Application and Assessment of Extension of Time Claim

Application and Assessmen t of Extensionof Time Claim: Findings of Case Studies

Conducted in Malaysia

M .S. Mohd Da uuri, M. Othman, H. Abdul-Rahman and C. C. Lim

Ce n tre for Project and Facilities Man agement (CPFM)Facult y of the Built Environment

Univers ity of Ma la ya

A b stract:

It is a common phe nomeno n for cons truction projects to have ap plica tions fo r extensio n o f time .Ma ny problems are enco un tered in pra ctice in the a pp lica tion .1I1d prcpnrn uon o f extens ion oftime claims. A stud y wa s cond ucted to identify the main probl em s encountered in the a pp lica tionand assessmen t of extension o f tim e claim in selected construc tion projects ill Malnysia . Three (3)case stud ies have been used 10 Investt getc the exten sio n o f lime issues. Plndings from the s tudyrevealed that local con trac tors us ua lly fnil 10 comply wi th the con trac t p roced ur al req uiremen ts to!It1hl1lil IIl1wl)' llu llfiL'llliun uf llL·I,I)' 'Uld luwu dlrrlculty 111 l-!l..-' llIoI1HlI',,1I116 IJwl 1' onuucmom Iorextens ion of lime. The main problem faced by contract adminlstrntors is that contractors tend to"inflate" their extension of time entitlement with the intention to ma ximise their claims. Adherenceto the agreed procedure in prepa ring an d eval ua ting of delay cla ims an d the implementation of ase t of agreed s tandardised d elay ana lysis may help to minimi ze the frequency and impact of suchproblems,

Key words: cons truction cla ims, assessment, contractors, extension of titne, va litli ty

In troduc tion

In any cons truct ion contract, the contra cto rha s the legal obliga tion to complete a projectby the da te for com ple tion or wit h in the dalefor completion. However, delays alwaysdisrupt the performance of con trac to r'swork. A delay may be caused either by thecon trac tor or emp loyer, o r even ts for whichneither party is at fault (or commonly knownas neut ra l even ts) . Th e ge ne ra l p rinciplein law is that the con trac tor w ill no t beentitled to cla im for extension of time orloss and expense if the delaying even t iscaused .by his own fau lt. In th is rega rd ,Willia ms (2003) ca tego r ised delays int oe xcusab le / co m pensa ta b lc, excusab le /non-compensat able and non-excu sabl e /n ou- compcnsa tnb lc . Ge ne ra lly , th e

contracto r w ill only be excused and enti tledfor ex tensio n of time if the delay is caused bythe emp loye r or neu tral even ts. Excusabled elays tha t may a llow reco very of bo thtime and moncy arc normally delay causedby the employer suc h as delay in giv ingpossess ion o f s it e, delay in g iv inginst ru ct ions, draw ings, varia tio n, e tc. Incontras t, excusable delays that may allowso lely on ex tens ion of time ar e delay s notcaused by either party or neu tral even ts suchas strikes, force majeu re, inclement wea ther,etc . Most cons truc tion con trac ts speci ficallylist the excusable del ay for which ex tensionof time and, loss and expense call be g ranted.

Extension of Li me is a very importan tpr ovision in any construct ion contrac t.Th isprovision affects the exten t of con tracto r's

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liability to pay for liquidated damages ifthere is a delay to the completion of works. Ifthe provision is clea rly d rafted it will alsoprovide the contract administrator with thepower to extend the time for completion dueto an act of prevention by the employer. Forinstance, in the case of Ttiameso Design«Scil/. 1311ci. v. Kl/c1l i l/g Hotels Scil/ . B1Ici. (1993)3 MLJ 25, it was he ld that if the contractadministrator has no power to extend thedate fo r co mple tio n due to a n ac t ofprevention by the emp loyer, the time forcomple tion will be at large and the employerlos t h is righ t to en force the liquidateddamages provisions,

Cla ims by cont rac tors for ex tensio nof time are almost inev itable in anycons truc tion proj ect . Much effort has beenput in by con tractors, sub -contractors,con trac t administrntors, profess ionalconsu lta n ts an d employers in provingentitlement or assessing extension of timeon cons truction projects (Turner and Turner1999). For exam ple, wh en there is a de layto prog re ss of work in a cons truc tionproject, it mayor may not have an effect onthe project completio n date. According toAd rian (1988), where a de lay to p rog ressdoes no t a ffec t the cr it ica l pa th, thecompletion date of a project will not beaffected.

While the general p rinciple is that acon tractor sho uld be given more time tocomplete a project for delays on critical pa thwh ich are beyond the con tractor's control,there have been many probl ems encounteredin practice with regard to the applicationand pre para tion of ex tens io n of timeclaim by contractors and analysis of claimsand proof of e ntitlemen t by contractadministra tors (Pickavance 2000, Brambleand Callaha n 1992).

