Andy Hewitt

Do you have a $10 head?

I have been a keen motorcyclist for many years and I recently had cause to recall an advertising slogan that Bell Helmets ran during the 1980s. Their powerful message was: If you have a $10 head, wear a $10 helmet.

Bell helmets were not cheap, but it was no coincidence that a significant number of motorsport competitors could be seen with the Bell logo on their helmets.

How does this relate to the construction industry?

A couple of years ago I was asked to present a training course on procurement for a property developer. Part of my presentation focussed on the selection of suitable consultants for their projects. I asked the attendees to help me to do some calculations and give me some advice. The exact figures I don’t remember, but the following is a reasonable synopsis of their input:

  • I first asked them to tell me the average total project cost of their projects. Let’s say this was $10,000,000.
  • I then asked what percentage of the total project cost they would budget for consultancy fees. The answer was 10%, which works out at $1,000,000.
  • My next question after that was, what is the cost difference between engaging the very best consultants and the worst? The reply was that there was maybe a cost difference of 30% between the two extremes.
  • We then worked out that with a $1,000,000 budget for consultancy fees, hiring the cheapest consultants would, on the face of it, save the project $300,000. As a percentage of the total project cost this translates to a 3% ‘saving’.
  • I then asked how consultants were selected and was advised that although the project delivery team carried out pre-qualifications and checked on consultants’ past performance, the services were put out to tender and company policy dictated that the work would invariably be awarded on the basis of the most competitive fees.

I explored a little further into their experience on past projects...

  • Do we agree that the consultants that you engaged are probably the most competitive on price, because they pay lower salaries than the more expensive consultants? Yes.
  • Can we agree then, that the consultants that you appoint are able to pay low salaries, because they employ poorly qualified and experienced personnel? Yes.

Having established the procurement methodology, I asked more questions, this time related to existing projects...

  • Do you ever get design problems that result in additional costs for your projects? Yes, frequently.
  • Do the consultants appointed to supervise, manage and administer the contracts on your projects ever fail in their duties and responsibilities which results in additional costs for your projects? Yes, frequently.
  • Do the consultants appointed to manage and respond to claims on your projects do so in accordance with the contract and in such a way that claims are agreed amicably and in good time? No, we often have contentions with regard to claims.
  • Do disputes arise on any of your projects? Yes, we have had several arbitrations.
  • Are arbitrations costly? Yes, very costly and time-consuming.

And finally I asked the group...

  • Are total project cost budgets ever exceeded? Yes, most of our projects come in considerably over budget.

You Get What You Pay For

The point here is that buying a $10 helmet is probably not a great investment. Particularly if something goes wrong and you have an accident on your motorcycle.

The same applies to $10 consultants.

$10 consultants are actually worse. They often cause the ‘accident’ in the first place and will then not protect you properly. Similarly, if you have a commercial matter, contractual problem, claim or dispute of significant value, is it better to engage the best or the cheapest consultants to help you avoid or resolve matters?

Whilst Hewitt Decipher Partnership is not a $10 consultancy, our business model allows us to be very competitive for the high level of expertise that we offer to our clients. Our expert consultants are appropriately qualified and experienced in their particular disciplines, so we provide excellent value for money when assisting our clients. Can we help you? Get in touch.


Success with Claims Arising from COVID-19

This month, I'm going to take the opportunity to blow our own trumpet a little...

And why not?

HDP has worked with a number of clients on extension of time claims connected with COVID-19 recently. Of particular note, we helped clients on two complicated and high-value projects with very high levels of delay penalties. I'm really proud of the way our team manages these projects to achieve successful outcomes. So by sharing the details as case studies, I hope it offers some food for thought for managing your own claims...

The Projects

Both projects were EPC contracts undertaken by overseas contractors to engineer, procure and construct industrial plants. Both included many materials and significant quantities of plant and equipment which were manufactured overseas.

