Please indicate whether contracting parties can use the standard form of FIDIC contracts, change the parts of the terms of the contract and the terms and conditions applicable to the use of standard FIDIC form agreements. I am particularly concerned about copyright issues. How can the definition of unpredictable circumstances (point 188.8.131.52) indicate a time frame or date for an event or unforeseen event? What is unpredictable before the offer is tabled remains, in his view, especially if it refers to the 4.12 pedfrage. It would certainly be appropriate to eliminate the last seemingly superfluous part of the sentence, namely.. until the date…? Point 20.1 (a) of the 2008 FIDIC Gold Book now allows a contractor to provide the ATM with details of all the circumstances that may justify filing a late application. The clause provides that if the ATM considers the circumstances to be such that the late submission was “acceptable,” dispute resolution may terminate the condition. No definition of “acceptable” has been given, which is why a contractor is always the best person to work as if the 28-day limit strictly applies. However, there is now some room for manoeuvre. FIDIC forms of contracts anticipate the most likely scenarios in which contractors or employers assert rights. Examples of contractor claims (using FIDIC definitions and clauses) are as follows: in BSkyB Ltd v. HP Enterprise Services Ltd (2010), the defendant was unable to avail himself of a full contractual clause to submit a claim to a misrepresented allegation – on his ability to provide a project without notice. In this case, the clause did not contain a provision such as that of point 3, but a provision in point 2.
The text of item 2 was not sufficient to exclude liability for misrepresentations – the judge said that clear words were needed to exclude this liability. This indicates that the extension of time can be used either when it is clear that there is a delay (a forward-looking delay) or, at least, that the delay has begun (a retroactive delay). Therefore, this should only be communicated in the event of a real delay. In particular, the judge noted that the text of the clause was not: “Is it or will be delayed depending on what is earlier.” The judge also confirmed that the employer is required to prove that a notification is not made on time. Another exception is that the rule does not prevent the correction of the contract and that a full contractual clause does not prevent any correction.