This document discusses time-bar clauses in standard construction contracts. It begins with an introduction that defines time-bar clauses and notes their increasing use. It then outlines the purposes of time-bar clauses such as alerting employers to claims and allowing for timely evaluation. The document reviews general legal principles around time-bar clauses from relevant case law. It examines the effectiveness of time-bar clauses in contracts like FIDIC and discusses requirements for notices of claims and record keeping. The role of the quantity surveyor is also mentioned.

1. Time-bar Clauses in Standard
Conditions of Contracts
W.K.Amila Gayan
B.Sc. (Hons.) in QS, LLM (Cons.Law & Arbi.), FCIArb., MRICS,AIQS(SL)
Commercial Manager - AlTurki Enterprises LLC
Chartered Quantity Surveyor/Board Member of RICS
MENA Construction & QSWorking Group/ RICS and IQSSL
Counsellor/Supervisor
Disclaimer
The information contained in this presentation is for education purposes only and should not
be considered as legal advice. The information presented should not be acted upon without
professional advice.

2. Contents
Introduction
Purposes of time bar clauses
General legal principles
Effectiveness of time bar clauses
Role of QS
Q& A

3. Introduction
Oxford dictionary defines bar as “A barrier or
restriction to an action”.
A clause in a contract which sets a strict
deadline within which the party who entitle for a
claim, shall comply with to exercise the right of
his claim.
There is an increase use of time bar clauses in
standard forms of contracts.
The discussion is limited to time bar clauses
related additional cost and extension of time. Ex:-
FIDIC 1999 clause 20.1, NEC 3 clause 61.3
The key question is whether the time bar
clauses are effective in disallowing contractor’s
claims/a complete defence to contractor’s claim

4. ‘If the Contractor considers himself to be entitled to any
extension of the Time for Completion and/or any
additional payment, under any Clause of these
Conditions or otherwise in connection with the
Contract, the Contractor shall give notice to the
Employer, describing the event or circumstance giving
rise to the claim. 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.’
SampleTime Bar Clause –
Clause 20.1 FIDIC 99

5. ‘If the Contractor fails to give notice of a claim within
such period of 28 days, the Time for Completion shall not
be extended, the Contractor shall not be entitled to
additional payment, and the Employer shall be discharged
from all liability in connection with the claim . . .’
SampleTime Bar Clause –
Clause 20.1 FIDIC 99

6. Purposes of time bar clauses
To alert Employer/Engineer on Contractor’s
claims
Enable Employer to take appropriate actions
to manage/mitigate additional cost & time
Allow to check the contemporary records
and swift evaluation of claims
Avoid forensic analysis of claims
Prevent accumulation of claims

7. General legal principles
Temloc v Errill Properties (1987) 39 BLR 30
 Time scales in construction contracts are directory and not mandatory.
 The contractors should not lose the right of claim due to non
compliance of the time scale for submission of notices/details of claims
stipulated in the contract.
Bremer Handelgesellschaft mbH v Vanden Avenne Izegem PVBA
[1978] 2 Lloyd’s Rep. 113
 The House of Lords held that a notice provision should be construed
as a condition precedent,
(i) it states the precise time within which the notice is to be
served; and
(ii) it makes plain by express language that unless the notice is
served within that time the party making the claim will lose its rights under
the clause.

8. Effectiveness of time bar clauses-FIDIC
1999 (Slide-01)
Clause 20.1 (Contractor’s Claim) of FIDIC 1999
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999 Red
(CONS),Yellow (P & DB) and Silver (EPCT) Books.
 Wording of all three books are similar except the word
“Employer” replaces “Engineer” in the Silver Book.
 Describes the procedure to follow by the Contractor to
claim additional cost or extension of time.
 Lengthy clause around 10 paragraphs/665 words.