In a more conventional extension of time claim, the activities affected by the claimable delay generally only amount to a small number. They may be relatively easily impacted into a suitable programme to demonstrate the effects of the claimable delay on the time for completion. An extension of time claim related to  variation, for example, would require a fragnet to be created to show the instruction, shop drawing preparation and approval, material submission and approval, procurement, delivery and site installation. Other claims may include several delay events with corresponding periods of delay being impacted into a programme. If the logic links are correct, the programming software will produce the information necessary to calculate the extension of time due to the event or events.

Not Your Usual EoT Claim

Delays related to COVID-19 were, however, just like COVID-19 itself, very, very different. On the projects in question, COVID-19 delayed literally hundreds of the programmed activities. Overseas manufacture and delivery of many items was delayed because of lockdowns. Travel restrictions meant that our clients could not mobilise personnel for site installation and specialist personnel for testing and commissioning. The countries in which the projects were based were placed under lockdown. The sites were closed due to COVID-19 amongst the project personnel and social distancing in the workplace reduced productivity. In addition to delays incurred by our clients, local subcontractors were similarly affected by many of these matters. This list of delays, all due to COVID-19, went on and on.

Thinking Outside the Box

This unprecedented situation called for us to re-think the conventional approach to extension of time claims. Especially the delay analyses necessary to prove the effect of COVID-19 on the time for completion. The fact that we did so, and did so successfully for our clients, was validated because the claims were accepted by both the Engineer and the Employer and our clients received the required extension of time awards on both projects. What’s more, the claims were not subject to any requests for further particulars and there was agreement within weeks of submission. That's what we call a successful outcome.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. We know how to think out of the box when required to do so and how to formulate the best strategy for a successful outcome for our clients. Can we help you with COVID-19 related claims? Get in touch.

dispute resolution

Dispute Resolution in the New Normal

The past year has seen radical changes in the way we live our lives,  socialise, work and play. Dispute resolution has been no exception in this regard. Dispute resolution by the means of virtual or online hearings is increasingly common. Parties stay in different locations or their own homes and resolve their disputes remotely.

Before the arrival of COVID-19, there were 10 million people using zoom worldwide. By April 2020, there were 300 million users using the platform. This is great news for Zoom’s shareholders if nothing else (source:

HDP’s Head of Contracts and Commercial, Bill Bordill, took part in a discussion on the use of virtual hearings and adapting to the ‘new normal’ in the UK statutory adjudication system. Panellists agreed the pattern has opened up a new way of dealing with disputes. They concur it is now likely that many more disputes will find resolution in this way in future.

Many dispute resolution forums allow for virtual hearings now. These include Abu Dhabi Global Markets, who notably proclaimed themselves as one of the first tech-enabled dispute resolution centres. In London, the International Arbitration Centre set up a similar standard. The centre focussed heavily on the security systems in place to ensure secure hearings were a feature from their opening. Other forums such as IDRC allow for virtual hearings and the DIFC in Dubai were holding remote hearings in 2017, long before COVID.

In the courts in the UK, the country’s first ‘zoom trial’ was much publicised earlier in the year. Paul Darling OBE QC represented clients in a virtual forum, using the video-conferencing platform, ‘Zoom’. One of the biggest concerns often cited is that parties will not be able to interact with each other as they would in a physical environment. There are fears that parties will not have a fair hearing or be on a fair footing if not in a neutral physical environment. Rules of 'natural justice' have been questioned.

Another concern is that of influence; the worry that in an uncontrolled environment, witnesses may be ‘fed’ answers to questions or influenced in other ways. In a non-COVID scenario, this can be resolved by sending a third, independent party to be with the witness. It is slightly more difficult to control in the current environment.

Nevertheless, Paul Darling noted, “What the trial has proved beyond reasonable doubt, however, is that none of the intimacy of the physical courtroom is in fact lost with a remote trial. Rather, video sharing can in fact heighten our ability to dissect testimony, whilst opening up proceedings to the public.”