This pape r presen ts find ings of astudy aimed to id en tify common problemsencountered in the application o fex tensionof time by contracto rs and to assesscontractor 's claim by the contract admi­nis trator in co nstruction projec ts in theMalaysian cons truc tion ind us try. It does not

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cover the topi c of entitlemen t for loss and /or expense as a result of ex tension of timegra nted in a project.

Litera ture Revi ew

Mos t s tandard fnr rns of co ns truct ioncontrac ts require the contractor to providenotice for applicatio n of extension of time.The common problem encountered is wherea con tractor fails to se rve a notice of delayalthough the con trac t stip ulates that it is aco nd itio n p receden t to the co n trac tor'sentitlement to extension of time. The topic ofcondition pr eced ent is discussed at lengthby Pickavance (2000). In such instan ce, isthe contrac t administra tor still obliged toeva luate and/or grant an extension of timeto the contractor? Ifa con tract stipulates thatserving of no tice by the contractor is acondition precedent to extension of time, as tric t interpret ati on of such cla uses willmean that the contractor will lose his rightto extension of time sho uld he fail to serve adelay noti ce to the employe r.

Usually, co ns truc tio n co ntractsrequire the con tractor to no tify the employeror contract administra tor of delays whichare likely to affec t the completion da te assoon as th e de lays occur o r within areasonable time. The contractor is requiredto apply for an extension of time and prepa rethe relevant supporting documenta tion tobe submitted to the contract administratorfor evaluation. Whil e this ma y ap pear to bea straight-forward procedural requirement,there have been various problems identifiedas follow (Turner & Turner 1999,Pickavance2000):a) Whe ther a no tice of claim by th e

contractor is a no tice precedent toentitlement to exten ..sion of time;

b) The e ffec t of the co n t rac tadministrator's fail ure to grantex tension of time for e mployer'sdefault;

c) The effect of the contrac tor's failure toserve a proper notice of delay;

Applicatio1l nlld Assessl/lent of Extension ofThneClain:

A notice mus t be in writing;It must specify a cause of delay;The progress of the Works mus talready have been affec ted ; andIt need not take any special form ofwords p rov ided it is s u ff icien tlyp recise to put th e con trac tadminis trator on notice of the de lay.

d)

The co ntractor is genera lly required toprovid e cer tain relevan t de tails in his no ticeof cla im incl uding identif ying relevantevents giving rise to delays, the da te and timeof delay, the cause of delay and its duration,and the impact on progress of work (O'Brien,1976). Non-provision of such informationmay result in late granting of extension oftime or even rejecti on o f the contractor'sex tension of time claim. The contra cto r isrequired to identify each de laying event an dthe an ticipa ted effec t of eac h event on thecomple tion date rath er than to submit aglobal claim for de lays due to many events.If the contrac tor's reco rd keeping is poor, asin ma ny cases, he may not be ab le tos ubs tantiate ea ch delay but only ab le tosubmit a global claim. Dispute w ill mostoften arise since the emp loyer is inclined torejec t the con tra ctor's cla im ev en if theemployer recogni ses that the contractor hasa valid rea son for delay.

events. Because of the importance of tim elynotice by co ntracto r in allowing the contractadministratorsuffi cient time to mitigate anydelaying ev ent s, most s tandard form s o fcons truction contrac ts require the contractorto s ubmit a notice of delay with in areasonable time.

In LOlldoll Borougl:ofMertoll v. StOllleyHllgII Leacu Ltd (1985) 32 BLR51, Vine lott J.w as asked to consider wh at wo u ldco ns titute a "w ritten notice" wi thin themea ning of clause 23 of JCT form 1963. Whiietaking the view that the question of w hetherany particular document was or was no t a"w ritten notice" was clear ly a question offact, the court accep ted the arbi trator's viewthat :a)b)c)

The co mmo n problem in the cons tructionind us t ry is th a t con trac to rs d o n otsu fficien tly unders tand thc ir ob ligationsunder the no tice pro vision s. As a res ult ofthe contrac tor 's failure to adhere to specificnotice procedures there have been IlMllY

disputes arising from non -giving of notic eor late notification. A change in projectrequiremcnt m ay b e ca use d by thcemployer 's act s of prevention, for example,lat e possession of s ite or variatio nins tructions by em ploye r gi ving rise todelays. The contractor 's argument in such acase wo uld be that w here the delays arcca used by "ac ts o f p reven tio n" by theemp loyer, it wou ld be un fair to expec t thecontractor to raise a notification of de lay soas to safeguard the contractor's en titleme ntto e xtens io n o f ti me for Stich acts o fprevention arc beyond the contractor'scontrol (Robinson, et .al. 1996).The employersho uld no t be allowed to benefit from hisown "default". Insuch circumstances, evenif the contract administrator has not receiveda timely notice, he 111\.1St consider whetheran exc usable event has occurred.

