Silence Is Not Agreement: Why an Unanswered Programme Won’t Save Your Claim

A contractor submitted a revised programme. It showed completion running past the Time for Completion in the contract. The Engineer said nothing — not an approval, not an objection, nothing at all. The twenty-one days ran out.

The contractor read that silence and concluded two things. First, that the late completion date had been accepted. Second, that a programme sitting in the Engineer's inbox showing a delayed finish was, in substance, notice that the works were delayed.

Both conclusions were wrong. By the time anyone tested them, the twenty-eight days under Clause 20.1 had gone, and with them the entitlement.

I have seen versions of this on more than one project, in more than one country. It is not a stupid mistake. The logic is almost persuasive — which is exactly why it keeps happening.

What the silence actually bought

Start with what Clause 8.3 says, because it does say something, and the contractor was not imagining it.

Under the 1999 Red Book, if the Engineer does not, within 21 days of receiving a programme, give notice stating the extent to which it fails to comply with the Contract, then the Contractor shall proceed in accordance with the programme, subject to his other obligations under the Contract.

So the silence was not worthless. It bought a real thing: the right to work to that programme without the Engineer later complaining that the sequence was wrong or the logic was unacceptable. That is a genuine protection and it matters.

But look hard at what it does not say. It does not say the programme is approved. It does not say the programme is a contract document. It does not say the dates in it replace the dates in the Contract Data.

And then there is that clause at the end, which most people read straight past: subject to his other obligations under the Contract.

One of those obligations — arguably the obligation — is to complete the Works within the Time for Completion. Proceeding in accordance with a programme that shows a late finish does not release you from the duty to finish on time. The programme does not amend the Contract. Nothing in Clause 8.3 has that power. The Time for Completion changes in exactly one way: an extension determined under Clause 8.4, and Clause 8.4 runs through Clause 20.1.

The contractor thought silence had moved the finish line. It hadn't. It had only agreed not to argue about which route he took toward it.

Planning is not claiming

Here is the part that matters most, and it is not really about FIDIC. It is about what kind of document a programme is.

A programme is a statement of intent about the future. It says: this is how I plan to build the works, in this order, with these resources, arriving at this date. It is a description. It is forward-looking. It predicts.

A notice of claim is something else entirely. It is an assertion of entitlement arising from a past event. It says: this specific thing happened, it was a matter at your risk under this clause, it has affected me in this way, and I am claiming time or money as a result. It attributes. It allocates responsibility. It demands.

These are different acts. A programme showing a completion date of 14 November tells you an outcome. It says nothing whatsoever about the cause of that outcome, and nothing about who bears it. Read the programme in the contractor's case and answer me this: why is completion late? Late-issued drawings? Unforeseen ground? Contractor's own inefficiency? Rain? Under-resourcing?

The programme cannot tell you. It is silent on the only question that determines entitlement.

This is why the argument fails, and it would fail even if Clause 20.1 were drafted more generously. A notice that does not identify the event and does not assert an entitlement is not performing the function of a notice. Clause 20.1 requires a notice "describing the event or circumstance giving rise to the claim." The programme described neither an event nor a circumstance. It described a date.

The Engineer's silence, then, was silence about a document that never made a claim in the first place. You cannot fail to object to an assertion nobody made.

The sting in the tail

Now the part that ought to make you uncomfortable.

That programme was not merely useless to the contractor. There is a serious argument it was actively harmful.

Consider what the document says on its face, stripped of the contractor's intentions. It is the contractor's own signed statement, submitted under the Contract, that the works will complete after the Time for Completion — with no cause identified, no clause invoked, no entitlement asserted, and no reservation of position anywhere on it.

Read it cold. What is that, if not the contractor's own admission of culpable delay?

I am not saying it would be construed that way in every forum. But I have watched an employer's team pick up a programme submitted exactly like that and use it as the opening exhibit for delay damages. The contractor handed over a document predicting its own late completion and attached no explanation to it. That is not a shield. On a bad day it is the other side's best evidence.

If you are going to submit a programme showing a late finish, the covering letter is not a formality. It is the whole thing.

What should have happened

Three documents. Not one.

One — the programme. Submitted under Clause 8.3, doing its proper job: showing the intended sequence and the resources. Nothing wrong with it showing a late completion date if that is the honest forecast. Programmes should tell the truth.