Another concern highlighted has been that of security. Zoom in particular, as one of the most popular platforms, has been a victim of security attacks. There have been high-profile issues with the ability of the platform to prevent hackers or others accessing meetings:

Equally, commentators have noted that even a modestly tech-savvy operator ought to be able to remove such risks. They only need enable the relevant settings on the platform, before a hearing begins.


Under most systems of Arbitration law, usually there is nothing to preclude you using technology. The Arbitration stays the same, the rules and procedures are the same.

Erik Schafer, one of Germany’s leading arbitrators noted long before the arrival of COVID, on the subject of technology in arbitration: “in the vast majority of cases all participants will collaborate as required”. He notes that this does need a consensual approach - parties need to agree to the process.

Why bother?

Notwithstanding the current virus, there are many reasons to consider remote hearings, in the same way there are many reasons to consider other uses of technology.

  1. The cost should reduce, with no need to hire rooms, provide catering, welfare facilities etc.
  2. There will be no need for travel and accommodation costs and the associated costs of travel time.
  3. The convenience of a remote hearing means it should be possible to arrange the hearing at more convenient times. This should allow those required to attend to plan other activities around the hearing, rather than block full weeks and months of time out of their diaries.
  4. Finally, there is the benefit to the environment. Sacing many air-miles on travelling between arbitrations and projects around the world. By eliminating the extensive need to travel, the carbon footprint of arbitration will reduce.


To allow such a hearing to happen, a key requirement is a stable internet connection. Even the most experienced broadcasters have, at some point in recent months, experienced a lost line or a poor connection. The connection for all users should be strong.

Users of the system should be able to be heard and hear. So, good quality audio, and a microphone separate to the default laptop microphone will be helpful.

A system should be ‘platform agnostic’. Try to avoid systems that favour one manufacturer or another. Microsoft for example, seem to favour their own Windows operating system, allowing only limited functionality on devices not running Windows. The website ‘Capterra’ can be very helpful for businesses trying to identify which platform to use.

System choice should be determined on the functionality and meet security requirements outlined above. Most systems are now able to provide a secure discussion. ‘Zoom’ in particular have been keen to close the various loopholes highlighted earlier in this piece.

The ability of certain platforms to provide breakout rooms is a particular advantage. Such rooms enable private discussions during a hearing or as directed by a tribunal. Surprisingly few systems seem to offer such functionality, but there are at least two that we are aware of.

Recording and storage should be a consideration when it comes to security. If a hearing or meeting is recorded, where is the data stored, is it secure? As an example, in surveys, Teams comes out well on security, if set up correctly.

Like so many choices in life, it seems choice of platform and whether to conduct a dispute resolution process virtually or not will be a trade-off. The loss of ability to see parties face-to-face is compensated for in other ways. Different platforms offer different strengths and weaknesses. However, it seems that no matter what the future holds, the world has become far more comfortable with working from home. As more money becomes available for research and development, the technology will improve commensurately to help us to do so.

Hewitt Decipher Partnership’s expert consultants have been both managing disputes and acting as experts in dispute resolution proceedings for many years. We have also quickly adapted to managing our services and managing our client’s expectations remotely, wherever the projects and clients may be located.

Paul Gibbons, HDP Director wrote this article. If you'd like to speak to Paul about any help that you require, please get in touch

construction disputes

How Technology can help to avoid Construction Disputes

Construction is lagging behind.

This is not our opinion, but that of renowned research and consultancy organisation, McKinsey & Co. The industry’s productivity rate is lower than most other sectors almost universally around the world. With a few notable exceptions, such as China and India, productivity is poor and growth is slow. For an summary, check out McKinsey’s report Reinventing Construction.

Why is this?

There appear to be a number of reasons - not least our specialist subject, construction disputes. But the challenges posed by the construction dispute are compounded by poor management, poor organisation of data and limited collaboration and communication. Disputes need not occur and if they do, they need be as costly as they are.

