FIDIC / Legal Reference: FIDIC Red Book Clause 1.1.6.8
Not reasonably foreseeable by an experienced contractor at the time of submitting the tender. The concept of ‘unforeseeable’ is a key threshold in physical conditions claims under Clause 4.12 — the contractor must demonstrate that conditions encountered could not have been anticipated by an experienced contractor carrying out reasonable pre-tender investigations.
What it means in practice
The ‘experienced contractor’ test is an objective one — it asks what an experienced contractor engaged in similar work would have anticipated, not what this particular contractor did or did not foresee.
Conditions commonly held to be unforeseeable in UAE construction include: highly variable ground conditions such as sabkha (salt flats), unexpected man-made obstructions, groundwater levels significantly different from borehole data, and rock encountered where the borehole log showed soft ground.
Where disputes arise
Employers routinely argue that conditions encountered were foreseeable from available data — including published geological surveys, historical borehole records, and visible site features. The contractor’s burden is to demonstrate that those data sources did not indicate the conditions actually encountered.
UAE Context
UAE ground conditions — particularly in coastal areas with sabkha soils, fill areas, and zones of caprock — generate significant physical conditions claims. The availability of pre-tender borehole data is often central to the dispute.
Related terms
Physical conditions and unforeseeable conditions claims require specialist geotechnical and FIDIC expertise. e-Basel provides expert witness and claims advisory support for UAE construction disputes.
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