9. Effectiveness of time bar clauses-FIDIC
1999 (Slide -02)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
“If the Contractor considers himself to be entitled to any extension of
the Time for Completion and/or any additional payment, under
any Clause of these Conditions or otherwise in connection with
the Contract, the Contractor shall give notice to the Engineer,
describing the event or circumstance giving rise to the claim. 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..”
 Notice requirement is for EOT or any additional cost.
 The claim procedure described here applies for all claims for
additional cost and time in the contract

10. Effectiveness of time bar clauses-
FIDIC 1999 (Slide -03)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
 Following are some examples from Red Book where the contractor can
claim additional time or cost.
o Clause 1.9 – Delayed drawings or instructions
o Clause 2.1 – Right to access the site
o Clause 4.7 – Errors in original setting out points/levels
o Clause 4.12 – Unforeseeable physical conditions
o Clause 7.4 – Additional tests
o Clause 8.4 – Causes for EOT
o Clause 8.5 – Delay caused by Authorities
o Clause 8.9 – Suspension of Works
o Clause 13.2 –Value Engineering
o Clause 13.3 –Variation Procedure
o Clause 13.7 – Changes in Legislation
o Clause 14.8 – Delayed Payments
o Clause 16.4 – Payments on Termination
o Clause 17.4 – Consequences of Employer Risk Events
o Clause 19.4 – Consequences of Force Majeure
 The above Clauses states that the Contractor's entitlement for time or
cost is subject to Clause 20.1

11. Effectiveness of time bar clauses-FIDIC 1999
(Slide -04)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
 Notices shall be in writing and properly delivered to recipient
as per clause 1.3.
 The word “notice” is not a defined term in the contract.
 “The Contractor has merely to give a bare notice of claim
within 28 days. A one- or two-sentence letter will do. The
Contractor does not need to state the amount or time claimed
nor the contractual basis of the claim nor provide any supporting
documents.” (C.R.Seppala, 2001)

12. Effectiveness of time bar clauses-FIDIC
1999 (Slide -05)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
“If the Contractor fails to give notice of a claim within
such period of 28 days, the Time for Completion shall not be
extended, the Contractor shall not be entitled to additional
payment, and the Employer shall be discharged from all
liability in connection with the claim. Otherwise, the
following provisions of this Sub-Clause shall apply.”
 Satisfy Bremer’s Case guidelines; precise time for a notice
to be served and states unambiguously failing to submit
notice will lose the right to claim.

13. Effectiveness of time bar clauses-FIDIC
1999 (Slide -06)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
“The Contractor shall also submit any other notices which are
required by the Contract, and supporting particulars for the
claim, all as relevant to such event or circumstance.
The Contractor shall keep such contemporary records as may
be necessary to substantiate any claim, either on the Site or at
another location acceptable to the Engineer. Without admitting
the Employer’s liability, the Engineer may, after receiving any
notice under this Sub-Clause, monitor the record-keeping and/or
instruct the Contractor to keep further contemporary records.
The Contractor shall permit the Engineer to inspect all these
records, and shall (if instructed) submit copies to the Engineer.”
 Specify the requirement to keep contemporary records.
 Engineer is vested with the authority to instruct keep further
contemporary records.

14. Effectiveness of time bar clauses-FIDIC
1999 (Slide -07)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
“Within 42 days after the Contractor became aware (or should have
become aware) of the event or circumstance giving rise to the claim, or
within such other period as may be proposed by the Contractor and
approved by the Engineer, the Contractor shall send to the Engineer a
fully detailed claim which includes full supporting particulars of the
basis of the claim and of the extension of time and/or additional
payment claimed. 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.”
 Specify the timelines to submit the details of claim.

15. Effectiveness of time bar clauses-FIDIC
1999 (Slide -08)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
“Within 42 days after receiving a claim or any further particulars
supporting a previous claim, or within such other period as may
be proposed by the Engineer and approved by the Contractor,
the Engineer shall respond with approval, or with disapproval and
detailed comments. He may also request any necessary further
particulars, but shall nevertheless give his response on the
principles of the claim within such time.
Each Payment Certificate shall include such amounts for any
claim as have been reasonably substantiated as due under the
relevant provision of the Contract. Unless and until the
particulars supplied are sufficient to substantiate the whole of the
claim, the Contractor shall only be entitled to payment for
such part of the claim as he has been able to substantiate.”
 Specify the timeline that Engineer shall response to the
Contractors Claims.