We’ve mentioned before, in our 10 Top Tips blog, ARCADIS’ report which highlights the huge cost of disputes. The McKinsey report also notes that large projects are typically 20% over time and 80% over budget. In the US, disputes cost over $12bn each year. In the United Arab Emirates, where construction disputes are notoriously costly, a similar figure would equate to $248,400,000 or more than AED 9M lost each year to dispute resolution.

What Can We Do?

Adoption of technology and improvements in innovation and communication would be a positive first step. It may surprise some readers to find that at Hewitt Decipher Partnership, we don’t want to spend excessive amounts of time resolving disputes. It isn’t productive and doesn’t make for happy clients. If you do find yourself in a dispute, it is far better to be in a good position to resolve that dispute and minimise the cost, than to have to spend more than is necessary.


There are a number of systems available, but hitherto, a lot have been focussed on one aspect of construction or geared towards solving one problem. For example, Oracle’s primavera provides a great project planning tool with potential for planning in resources and cost. But rarely is it used collaboratively or pro-actively during the project.

There are tools for managing documentation and site records. Software is available for design and safety management. Rarely though, do all the stakeholders come together and invest in a coordinated fashion in the right software for the job.

Investing in technology is important. Records, plans and schedules, design documents and anything that might affect progress should all be coordinated. Whilst this article does not seek to recommend a particular software over another, there is useful research material out there. For example, this article from venture capital investors, Talis, looks at products which have the potential to create change in our sector. There are events, such as ‘project controls expo’, ’futurebuild’ and ‘glimpse of the future’. Each seeks to showcase innovators and technology providers in construction technology, “ConTech”.

Other Innovations

There are a host of other innovations we have seen in recent years. The use of virtual reality to re-create construction projects, the use of 4D modelling to identify where and how site instructions and variations led to a change in programming and cost, drones for surveying - to name just a few. As time progresses and technology is adopted, it is likely that the cost of dispute resolution will reduce. Our aim at Hewitt Decipher Partnership is to harness that technology and minimise costs to our clients.

If you have already sought to harness technology organise data before you need us. Our job is likely to be easier and less time-consuming. The result will be a less costly and more efficiently resolved dispute. We urge clients to seek out technologies to better manage records, improve communication between stakeholders and reduce the potential cost of construction disputes.

Hewitt Decipher Partnership’s expert consultants have been supporting clients though dispute proceedings for many years. We know how to comply with good practice to minimise disputes and if they do occur, ensure that they are resolved in a timely and cost-effective manner. Can we help you? To find out how, get in touch.

FIDIC 1999 Notices - Andy Hewitt's Latest Book

At the end of 2019, I was working with a contractor-client on several extensions of time and additional cost claims. As is necessary for any claim, I needed to demonstrate that the contractor had complied with the contractual notice provisions.

This client had sent some notices. In most cases though, these didn't comply with the contract requirements and were completely meaningless as notices.

The Proposed Solution

It was clear that those responsible for contract administration on the projects were unclear about what a notice should contain. As well as, how to compose them. I suggested to our client that it would be a good idea for me to prepare drafts of the most common notices so that their contract administrators would have a starting place when composing notices on their projects. Our client liked the idea and agreed. A couple of weeks later, a Notice Manual was distributed to all the projects.

An Idea Was Born

It then occurred to me that this client isn’t alone in their lack of understanding of notice provisions of FIDIC. During my considerable time working as a claims consultant, I notice that failure to provide notices in the correct format is one of the biggest mistakes parties make and those appointed to administer a FIDIC contract.

And that was the lightbulb moment.

I decided to write a book on the subject: FIDIC 1999 Notices: A Guide to the Requirements Content and Composition of Notices Under the Red, Yellow and Silver Books.

The book examines each clause of the FIDIC Red, Yellow and Silver forms of contract that require the Contractor, the Employer and the Engineer to give notices. It contains explanations of why, and under what circumstances, you may require each notice. It also provides real-world, written examples of typical notices for each clause.

