(MENAFN- Gulf Times) It is Sunday morning; remembering it is my wife's birthday on Monday (I am sure most men have experienced this at least once in their lives), in a bid to stay in the ‘good books' I placed an order with the florists, online. I selected a bunch of 100 red roses, choosing next day delivery and paid using my credit card.
I arrived home, early from work Monday evening greeting my wife, 'Happy Birthday! Do you like your flowers? My wife looked confused, responding with a blunt and slightly angry response, 'No!
Surprised by the response I contacted the florists. The florists confirmed that unfortunately due to a mechanical fault in the engine of the delivery van, they were not able to deliver, confirming a new delayed delivery now scheduled for Wednesday. Adding to this the florists informed me that there is also an additional charge for using a credit card rather than paying cash on delivery!
It goes without saying that like me, you would be surprised and taken back by the lack of notification, both for the delay in delivery and the additional charges.
Let us think about this for a moment. Do the florists have an obligation to notify me? This of course all depends on the terms and conditions you agreed with the florists when placing the order. You may have chosen to accept the terms and conditions, which in this example confirmed that ‘the florists will endeavour to deliver on your specified date. In the unlikely circumstance they cannot the florist will not notify you unless the flowers cannot be delivered at all' and ‘the florists reserve the right to deduct charges when paying with a credit card'.
So, what does the birthday flower delivery have to do with construction contracts? Believe it or not, it is not too dissimilar to construction contracts at all. Let's imagine a contractor is constructing a multi-storey apartment block. When excavating the basement the contractor unexpectedly uncovers a live sewer, not shown or detailed on any drawings. Apart from the fact there will be additional costs for the re-location of the sewer, the contractor, based on his experience, would know this additional work will have an impact on the time to complete the project.
Many employers are not necessarily involved in the day-to-day running of the project. So let's now imagine the employer, on or around the planned completion date of the project, receives a claim from the contractor for additional time to complete the work and requests additional costs for completing the re-location of the sewer. The employer would of course be surprised that he was not notified of this issue earlier so they could let other stakeholders, financiers and end users know of the delay and additional costs.
To overcome this issue most construction contracts require contractors to issue a notice, this is sometimes known in the construction industry as an ‘early warning notice'. The notice is as expected a notice or early warning of an event that may give rise to a claim.
FIDIC Redbook 1999 form of contract, Clause 20.1 states ‘….the contractor shall give notice to the engineer, describing the event or circumstance giving rise to the claim'. Clause 20.1 also requires the notice to be issued in a specific time period and states ‘The notice shall be given as soon as practicable, and not later than 28 days after the contractor became aware, or should have become aware, of the event or circumstance'.
Just like the example I provided or should I say reality of ordering my wife flowers, the terms of the contract stipulates that in this case the florists did not have to notify me, so the risk was on my part to check the delivery date. Following the FIDIC contract the risk is placed on the contractor, firstly to notify and secondly to notify within 28 days. Contractor's failure to notify the engineer/employer could render a claim in the future as void by not complying with the terms of the contract.
For me, regardless of contract requirements, it is always best to keep engineers/employers notified of claims for delay and or additional costs. I now owe my wife two bunches of flowers for failing to notify her the flowers would be delivered later than expected!
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