The 28-day notice under FIDIC

What the contract says

Under the FIDIC 2017 Red Book, Sub-Clause 20.2.1, the Contractor must give a Notice of Claim as soon as practicable, and not later than 28 days after it became aware, or should have become aware, of the event or circumstance. If the notice is not given within those 28 days, the Contractor is not entitled to additional time or payment, and the Employer is discharged from liability in connection with that event.

The 1999 Red Book, Sub-Clause 20.1, has the same 28-day notice. The difference is what follows: in 1999 the fully detailed claim is due within 42 days, in 2017 within 84 days under Sub-Clause 20.2.4.

When the 28 days start

The clock starts from awareness, not from the end of the event and not from the moment the cost is known. An instruction received today, a late drawing, a closed access road: each starts its own 28 days. Waiting to see how bad it gets is the most common way to miss the deadline.

What a good notice contains

• The event, described in plain words, and the date you became aware of it.
• The clause that gives the entitlement, as well as the claims clause.
• Whether you claim time, money or both.
• The records you are keeping from today.

A notice does not need the amount or the number of days. Those come later. It needs to be on time and clear enough that nobody can say they did not understand it.

Call it a Notice

Under the 2017 edition, Sub-Clause 1.3 requires a Notice to be in writing and identified as a Notice. Open the letter with "Notice of Claim under Sub-Clause 20.2.1". Phrases such as "we reserve our rights" invite the argument that no Notice was given.

A delay discussed in a progress meeting and recorded in the minutes is not a Notice. Send the formal letter as well, through the channel the contract names.

Factual, not confrontational

A Notice is an administrative step the contract requires, not an attack on the Engineer. State the facts, link them to the clauses, and confirm what you are doing on site to limit the effect.

When the event keeps going

If the event has a continuing effect, Sub-Clause 20.2.6 treats the fully detailed claim as interim. Further interim claims follow at monthly intervals until the effect ends, then a final one within 28 days.

After the notice

Under the 2017 edition, the Engineer has 14 days to say that the notice was late. If the Engineer stays silent, the notice is deemed valid, although the Employer can still dispute this later. Keep contemporary records from the day of the event: they are what the detailed claim will stand on.

Always check the Particular Conditions. Many contracts change these periods, and the amended period is the one that counts.

This note is general information, not legal advice for a specific contract.