This is what Dr. Cyril Chern, (Barrister, Chartered Architect, Chartered Arbitrator, Adjudicator, Accredited Mediator, Dispute Board Expert) had to say about it in the foreword:

FIDIC contracts are the basis for most of the world’s major infrastructure projects and also for most of the litigation that arises from these projects. For example, a typical FIDIC notice provision states that notice must be given within 28 days of any event the result of which is that the date for completion ‘is or will be delayed’. What does this mean? What is the notice to look like and what is it to say? And this is where the problem starts.

In my role as both an adjudicator and arbitrator of FIDIC matters, what is most common is the lack of proper notice, timely notice, and intelligent notice but nowhere does FIDIC set out how these are to look and what they are to contain. There are no exact standards to guide the Contractor (nor the Employer or Engineer) and as a result, large amounts of time and money are lost in litigating these issues after the fact, rather than having clear standards to rely upon and prevent problems in the first place.

FIDIC 1999 Notices: A Guide to the Requirements, Content and Composition of Notices Under the Red, Yellow and Silver Books by Andy Hewitt provides both the Contractor and Employer/Engineer as well as their advisors with the needed information and clarity for each of the steps in the construction process under FIDIC contracts (1999 versions) and generally and most importantly doesn’t just ‘talk’ about the issue but gives actual examples which can be used and/or modified for use on any FIDIC project worldwide for maximum benefit.

The book covers first the administration of notices and what is involved and then moves into the necessary Contractor’s notices which form the bulk of claims seen both in a dispute board setting as well as in arbitration—was notice given, what did the notice contain, was it sufficient, why yes and/or why not, and all the needed information for every situation and for every sub-clause of the standard FIDIC contract. Then it delves into the Notices required by both the Employer and its Engineer, thus covering all aspects of any project.

This is a ‘must-have’ and ‘go-to’ book for any Contractor, solicitor, barrister, Engineer and Employer who uses FIDIC contracts, and its information will save time and money for all those who use it. I highly recommend this book.’

If this sounds like something that might be helpful to you or your company, get your copy from Amazon UK or

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. We know how to comply with good practice to ensure that you do not lose your entitlement. Moreover, if you have entitlement, we ensure that your claims suceed. Can we help you? To find out how, get in touch.

delay analysis

Get your Delay Analysis Accepted | 8 Tips for Success

Over the past few weeks, we have been asked by two separate clients to review responses where claims were rejected. Whilst in both cases, the respondents cited several reasons for rejection, some valid and some not, both cited the method of delay analysis submitted with the claims as a cause for rejection. In my experience, this ranks as one of the most frequently used reasons for the rejection of claims.

Case 1

In the first case, the contractor had simply taken a number of what he considered to be critical activities and established the number of claimable delay days to these activities. He then added the highest number of delay days to the prevailing Time for Completion and requested an extension of time to the resultant date.

I can absolutely guarantee that no respondent will award an extension of time on this basis. That includes myself if I were acting on behalf of the client. I would need to see the effect of the employer-risk events on the latest programme using the existing logic. I would need to check that existing contractor delays had been considered. Moreover, if a cost claim was involved, I would need to verify that there was no concurrent delay.

Case 2

The second case was different. The contractor had produced a good delay analysis using one of the recommended methods, but the Engineer had rejected it, simply on the basis that he wanted a different method of delay analysis and, I suspect, because he did not understand the analysis itself. This is very common because it allows those acting on behalf of the respondent to defer sticking their necks out. Along with making a decision that could result in an award to the claimant.

The cause of the problem here is entirely the claimants, because he did not justify the use of the chosen method of delay analysis. He did not explain how it had been performed or demonstrate the effect on the prevailing time for completion. Had he done so, this would have closed the door on the respondent using the delay analysis as a reason for rejection.

