John Russell FCIOB
Construction Contracts & Training Consultant (Established 1984)
19 Chester Road, Holmes Chapel, Cheshire CW4 7DP
Tel : 07770 986444 Email :
swsubbie@globalnet.co.uk
Website: www.jrconsultant.co.uk
EXTENSIONS OF TIME – ANSWERS TO COMMON
QUESTIONS
Why is a delay notice important?
Delay notices are
vital to protect the subcontractor’s entitlement to extension of time and act
as a shield against financial damages from the main contractor for over run of
the original completion date. An
extension of time may also, dependent upon the reasons, entitle the
subcontractor to reimbursement of prolongation costs (ie site staff and
establishment costs, often referred as “prelims”).
When should I submit
a delay notice and what should it contain?
The notice should be
submitted as soon as the likelihood of the delay becomes apparent. A good delay notice should include date,
location and precise cause of delay, action required from the main contractor, effect on
subcontractor's programme and, if the
completion date is likely to be affected, an estimate of likely delay to
completion. Although it may not always
be essential, if the completion date is likely to be affected then it is
prudent to request an extension of time.
Do minutes of meetings
qualify as delay notices?
Very unlikely. By all means record your progress and delays
in the site minutes. They are very good evidence. However, you still need to
submit a written delay notice.
What events entitle
me to an extension of time and loss and expense?
The general rule
tends to be as follows : if the delay is due to the client or main contractor
(eg variations, late information, end client’s delays, lack of building access
etc), then there is entitlement to both time and money, if the delay is due
to a “neutral” event such as weather ,
strikes or force majeure, then there is time but no money.
Do I still need an
extension of time when the delay is obviously due to the main contractor’s slow
building progress in constructing the project?
Yes. The main
contractor does not have to prove the
subcontractor’s guilt. If a subcontractor over runs his completion date without
an extension of time, then the main
contractor is probably entitled to
deduct damages.
The main contractor
tells me that he cannot give me an extension of time because he has not been
awarded an extension under the main contract. Is he correct?
Under a standard form
of subcontract like Dom/1, this would not usually be correct. Most standard
forms provide for extension due to
“act, omission or default” of the main contractor and/or his other
subcontractors (ie lack of building progress and availability of workfaces).
Bespoke subcontracts are often worded in a more restricted way. Even here, a bespoke form of subcontract
which makes no provision for extension due to delays caused by the main
contractor’s default may still leave a
loophole by way of “time at large” (see below).
What is meant by
“time at large” and what are the implications?
If a subcontract
agreement makes no provision for the main contractor to extend the
subcontractor’s original period in respect of the former’s “acts of prevention”
(eg lack of access, weatherproof conditions or availability of work faces etc)
then delays to completion which are caused by such an act may set time at large. Therefore, bespoke forms
which attempt to restrict the subcontractor’s extension to the main
contractor’s entitlements under the main contract may in fact let the
subcontractor “off the hook”.
The effect of time being
at large is to deprive the main contractor of an enforceable completion date
and leave the subcontractor with an obligation to
complete “in a reasonable time”. As a
result, the main contractor may well lose his automatic right to deduct
liquidated damages and have to pursue
his claim as damages at large.
The main contractor
has issued me with a revised programme showing project completion now delayed
by several months. Does this mean I have an extension of time?
No, it certainly does
not. You need to analyse the revised programme and compare it with the original
version. Look for slippage in
construction of the building envelope and the implications upon the subcontract
progress. Then request an extension, based on the results of your analysis (eg delays in access to specific areas,
weatherproofing of building, interfacing works by other trades etc).
The main contractor
told me not to record delays caused by his slow building progress, but to
concentrate on variations and late information. He said by doing this we can
both get an extension of time and costs attributable to the end client. Should
I do as he says?
In a word – No. Many subcontractors have fallen for this old
chestnut. At the end of the job, they finish up with no extension of time and
no evidence to substantiate the true delays which emanated from the main
contractor’s slow building progress.
Conclusion
It is impossible to
overstate the benefit of an extension of time. It protects against damages and
gives possible entitlement to reimbursement of the subcontractor’s prolongation
costs. The streetwise subcontractor
will make sure that he submits his notices and keeps good records in order to
protect his rights.
Taken from Jack Russell’s “Contract Law”
column in “Electrical Times”
published 1 December 06.
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