TIle rationale for the contractor to raisea noti ce of delay is to allow thc employerand contract adminis trator to know of theevents that have affected or is likely to affcctthe con tracto r's progress of work. Even if thecontract ad minis trator has knowledge of thecircums tances giving rise to an en titlemen tto an e x tens io n of time, w it ho u t thecontractor's advice, he may be ignorant ofthe impact on the contracto r's progrcss ofwork. Timely notification of delays orpotential delays w ill allow sufficient timefor the contract adminis trator to find wa ysto m inimise or o verc ome any delaying

d) Non-agreement as to the cause andcffcct of delays;

e) Non-agreemen t on upda ted ma sterprogramlnc which forms the basis ofestablishing entitlement to extensiono f time; an d

Q Su fficiency of supporting informationprovided by contractor.

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Journal of Design and tIm Buill Enoironment

501ne contrac t administrators arcof th e view th a t submission o f a we lldocume nted ex tension of time claim is aco n d it ion precedent to th e co n trac tadministrator' s obligation to g ran t anex tension of time. If the contractor fails tosubmit rel evant det ail s to the co ntractadministra tor then the la tter is not oblige dto evaluate the contractor's claim or at thevery least delays in granting an extens ion oftime until the releva nt in forma tion has beensubmitted. Contractors often view this as adelaying tactic by the contract admini stratoror even accusing the con tract administratorof not ca rry ing ou t his impartial duty toev aluate for the contractor's entit lement toextension of time especially where delaysare ca used by the employer. This problem isaddressed by the Malaysian PAM 1998 formwhic h stip ula tes that even if the contractorfa ils to subm it relevant d et ail s, it is thearchitect's duty to form his own opinion andgrant a 'fair and reasonable' ex tens ion oftime to the contractor.

Comprehensive records to prove theentitlement toextension of time must supporta valid claim .Too of ten, contractorsare ableto show that so mething wen t w rong on aproject but unable to prove the time loss as aresult of a pa rticular problem main ly becausethere is a lack of records to identify the exac tcause of the problem (Powe ll-Smith & Sims,1989). Good contempora ry recor d keepingby the con tractorhelps avoid confu sion andass ist in reaching agreements by definingfacts, roles and responsibilities of the par ties.In practice, it is far too often in Malaysia thatcon trac tors tend to under-value theimportance of good record keeping. Poorquali ty pro ject docum en tation reduces thechance of getting an extension of time claimof being app ro ved by th e co n tra c tadministrator and increases the likelihoodofa d ispute (Collier, 2001). While contractorswho do not keep good site records may havesaved some administration cost, poor projectdo cumentation present s serious difficultiesin identifyin g causes of delays espec iallywhere the employer causes the delays. In

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such inst an ces, the con tractor's right toextens ion of time as well as los s and /orexpense is being compromised. Eve ntually,the contrac tor may end up s pe nd ing a lotmore expenses in de fending his rights andsubsta nt iating his cla ims.

Both the Ma laysian PAM 1998 andCIOB 2000 forms require the con trac tor togive a notice of delay within a reasonabletime of the even t giv ing rise to delay andto provide such details and particulars asare ne cessary to assi st the con trac tadministrator in making his decision. Whensubmitting an extension of time claim, thecontrac tor should identify de tails rega rdi ngthe event, inclu ding in fo rma tion on: thedelaying event, when the date the event tookplace, material circums tances giving rise tothe delay, the durat ion of delay, and itsimpac t on progress of wor k

While I'AM 1998 and CIDB 2000contain expressed provisions requiring thecontractor to subm it detailed particulars oftheir delay claims, the Malaysian PWO 203Aand !EM 1989 are silen t w ith rega rds to thisob ligat ion. This leaves room for disputeswhereby the contractor w ill argue tha t hehas no obligation to submit any details butthat the con tract adminis trator is under ad u ty to g ran t a 'fai r an d rea son ab le 'extension of time.

The contract adminis trator is on lyrequ ired to ascert ain w hether the causes tated by the contractor in the notice is arelevant event and whe ther as a result o f there leva nt event the completion of the worksis like ly to be delayed. While it appears tha tthe burd en o f p rov ing e n ti tl e men t toextension of time rests with the contractor,contrac to rs ha ve often argued that thecontract ad mi nis tra tor also ha s a duty togra n t a 'fair and reasonab le' ex tens iono f tim e notwithst and ing in suffici entinformation submitted by the contracto r inparti cul ar where de lays a re caused byemp loyer's default (Adrian, 1988).