Delay Analysis: 8 Tips for Success

Our 8 top tips for successful delay analyses are:

  1. Ensure that you use an appropriate method of delay analysis for the project, the nature of the delays and the information that is available.
  2. Justify that the chosen method is appropriate for the circumstances.
  3. Use an appropriate programme as a basis of the delay analysis and explain why and how you use it.
  4. Perform the delay analysis in accordance with established procedures and to an appropriate professional standard.
  5. If you discover logic errors in the base programme, correct them and explain why and how you have  corrected them.
  6. Explain in the claim narrative how you perform the analysis so that a non-expert programmer can understand it.
  7. Explain the findings of the delay analysis.
  8. Use the findings to properly calculate the extension of time that you are claiming and explain the calculations clearly.

Keep these tips in mind and you'll be submitting with success each and every time.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to delay analyses for many years. We know how to comply with good practice to ensure that you have a robust delay analysis to support a claim and, if working on the employer’s side of the fence, we know the standards that the claimant must meet to justify an award.

Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. Want our article straight in your inbox, sign up to our mailing list.

interim claims

Interim Claims and COVID-19: should we wait, or should we submit?

Unsurprisingly, we are currently advising several clients on matters related to COVID-19 consequently interim claims frequently comes up. One of the questions we are asked is ‘Should we wait until the delays arising from COVID-19 have ended before we submit our claims?’.

Our answerer is an emphatic...NO!

Most contracts oblige the claimant to submit claims within a specified time period and if the final effects cannot be ascertained, to submit interim claims until the delays have ended and the final effect on the time for completion and/or the costs may be calculated. Using FIDIC 1999 as an example, Sub-Clause 20.1 (Contractor’s Claims) states that:

‘Within 42 days after the Contractor became aware …the Contractor shall send to the Engineer a fully detailed …. If the event or circumstance giving rise to the claim has a continuing effect:

‘(a)    this fully detailed claim shall be considered as interim;

‘(b)    the Contractor shall send further interim claims at monthly intervals, giving the accumulated delay and/or amount claimed, and such further particulars as the Engineer may reasonably require; and

‘(c)    the Contractor shall send a final claim within 28 days after the end of the effects resulting from the event or circumstance, or within such other period as may be proposed by the Contractor and approved by the Engineer.

This is stipulated to ensure that the Employer and Engineer are aware of the likely effects on a regular basis. As well as make plans for a late handover and/or provisions for additional financial requirements. If the contractor does not fulfil these obligations they won't be able to do either.

From a practical point of view, the longer a claimant leaves a claim, the more difficult it is to agree.  Circumstances change, people leave the project, consultants are demobilised and of course, if the Employer has been presented with a completed project, his incentive to settle claims is considerably reduced.

Some contractors believe that the submittal of several updates will be time-consuming and costly, but this is only partly true. The time-consuming and difficult work is required for the first interim submission because this is where the majority of the investigations, data gathering, setting up of the delay analysis programmes and examination and demonstration of cause, effect and entitlement takes place. This, of course, is necessary whether the claim is being prepared on an interim or a final basis. Once the base document and calculations have been created though, the updates are reasonably straight-forward. They do not require nearly as much time and effort as the first submission.

Some contractors are reluctant to put the effort into preparing adequately expressed claims or incur costs in doing so. And so keep deferring a decision on what action to take. Some of these contractors may also be facing delay penalties running into millions of dollars. So putting contractual obligations aside, does it make any financial sense  to defer securing an extension of time until later? We think not.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years. We know how to comply with good practice to ensure that our clients have a justifiable claim that is adequately expressed. Therefore, if entitlement to an extension of time exists, the claims will be accepted in a timely manner and delay penalties will be negated.

Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. Want our article straight in your inbox, sign up to our mailing list.


Thinking Outside the Contract

A recent question that came to us was to provide some contract advice to a project management consultant for events arising out of COVID-19. We have a good relationship with this particular consultant so our advice was complimentary. It also provides a good example of how parties should think outside the contract and communicate in a positive way.