Two — a covering letter that reserves the position. Short. Something to the effect that the programme reflects the actual anticipated completion date arising from events for which the Contractor considers itself entitled to an extension of time, that those events are the subject of separate notices under Clause 20.1, that submission is without prejudice to the Contractor's entitlement, and that the Time for Completion remains as stated in the Contract Data pending determination. That letter costs ten minutes and it converts an admission into a reservation.

Three — the actual Clause 20.1 notice. Separate document. Separate reference. Its own heading saying what it is. Naming the event. Naming the date of awareness. Naming the clause relied on. Asserting the entitlement. Sent within 28 days of awareness of that event — and the clock for each event runs from that event, not from the day the delay became visible on a Gantt chart.

That third document is the one that was missing, and no amount of Engineer silence substitutes for it. Silence answers the question you asked. The contractor never asked it.

Why "constructive notice" arguments keep losing

The instinct behind the contractor's position is a fairness instinct: the Engineer knew. He had the programme. He could see the date. He said nothing. How can he now say he wasn't told?

It is an appealing argument and it usually loses, for a reason worth understanding.

Notice provisions do not exist to convey information. If they did, the fairness argument would win — the Engineer plainly had the information. Notice provisions exist so that the recipient knows a claim is being made and can respond while the evidence is fresh: investigate the cause, mitigate the effect, instruct an acceleration, take a commercial decision, keep his own records.

None of that is triggered by a programme. An Engineer receiving a programme reviews it as a programme. He is not on notice that he must open a file, preserve records, and take a position on liability, because nothing has told him that anyone is claiming anything. The information was there. The signal was not.

Clause 20.1 in the 1999 books puts this beyond argument with an express bar: fail to notice within 28 days, and the Time for Completion shall not be extended, the Contractor shall not be entitled to additional payment, and the Employer is discharged from all liability in connection with the claim. Tribunals have generally been willing to enforce that as a condition precedent — Obrascon Huarte Lain v Attorney General for Gibraltar being the case most often cited in that line, though it is more interesting for what it says about when awareness begins than for the condition precedent point itself.

That is the trade FIDIC makes. Rights are real but conditional. The condition is procedural. Miss it and the merits never get heard.

A note on FIDIC 2017

If you are on a 2017 contract the analysis shifts slightly, and in the contractor's favour — though not in a way that would have rescued this case.

Clause 20.2.1 still requires a Notice of Claim within 28 days of awareness. But 20.2.2 adds something new: if the Engineer considers the Notice was served late, he must say so within 14 days, and if he doesn't, the Notice is deemed valid. Silence now cuts the other way.

Notice carefully what that changes. It penalises an Engineer who sleeps on a late notice. It does nothing at all for a contractor who never served one. You still have to send the document. 2017 simply means that if you send it late and the Engineer says nothing, you may survive.

The 2017 books also tightened Clause 8.3 considerably, with the Engineer's Notice of No-objection now more clearly a review of the programme as a programme. If anything, the separation between programming and claiming is cleaner in 2017, not blurrier.

What to take from this

Every notice must be recognisable as a notice. Head it as one. Cite the clause. Say the words "the Contractor gives notice under Sub-Clause 20.1." If a stranger to the project cannot tell in five seconds that they are reading a claim notice, it is not one.

Never let a document do two jobs. A programme programmes. A notice notices. The moment you ask one document to carry both functions, you have a document that does neither well and a dispute about which it was.

Never submit a late-completion programme naked. Cover it. Reserve your position. Ten minutes.

The clock runs from awareness of the event, not from the delay appearing on the programme. By the time a slip shows on the critical path you may be months past the trigger. The programme is where delay becomes visible; it is not where it becomes known.

Silence is not agreement. It is not acceptance, it is not waiver, it is not estoppel, and it is not notice. It is an absence. Read into it only what the clause expressly puts there — and Clause 8.3 puts far less there than people hope.

The contractor in this case had, as far as I could tell, a real entitlement. Events had occurred that were not his risk. Nobody ever heard about them, because the argument stopped at a procedural gate long before the merits.

That is the ordinary way FIDIC claims die. Not beaten on the facts. Never reached.