When Does the FIDIC 28-Day Notice Period Start?

Under the standard FIDIC 2017 Red, Yellow and Silver Books, a Notice of Claim for additional payment and/or time must be given as soon as practicable and no later than 28 calendar days after the claiming Party became aware, or should have become aware, of the event or circumstance giving rise to the Claim.

The key point is awareness. The clock does not necessarily start simply because an event occurred, and it does not wait until the Contractor knows the final cost, has completed its delay analysis or can prove that the event affects the critical path.

Under the 1999 Red, Yellow and Silver Books, the equivalent Contractor requirement appears in Sub-Clause 20.1, rather than Sub-Clause 20.2.

Always check the executed Contract. Particular Conditions may amend the standard periods, Notice requirements or claims procedure.

FIDIC claim deadlines at a glance

Requirement	1999 Red / Yellow / Silver	2017 Red / Yellow / Silver
Initial Notice of Claim	As soon as practicable and no later than 28 days after the Contractor became aware, or should have become aware	As soon as practicable and no later than 28 days after the claiming Party became aware, or should have become aware
Fully detailed Claim	Normally 42 days after awareness, not 42 days after the Notice	Normally 84 days after awareness, not 84 days after the Notice
Consequence of late Notice	Express Contractor time bar under Sub-Clause 20.1	Express time bar under Sub-Clause 20.2.1; under Sub-Clause 20.2.2 the Engineer, or the other Party under the Silver Book mechanism, has 14 days to notify that the Notice was late, otherwise it is deemed valid
Who is subject to the mechanism?	Contractor claims under 20.1; Employer claims dealt with separately under 2.5	Sub-Clause 20.2 applies to relevant Claims by both Parties

The 2017 edition also introduced a second time-bar mechanism at the fully detailed Claim stage. The critical 84-day issue relates particularly to submission of the statement of the contractual and/or other legal basis of the Claim; it is not accurate to assume that every deficiency in the detailed submission automatically extinguishes the Claim.

When does the FIDIC 28-day period start?

The contractual question is:

When did the claiming Party become aware, or when should it reasonably have become aware, of the event or circumstance giving rise to the Claim?

That can be harder than identifying the date of the physical event.

A project team may know that something has happened before it understands its full contractual significance. Conversely, the records may show that the Contractor should reasonably have recognized the issue earlier than the date on which the commercial team formally opened a Claim.

FIDIC's published answer to "When does the 28 days start - from awareness, or from the date the event is on the critical path?" points directly back to the Sub-Clause 20.2.1 awareness test. FIDIC: When does the 28 days start?

Example 1: delayed access

Assume the Contractor is due access to an area on 1 June.

Access is not available on 1 June and the site diary records the restriction. On 4 June, the Engineer says access may be delayed for another two weeks. On 12 June, the planner demonstrates that the delay affects the critical path.

Waiting until 12 June to start the 28 days would be risky.

The event or circumstance giving rise to the Claim may have been apparent much earlier. Depending on the Contract and the facts, 1 June or 4 June could be the relevant awareness date.

Example 2: instruction or possible Variation

An instruction is issued on 5 May.

The site team initially treats it as a clarification. On 10 May, the QS identifies additional quantities. On 18 May, the commercial team concludes that the instruction gives rise to a contractual entitlement.

Which date starts the clock?

There may be arguments for different dates. The practical step is to identify all plausible awareness dates, establish what the Contractor knew at each point and manage the Notice against the earliest credible trigger.

Do not simply choose the date that gives the most comfortable deadline.

How should you evidence the awareness date?

If Notice timing is challenged later, the answer will usually be found in the contemporary project record.

Useful evidence can include site diaries, daily reports, instructions, RFIs, correspondence, meeting minutes, photographs, design registers, programme updates and internal commercial records.

Ask three questions:

1. What event or circumstance gives rise to the potential Claim?
2. When is there evidence that the Contractor actually knew about it?
3. Is there an earlier date on which the Contractor should reasonably have known?

Contemporary records are also part of the claims machinery itself. Under the standard 1999 Sub-Clause 20.1 procedure, the Contractor must keep records needed to substantiate the Claim, and the Engineer can monitor that record-keeping. The 2017 procedure retains an express contemporary-records requirement in Sub-Clause 20.2.3.

Do not wait until the cost or delay is fully known

A common mistake is:

"We aren't ready to notify because we don't know what the Claim is worth yet."

That confuses the initial Notice with the fully detailed Claim.

The initial Notice identifies the relevant event or circumstance while the consequences may still be developing. The later detailed Claim is where the Contractor develops the contractual basis, causation, programme impact, records and quantum.

Under the standard 1999 mechanism, the fully detailed Claim is normally due within 42 days after the Contractor became aware, or should have become aware, of the event or circumstance, not 42 days after the Notice. FIDIC's published Contractor's claims answer explains that failure to meet the 42-day requirement does not, by itself, allow the Claim to be rejected solely for lateness; the initial 28-day Notice is treated differently. FIDIC: Contractor's claims questions and answers

Under the standard 2017 mechanism, the fully detailed Claim is normally due within 84 days after the claiming Party became aware, or should have become aware, of the event or circumstance, not 84 days after giving the Notice of Claim. The procedure also contains a second time-bar mechanism concerning failure to provide the required statement of contractual and/or other legal basis within that timetable. ICC commentary on claims under FIDIC 2017

So if the entitlement is potentially material, notify first and substantiate properly afterwards rather than waiting for perfect information.