The Scenario

  • They entered a contract before the impacts of COVID-19 began to have an effect.
  • The contract was for alterations to a shopping mall. The Employer was intending to fund from rental income from the mall itself.
  • Works has started on site.
  • When the impact of COVID-19 started to have an effect locally, the Employer realised that his rental income could or would be severely affected.
  • He elected to suspend the Works indefinitely and gave notice of suspension to the Contractor.
  • The Contractor, having arranged for all the bonds, guarantees and insurance required by the Contactor, applied for the Advance payment after the suspension date.

The Advice

We were asked if the Employer, having suspended the Work, was still obliged to pay the advance payment. Our answer was that:

  • the Contract has not been terminated, so this does not change the Employer’s obligation to make the advance payment.

The Employer recognised that the Contractor would be entitled to an extension of time and the payment of costs associated with the suspension. But, they asked us if the Employer could request the Contractor to submit his claim for costs after lifting the suspension. Our advice was that:

  • the Contract obliges the Contractor to submit his claims within 42 days.
  • If the suspension period is ongoing, the obligation lies with the Contractor to send monthly interim claims until they ascertain the final effects.
  • The Engineer must respond to the claims and certify payment of any amounts reasonably ascertained to be due under the claims.

This was our advice based on a purely contractual perspective. However, because we could see a potential problem on the horizon for both parties, our advice did not stop there...

Thinking Outside the Contract

Let's look at the situation from the Employer’s perspective. The Employer will possibly consider that having suspended the work, the Contractor can demobilise his resources with little cost and just maintain the guarantees, insurances, etc. at a low daily cost. The Employer could therefore expect to receive a relatively low-value claim for costs incurred.

On the other hand, the Contractor may consider that he can remove all his resources from site and claim for costs incurred due to resources standing idle during the period of suspension, which would result in a substantial claim.

This is where we see a potential problem. Our advice was that the parties must discuss the situation in an open and frank manner, with a view to reach agreement on the best actions to mitigate the situation for both parties. Items for discussion on the agenda should include:

    1. How long does the Employer intend to suspend the work? Only the Employer can answer this. He may not even be able to predict when his income stream will resume. Consequently, there may need to be plans for several eventualities.
    2. What costs is the Contractor incurring or is likely to incur? Only the Contractor can answer this. If the Contractor directly employs the project personnel, demobilisation may include redundancy and repatriation. So costs will be substantial and may be greater than keeping them idle for a limited period. The Contractor may then have to recruit new labour in order to resume the work. This could cause additional delay and costs after the suspension period had ended. What are the Employer’s priorities in this respect?

So there you have it, a good example of how a strictly contractual solution will not solve all the problems on a project and how thinking outside the contract is often good management for both parties.


Hewitt Decipher Partnership’s expert consultants have been advising on contractual matters for many years and because our consultants come from many backgrounds within the industry, we also advise our clients on how to avoid contention and provide proactive solutions to problems.

Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. Want our article straight in your inbox, sign up to our mailing list.

Coronavirus | Advice for Contractors, Engineers & Employers

Our last blog looked at whether contractors are entitled to claim for an extension of time and/or costs because of the effects of Coronavirus and examined the provisions under the FIDIC Red and Yellow Books.

This was our standpoint just four short weeks ago, at a time when some contractors were anticipating that delays may be caused by supply chain problems associated with plant, goods or materials sourced from China and the few travel restrictions which were then in place.

Our advice was that provided the Contractor can demonstrate delay to the Time for Completion and/or the incurrence of Cost, he will be entitled to an extension of time and may be entitled to claim for additional payment for Cost incurred.

Since then though things have changed drastically. Some countries are on total lockdown with people having to stay at home. Many countries have imposed travel bans. So, the effects of Coronavirus have now become extreme and are likely to be long-lasting.

As a result, HDP directors decided that it would be helpful to examine the options available to the Parties as the situation continues to develop. Again, we shall look at the provisions of the FIDIC Red and Yellow Books.


The Employer may consider that if the Contractor is not able to proceed with the Works for the foreseeable future, it may be sensible to suspend the Works to minimise any cost which may become due to the Contractor.

