated, and evidence can be gathered while fresh.

A notice of claim is not an admission of fault, nor a confrontation. It is contractual hygiene.

Two stages: notice and substantiation

1. Notice of Claim — 28 days. A short, formal notice of the event and of the intention to claim.
2. Fully detailed Claim — usually 84 days. A detailed substantiation: the contractual/legal basis, causation and a calculation of the consequences (time and/or money).

Missing the first deadline is critical. The second has its own consequences, but the procedure provides mechanisms where substantiation is late.

What kills claims in practice

• “We’ll sort it out informally.” Verbal site arrangements without a written notice.
• Waiting for the full picture. A party wants to calculate all the consequences before giving notice — and misses the 28 days. You must give notice of the event, without waiting for the final figure.
• No tracking system. Nobody records the date from which time started running.

How to build a claims process

• Keep an event log with the awareness date for each potential entitlement.
• Create a Notice of Claim template and assign an owner.
• Count 28 days from the moment of awareness, not from when it “became convenient”.
• Maintain contemporaneous records — notes, photos, correspondence, programme data.

Notice discipline is what separates a sound claim from a lost one. If you need to set up a claims process on a project or assess a situation that has already arisen, request an expert consultation.