Contracts concluded on the basis of the FIDIC Conditions introduce a time limit of 28 days for submitting a claim, counted from the date on which the party submitting the claim became aware of the event or circumstance giving rise to the claim. The FIDIC Conditions provide that failure to comply with the time limit shall have the effect of releasing the other party from any liability arising in connection with the event or circumstance giving rise to the claim. Although the FIDIC stipulates a time limit for submitting a claim for both the Contractor’s and the Contracting Authority’s claims, in practice the issue mainly concerns claims submitted by the Contractor.

The admissibility of reserving the consequences of failure to comply with the time limit for submitting claims and the legal consequences of such reservations have been considered by the courts on more than one occasion. The most widespread decision in this regard is the judgment of the Supreme Court of the Republic of Poland of 23 March 2017, ref. V CSK 449/16, which, taking into account the decision of the Supreme Court of 22 June 2016, ref. III CZP 19/16, established clear rules on the time limits within which the contractor must notify the contracting authority of the circumstances giving rise to the claim.

This case law remains valid despite the passage of time. According to the judgment of the Supreme Court of the Republic of Poland of 27 April 2023, ref. II CSKP 70/23 “the time limit provided for in Clause 20.1 of the FIDIC Conditions for the Contractor to notify the Contracting Authority of circumstances justifying an extension of the time limit for completion of the works or justifying payment for additional works is a contractual time limit for a contractual act of diligence, on pain of losing a specific claim”.

It should therefore be noted that the contractor’s failure to comply with the deadline for notifying the claim may result in the loss of its right to require the contracting authority to settle the claim on the basis of the contractual provisions, but does not limit its right to pursue the claim in court.

As a result of the case law developed, the failure to comply with the contractual time limit for submitting the claim no longer leads in practice to the rejection of claims. If the assessment of the timeliness shows that the notice was submitted after the expiry of the 28-day deadline and the assessment of the merits of the claim shows that there are grounds for recognizing the claim, the contracting authority will normally accept the contractor’s claims, taking into account the risk of possible litigation and the subsequent risk of incurring additional costs arising from litigation. The use by the parties of the out-of-court dispute resolution procedure provided for in the contracts is a good practice that benefits both parties.