Sub-Clause 8.8 (Suspension of Work) allows the Engineer to issue a suspension instruction and the Contractor is obliged to protect, store and secure the Works against deterioration, loss or damage, so this would effectively ‘mothball’ the project until the Employer decides to lift the suspension. In a case of suspension, the Contractor would be entitled under Sub-Clause 8.9 (Consequences of Suspension) to an extension of time and the payment of Costs including mobilisation and demobilisation costs, so the Employer must weigh up the options here.

Sub-Clause 8.11 (Prolonged Suspension) however, allows the Contractor to terminate the Contract if the suspension affects the whole of the works and the suspension period continues for more than 84 days. We are unsure how contractors will react as and when things return to normal and operations are resumed. Presumably though, many of them will be willing to pick up where they left off.

FIDIC does not provide any options for the Contractor to suspend the Works under the circumstances arising from Coronavirus.


There are two clauses in FIDIC which give the Employer entitlement to terminate the Contract. Sub-Clause 15.2 (Termination by Employer) allows the Employer to terminate because of various acts of default by the Contractor. In our opinion, it cannot be said that inability to progress the works in the circumstances of the coronavirus is a default of the Contractor, therefore this is inapplicable.

Sub-Clause 15.5 (Employer‘s Entitlement to Termination) however allows the Employer to terminate for his own convenience by giving 28 days notice. Nothing can be sensibly predicted at the moment, but it could be that as things progress, some employers will simply decide not to proceed further with the project, or at least not for some considerable time.

Our earlier blog suggested that it is uncertain whether the coronavirus constitutes a Force Majeure event under FIDIC, but if the Parties agree that it does, Sub-Clause 19.6 (Optional Termination, Payment and Release) provides that if the Works are prevented from progressing for a period of 84 days or for multiple periods of 140 days by reasons of Force Majeure, then either party may terminate the Contract.

Sub-Clause 19.7 (Release from Performance Under the Law) provides that

if any event or circumstance outside the control of the Parties arises under the Law which makes it impossible or unlawful for either or both Parties to fulfil its or their contractual obligations … the Parties shall be discharged from further performance…’

This may apply in circumstances where governments have introduced measures to control Coronavirus which have, in fact, made further performance impossible and becomes effectively a further reason for termination by either party.


The circumstances arising from Coronavirus have never been experienced before, or at least not within the memory of most people. They are drastic and far reaching. Whilst we have given our opinions on the applications of the FIDIC contracts to the situation, this has been from a purely contractual point of view. In our opinion, the FIDIC contracts do not really envisage such a situation.

That said, it's important to look beyond what the FIDIC Contracts do or do not say. In a situation as serious as this, the Parties have to think 'outside the box' of the contract and find ways to work together to safeguard the personnel involved, to comply with government rules and regulations and to seek ways to manage the project to the best abilities of both Parties.

The ability to maintain progress and complete on time may well be totally out of the control of both Parties. Contractors may be expending substantial additional costs and will suffer from cashflow problems and will be powerless to control things. In short – both sides of the contracting fence will undoubtably suffer in one way or another and it would, in our opinion, be unfair for either Party to attempt to gain any advantage from the situation.

Don’t forget that, provided both parties are in agreement, contracts may be amended at any time, so despite what the contracts say we encourage all involved to reach agreement on a course of action which will be the least harmful to the parties and the project.

Hewitt Decipher Partnership’s expert consultants have been preparing and responding to claims for many years and we have investigated Coronavirus from a contractual standpoint. We can also see ‘outside’ the contract to look at matters from a project management point of view to seek ways to resolve situations and reach agreement on what is best for the project.

Can we help you? Get in touch via our contact page; we would be happy to discuss any support that you may need. 

Funding Claims | Got a claim but can't afford to pursue it?

I’m sure you know the situation. You have a good claim for a considerable amount of money, but your client won't pay it.

The client and his consultants delay things or reject the claim for unfair reasons. So, it becomes clear that in order to receive payment, you're going to have to take ‘further steps’.

What are the further steps that you may take under the contract?

Read more