Common mistakes with the 28-day period

Starting from the date the commercial team recognized the Claim

The site or project team may have known about the underlying event much earlier.

Internal classification as a "Claim" is not necessarily the contractual trigger.

Waiting for critical-path impact

The Notice clock does not necessarily wait for a completed delay analysis. The relevant test under the standard wording is awareness of the event or circumstance.

Counting working days

Under the standard FIDIC definition, a "day" is a calendar day. Always check whether the Particular Conditions change the standard position.

Assuming ordinary correspondence was already a Notice

An RFI, progress report or meeting minute may prove that the Contractor knew about an issue without necessarily satisfying the contractual requirements for a Notice.

Under the 2017 procedure, the communication must be in writing and identified as a Notice. Do not assume ordinary project correspondence has protected the Claim merely because it records the underlying issue.

That creates a particularly dangerous situation: a project record may help establish that the Contractor was aware of an event without itself protecting the Contractor's Claim.

Ignoring separate contractual notices

The substantive clause giving rise to entitlement may impose its own notification requirement.

For example, under the Red and Yellow Books, an unforeseeable physical conditions Claim may engage Sub-Clause 4.12 as well as the Clause 20 claims procedure. FIDIC's description of the 2017 suite specifically identifies Sub-Clause 4.12 [Unforeseeable Physical Conditions] in the Red and Yellow Books, rather than the Silver Book.

Checking Clause 20 alone is therefore not always enough.

What should you do if the deadline is close?

If there is a credible potential Claim and the 28-day period may be running out:

1. Identify the earliest plausible awareness date. Build a short chronology rather than relying on memory.
2. Check the executed Contract. Review the entitlement clause, Clause 20, Particular Conditions, Notice recipient and permitted communication method.
3. Issue the Notice promptly. Do not wait for final quantum or delay analysis. Keep it factual, concise and non-accusatory.
4. Preserve the records and diary the next deadline. Retain proof of service and immediately track the 42-day or 84-day detailed-Claim requirement.

Early notification does not need to damage the project relationship. A factual Notice that identifies the event and states that its consequences are being investigated is generally better contract administration than allowing commercial sensitivity to create a time-bar problem.

For more detail on what the initial Notice itself should contain, see Hecato's FIDIC Clause 20.2 Notice of Claim guide.

What if the 28 days may already have expired?

Do not automatically abandon the Claim.

Under standard 1999 Sub-Clause 20.1, failure to give the initial Notice within the 28-day period carries an express time-bar consequence for the Contractor.

The 2017 procedure is more elaborate.

If the Engineer considers a Notice of Claim late, Sub-Clause 20.2.2 requires the Engineer to give a Notice to that effect within 14 days after receiving it. If that does not happen, the Notice of Claim is deemed valid under the contractual mechanism. Under the Silver Book, the corresponding step is performed by the other Party rather than an Engineer.

Deemed validity does not establish substantive entitlement. Under the Red and Yellow Books, the other Party may challenge the deemed validity of the Notice through the contractual procedure, with that disagreement considered under Sub-Clause 20.2.5. If the claiming Party disputes the Engineer's lateness Notice, or considers that circumstances justify the late submission, the details should be included in the fully detailed Claim.

Under Sub-Clause 20.2.5, relevant considerations can include prejudice to the other Party and evidence that the other Party already knew about the event or circumstance giving rise to the Claim.

If the deadline may have been missed:

• issue the Notice without further delay;
• reconstruct the awareness chronology;
• preserve evidence supporting the different potential trigger dates;
• identify evidence of the other Party's prior knowledge;
• check the 14-day response mechanism; and
• check the Particular Conditions before conceding that the Claim is time-barred.

Is an Advance Warning a Notice of Claim?

No.

The 2017 suite introduced Sub-Clause 8.4 [Advance Warning] as a separate contract-management mechanism.

It should not be assumed to replace a Notice of Claim under Sub-Clause 20.2.1. If both obligations apply, deal with both.

28-day notice checklist

• ✓ Confirm the FIDIC form and edition.
• ✓ Check the Particular Conditions for amendments.
• ✓ Identify the precise event or circumstance giving rise to the potential Claim.
• ✓ Identify the relevant contractual entitlement.
• ✓ Establish the actual and potential constructive-awareness dates.
• ✓ Find contemporary records supporting those dates.
• ✓ Calculate the 28-day period using the Contract's definition of "day".
• ✓ Check whether another Sub-Clause requires a separate notice.
• ✓ Confirm the required recipient and communication method.
• ✓ Ensure the communication is properly identified as a Notice.
• ✓ Retain proof of transmission or receipt.
• ✓ Diary the subsequent 42-day or 84-day requirement.
• ✓ For a potentially late 2017 Notice, check the 14-day response mechanism.