Float Ownership in FIDIC Silver Book EPC Contracts

This is the fifth blog post in a series on float ownership. The first post addressed what float is, why it matters, main approaches to float ownership, practical considerations, common approaches in the U.S. and other countries, and recommendations. The second post discussed float ownership for lump-sum turnkey engineering, procurement, and construction (EPC) projects and offshore and mega-infrastructure projects, and the third post covered collaborative NEC projects and contractor-driven fast-track projects.

EPC contracts typically take two basic forms. They are either customized, negotiated contracts or are based on the FIDIC Silver Book. The fourth post discussed typical float-related provisions in customized EPC contracts, and this fifth post explores float-related provisions in Silver Book EPC contracts.

Subsequent posts will address these topics:

• Float ownership provisions in AIA contracts
• Float ownership provisions in the AGC/ConsensusDocs 200 – Standard Owner/Constructor Agreement (2023)
• Float ownership provisions in FIDIC Red Book 2017 contracts
• Float ownership under industry delay analysis standard practices

The FIDIC Silver Book
The Silver Book is a core form published by the International Federation of Consulting Engineers (FIDIC). The book is formally titled Conditions of Contract for EPC/Turnkey Projects and is often simply called the EPC/Turnkey Contract. The 2017 edition is designed for EPC or turnkey projects where a contractor assumes almost total responsibility for both design and construction, delivering a complete, ready-to-operate facility to the owner.

Float Ownership and Concurrent Delay
Float is the amount of time by which an activity or project may be delayed without impacting the project completion time recorded in the then-current, approved schedule. While the Silver Book does not mention float ownership, Clause 8.3 requires contractors to submit a detailed schedule showing order and timing of activities, logic and sequencing, the critical path, and completion time. Periodic schedule updates are required, but the schedule is a management tool; it does not alter the contract completion date. Delays to planned early finish do not create entitlement merely because planned early finish is affected. The 2017 edition includes a detailed claims procedure, notice and contemporary records requirements, and defined claim assessment mechanisms.

Many EPC contracts based on the Silver Book are heavily amended. In project-financed energy projects, it is common to see bespoke clauses stating that total float is a project resource, no contractor has exclusive entitlement to float, and EOT only arises when the contract completion date is impacted.

The 2017 edition does not define or expressly mention “concurrent delay.” However, one can infer treatment of concurrency from these clauses:

1. Sub-Clause 8.5 – Extension of Time for Completion
2. Sub-Clause 4.1 – Contractor’s General Obligations
3. Sub-Clause 8.3 – Programme
4. Sub-Clause 18.1 – Exceptional Events (formerly Force Majeure)
5. Sub-Clause 3.5 – Agreement or Determination

From these clauses, the industry has inferred how to handle concurrency. The consensus in both industry practice and arbitral interpretation is that under the FIDIC Silver Book, concurrent delay entitles contractors to time but not money. Tribunals often apply time-only for true concurrency—but this derives from causation principles, not from explicit FIDIC wording.

Like most customized EPC contracts, the EPC/turnkey structure of the Silver Book intentionally assigns maximum risk to contractors for time and cost. Thus, unless employer delay is the sole critical cause, the contractor does not recover prolongation costs. The Silver Book grants EOT where completion is delayed by listed causes and separately governs cost entitlement. Sub-Clause 8.5, Extension of Time for Completion, states:

The Contractor shall be entitled subject to Sub-Clause 20.2 [Claims for Payment and/or EOTs] to an extension of the Time for Completion if and to the extent that completion… is or will be delayed by… any of the causes listed…

In the Silver Book, employers (not independent engineers) typically perform the determination function (Sub-Clause 3.5). That means:

1. Employers assess whether both parties contribute to a delay and make determinations fairly. It is not pure discretion; it must be impartial and follow the contract mechanism. The Dispute Avoidance/Adjudication Board (DAAB) or arbitration may review failure.
2. If there is concurrency, EOT is granted “if and to the extent that” listed causes delay completion. Cost entitlement requires separate causation analysis. If employer delay is concurrent and causes prolongation costs, some tribunals may award partial recovery, depending on governing law. Thus, time-only is common but not guaranteed.
3. Under Clause 21, the DAAB or arbitration may later review any dispute.

Thus, employers have substantial discretion, and concurrency usually results in time-only settlements.

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