16. Effectiveness of time bar clauses-FIDIC
1999 (Slide -09)
 Clause 20.1 (Contractor’s Claim) of FIDIC 1999
“The Engineer shall proceed in accordance with Sub-Clause 3.5 [
Determinations ] to agree or determine (i) the extension (if any) of
theTime for Completion (before or after its expiry) in accordance
with Sub- Clause 8.4 [ Extension of Time for Completion ], and/or
(ii) the additional payment (if any) to which the Contractor is
entitled under the Contract.
The requirements of this Sub-Clause are in addition to those of any
other Sub-Clause which may apply to a claim. If the Contractor fails
to comply with this or another Sub-Clause in relation to any claim,
any extension of time and/or additional payment shall take account
of the extent (if any) to which the failure has prevented or
prejudiced proper investigation of the claim, unless the claim is
excluded under the second paragraph of this Sub-Clause.”
 If the Contractor’s claim is not time barred but failed to satisfy the
procedure described in this clause, the Contractor’s entitlement may be
limited.

17. Effectiveness of time bar clauses-FIDIC
1987 (Slide -01)
 FIDIC 1987 address the additional time and cost separately.
 Clause 44.1 & 2 (Extension ofTime for Completion) 1987
“In the event of
(a) the amount or nature of extra or additional work,
(b) any cause of delay referred to in these Conditions,
(c) exceptionally adverse climatic conditions,
(d) any delay, impediment or prevention by the Employer, or
(e) other special circumstances which may occur, other than through a default of
or breach of contract by the Contractor or for which he is responsible.
being such as fairly to entitle the Contractor to an extension of the Time for Completion
of the Works, or any Section or part thereof, the Engineer shall, after due consultation
with the Employer and the Contractor, determine the amount of such extension and shall
notify the Contractor accordingly, with a copy to the Employer.”
“Provided that the Engineer is not bound to make any determination unless the
Contractor has
(a) within 28 days after such event has first arisen notified the Engineer with a copy
to the Employer, and
(b) within 28 days. or such other reasonable time as may be agreed by the
Engineer, after such notification submitted to the Engineer detailed particulars of
any extension of time to which he may consider himself entitled in order that such
submission may be investigated at the time.”

18. Effectiveness of time bar clauses-FIDIC
1987 (Slide -02)
 Does the Clause 44.2 satisfy Bremer’s Case guidelines?
o precise time for a notice to be served and
o states unambiguously failing to submit notice will
lose the right to claim
 Does the wording “Engineer is not bound to make any
determination” express clearly the Contractor’s failure to
give notice shall lose his right to claim EOT?
 Deadlines on time for submitting notices may not
amount to condition precedent.

19. Effectiveness of time bar clauses-FIDIC
1987 (Slide -03)
 Clause 53.1 (Notices of Claims) of FIDIC 1987
“Notwithstanding any other provision of the Contract, if the Contractor
intends to claim any additional payment pursuant to any Clause of these
Conditions or otherwise, he shall give notice of his intention to the
Engineer, with a copy to the Employer; within 28 days after the event
giving rise to the claim has first arisen.”
 Clause 53.4 (Failure to Comply) of FIDIC 1987
“If the Contractor fails to comply with any of the provisions of this
Clause in respect of any claim which he seeks to make, his entitlement to
payment in respect thereof shall not exceed such amount as the Engineer
or any arbitrator or arbitrators appointed pursuant to Sub-Clause 67.3
assessing the claim considers to be verified by contemporary records
(whether or not such records were brought to the Engineer’s notice as
required under Sub-Clauses 53.2 and 53.3).”
 Failure by the Contractor to adhere to provisions in Clause 53.1,53.2
and 53.3 should not bar the Contractor from receiving remuneration for
any work which the Contractor can substantiate from contemporary
records. (Guide to the use of FIDIC, 1989)

20. Effectiveness of time bar clauses-Oman
Conditions 1981/99 (Slide -01)
 Clause 44 (Extension forTime for Completion)
“Should the amount of extra or additional work of any kind or any
cause of delay referred to in these conditions, or exceptional
adverse climatic conditions, or other special circumstances of any
kind whatsoever which may occur, other than through a default of
the Contractor; be such as fairly to entitle the Contractor to an
extension of time for the completion of the Works, the Engineer
shall determine the amount of such extension and the Engineer shall
consult with and provide to the Employer a detailed written report
giving the reasons for his decision to extend the completion date
prior to notifying the Contractor provided that the Engineer is not
bound to take into account any extra or additional work or other
special circumstances unless the Contractor has within twenty –
eight days after such work has been commenced, or such
circumstances have arisen, or as soon thereafter as is practicable,
submitted to the Engineer’s Representative full and detailed
particulars of any extension of time to which he may consider
himself entitled in order that such submission may be investigated at
the time. Provided that the decision of the Engineer regarding
extension of time shall be final and binding.”

