We recently received the Engineer's Determination on our claim for financing charges under 14.8 [Delayed Payment] on
the delayed payment of the prolongation costs. The Engineer said as a condition precedent for our entitlement
for such financing charge, we need to prove that it is actually
suffered as a loss. As we consider the Delay Damage for the delayed completion of the Works, the Employer enjoys the benefit of setting certain percentage as a liquidated damages by putting the Contractor to
prove the sum specified is a penalty and not a genuine pre-estimate of loss.While the liquidated damages under the sub-clause
8.3 is deemed as equivalent to financing charges for the Contract Price per day and the daily cost of the Employer's Personnel involved to supervise the execution of Works, I cannot understand why they get different treatment? Why the Employer does not have burden of proof that it really sustained such loss especially that it really spent such financing charges? If we draft the delayed payment damage in a similar way as the delayed damage for the late completion such as by labelling the clause as "liquidated damages", then would this problem can be solved?