By Dr Samer Skaik
Construction projects often evolve due to site conditions that differ from those initially anticipated. One such scenario involves variations in foundation levels or discrepancies in material requirements, such as concrete compressive strength. In this post, we explore a real-world contractual challenge and the proper procedure for handling it under FIDIC 1999, offering guidance for contractors who face similar issues.
1. The Situation: Unexpected Foundation Depth and Material Discrepancies
In a recent case, a contractor discovered—after excavation—that the actual soil conditions required a foundation level deeper than what was shown in the Issued for Construction (IFC) drawings. This led to additional excavation and increased concrete quantities. However, the engineer rejected the contractor’s claim for extra costs, stating insufficient justification was provided.
Simultaneously, the contractor noticed a discrepancy between the concrete compressive strength in the old geotechnical report and what was specified in the IFC drawings. This raised a question: which document holds precedence?
2. Understanding Contractor Rights Under FIDIC 1999
Unforeseen Site Conditions (Clause 4.12):
Under FIDIC 1999, contractors are protected from unforeseen site conditions that could not have been reasonably anticipated at the time of tender. Clause 4.12 enables contractors to claim for additional time and costs—but only if they notify the engineer promptly and provide evidence of unforeseeability.
In this case, the contractor conducted further soil investigations post-award and adjusted the foundation level accordingly. Even though they proceeded without prior engineer approval, this can still align with Clause 4.12 if the contractor promptly notified the engineer and acted with reasonable care while awaiting formal instructions.
Priority of Documents (Clause 1.5):
When contractual documents conflict, Clause 1.5 defines the hierarchy—IFC drawings and the Bill of Quantities typically take precedence over soil reports. Therefore, the contractor should comply with the strength specifications in the IFC drawings unless otherwise instructed.
Seeking Clarification (Clause 1.9):
If ambiguity exists, Clause 1.9 mandates that the contractor request clarification from the engineer. This is particularly important when a specification in older reports contradicts those in final IFC documents.
Variation and Claims Procedures (Clauses 13.1 & 20.1):
Should the deeper foundation result in higher material quantities, Clause 13.1 allows the contractor to request a variation. If the engineer refuses or delays approval, the contractor may formally escalate the issue under Clause 20.1, ensuring all supporting documentation is included.
3. Practical Advice for Contractors
-
Act fast: Prompt notification is crucial to protect your rights under Clauses 4.12 and 20.1.
-
Document everything: Site investigation results, photos, engineer correspondence, and quantity take-offs support your entitlement.
-
Follow procedure: Always submit formal requests for clarification (Clause 1.9) and claims (Clause 20.1) in writing.
-
Rely on contract hierarchy: Always prioritize IFC drawings and BOQs over older technical reports unless officially superseded.
4. Final Thoughts
Changes to site conditions and discrepancies in specifications are not uncommon. However, how contractors respond to these issues determines whether compensation and extensions can be secured. Familiarity with FIDIC’s contractual pathways—particularly Clauses 1.5, 1.9, 4.12, 13.1, and 20.1—is essential for protecting your financial and time-related interests.
If you’re facing a similar situation or need assistance preparing your claims, CMGuide is here to help.
Need Support With Your Construction Claim?
Contact us at admin@cmguide.com.au or visit cmguide.com.au to learn how we help contractors navigate complex contractual challenges under FIDIC and other international standards.