21. Effectiveness of time bar clauses-Oman
Conditions 1981/99 (Slide -02)
 Clause 52.5 (Claims)
“The Contractor shall send to the Engineer’s Representative
once in every month an account giving particulars, as full and
detailed as possible, of all claims for any additional payment to
which the Contractor may consider himself entitled and of all
extra or additional work ordered by the Engineer which he has
executed during the preceding month.
No final or interim claim for payment for any such work or
expense will be considered which has not been included in such
particulars. Provided always that the Engineer shall be entitled to
authorize payment to be made for any such work or expenses,
notwithstanding the Contractor’s failure to comply with this
condition, if the Contractor has, at the earliest practicable
opportunity, notified the Engineer in writing that he intends to
make a claim for such work and has as soon as is practicable
thereafter send detailed particulars of the claim.”

22. Prevention PrincipleVTime Bar Clauses
 Prevention Principle
One party [the contractor] to a contract has failed to perform
a condition of that contract [e.g. complete the works by the
completion date], the other party [the employer] cannot rely
on its non-performance if it was caused by his own wrongful
act. [ Roberts v.The Bury Improvement Commissioners (1870) LR 5
CP 310, Holme v. Guppy (1838) 3 M&W 387]
 ‘There are, however, conceptual difficulties, it is submitted, where
the event causing delay has been caused by the employer’s default . .
. There is no authority on whether the employer can in those
circumstances recover liquidated damages. It is arguable that
although the contractor may not be entitled to an extension of
time, the employer would not be able to recover liquidated
damages on the basis that he cannot take advantage of his own
breach of contract.’ (Keating on Building Contracts, 2001)

23. Prevention PrincipleVTime Bar Clauses
 It has been held that prevention principle defeats time bar clauses in
Australian cases of Gaymark Investments Pty Ltd v. Walter Construction
Group Ltd (1999) 18 BCL 449 and Peninsula Balamain Pty Ltd v. Abigroup
Contractors Corp Pty Ltd [2002] NSWCA 211.
 However, in Scottish case City Inns Ltd v. Shepherd Construction Ltd
ScotCS 146, the judge took a robust a robust judicial view was taken
of the contractor’s obligation to comply with an express time-bar
clause.
 In this case, the employer argued that liquidated damages should be
payable since the contractor had failed to comply with the express
time-bar clause.The judge agreed with the employer, stating:
‘if he [the Contractor] wishes an extension of time, he must
comply with the condition precedent that clause 13.8
provides for these specific circumstances . . . But if the
contractor fails to take the specified steps in clause 13.8.1,
then, unless the architect waivesthe requirements of the
clause under13.8.4, the contractor will not be entitled to an
extension of time on account of that particular instruction.’

24. Role of QS in relation to time bar clauses
 Represent Client/Developer at pre-contract
stage
o Identify the effectiveness of time bar clauses provided
the employer requires to include such clause in a
contract.
o Understand that the this is a fertile area for disputes.
o Obtain legal advice.
 Represent Contractor at pre-contract stage
o Identify the risk of loosing potential claims due to time
bar.
o Carefully consider the construction management and
supervision cost.
o Consider the additional requirement of QSs/Planners.

25. Role of QS in relation to time bar clauses
 Represent Client/Developer at post-contract stage
o Identify the effectiveness of time bar clause.
o Agree on the forms of communication at the outset.
o Prompt actions/determinations on notices/claims.
o Request for additional contemporary records if required.
o Consistent approach on rejection of claims on the basis of
time barred to avoid waiver arguments.
 Represent Contractor at post-contract stage
o Be vigilant on instances where additional time and cost could
be claimed.
o Deliver the notices prior to deadlines.
o Develop a mechanism to keep site contemporary records.
o Submit the contemporary record and details of claims within
specified time lines.