Due to aforem entioned rea sons, it isanticipated that the problems encounteredin the a p p li cat io n and as se ssme n t of

extension of time claim may also cause delayto the completion of p ro ject. A s urveycond uc ted by Faridi and El-Say eg h (2005)shows that apa rt from prepara tio n a ndapp rova l of drawings, inadequate earlyplanning of the project a nd slowness of theowner's decision making process whichhav e been ranked high by the Contractorsand Consultants, lack uf com m unica tionand co-ord inat ion be twe en the pa rtiesinvo lved in cons truction, conflict betweenthe contractor and consultant, lack of datain es timating the activity duration andresources and inadequate progress reviewhave also been identified as causes of projectdelay.

Accord ing to Ng, e t a l, (2004), th eresults obtained by using the delay analysistechniques w ill d ep end on th e amount ofinformation, time and resourcesavailable forthe analysis. Therefore, contractor's properrecord keeping and tim ely appli cat ionare essential to ena ble the co ntrac tadministrator in providing the necessarylevel o f feed back o n th e ap p lic a tion ofex tens ion of time. It ha s been sug gested tha tin assessing the extens ion time claim 'themost imp or tant asp ect of the wo rk is to bringsome transparen cy int o the so mewha tnegl ected asp ect o f uncertaintiessurrou n d ing th e plan nin g p roces s,providing a better understa nding of theissues involv ed and, hopefully, a basis fornegotiati on and improved interdisciplinaryrela tion s ' (Ng, e t a l, 2004) .

M e thodology

According to Yin (1984), the type of researchmethodology to be ad opted by a researcherdepends on the type of research q uesti onposed, the extent of control a researcherhasove r actual behavioural ev ents and thedegree of focus on existing against historicaleven ts. The case study m ethod was se lec tedas it provides real information required tounderstand the underlying causes andeffects of the topi c un der study. Accord ingto Pa tto n (1987) , 'ca se s tud ies becomeparticularly useful w here one needs to

Applimfio llandAssessl1I f.'nt of Extension ofTime Claim

understand some particular problem orsituation in greatdepth, and where one canidenti fy cases rich in inform a tion' . Most ofthe research q ues ti ons arc "w ha t"(ex p lora tory) a nd " how" (ex p lana to ry)ques tions , Forinstance, whatarethe commonproblems enco un tered by contrac ting partiesin dealing with extensions of time issu eand, ho w co ntrac to rs and contrac tadmini s trators app ly and as sess theextension of time claim, respectively.

A case study will generate em pirica ldata through investigation on contemporaryphenomena w i th in its rea l- li fe co n tex t,ref er red to as " rea lity" (White 2000). As theintention of this research work is to examinethe current extensions of time issues inconstruction industry, case studies wou ldenable the research to look a t the wholesituation and observe the inter-relationshipof parameters during the claims process.

Accord in g to Yin (1984), in cases tud ies, triangulati on could be conductedby using multiple so urces of da ta. The needfor triangulation arises from the ethical needto co n firm th e va lidi ty of the researchproces s. Thus, thi s s tudy used multiplesources of evidence consisting of relevantcorrespondences, wo rk programm e, otherrelevantprojectdocuments, and structuredinterview s with releva nt pa rties for these lec ted projects. Such evidence wouldenable the researcher to sc rutinise andadd ress a broade r range of cur rentex tens io ns of time issu es. Sub sequentin terviews w ith relevant p roject perso nne lwere cond uc ted to valida te the case stud yfindings.

Tnl'geted Cnse St udies

Case studies are generalizable to theoreticalproposition a nd not to populations o runiverses. A case study does not represent a'sample', and the researchers' goa l is toexpand and generalize theories (analyticalge ne raliza tio n) and not to enume ratefrequencies (s ta tist ica l genera liza tion) (Yin1984). Three (3) case s tudies have beenselected for analysi s and eval uation .

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The subjects of case s tudies werecompleted construction projects in KualaLumpur utilising d ifferent standard form sof contract. The projec ts we re selected basedon the willingness of the contractors to shareinformation. A balanced representation wasthought to be ob ta ined by using threedifferent p rojects, each with a different formof contract. One project used the Malays ianInstitute of Architects (MIA or PAM) 1998form of con trac t, th e second used th eInstitution of Eng ineers Malaysia (lEM)1989form, and the third used the Public WorksDepa rtm ent (PWD) 203A form. In general,PAM 1998 form of con trac t is used forbuilding projects, !EM form is used forengineering projects, while PWD form isma in ly used fo r b u ilding as we ll asengineering projects.Therefore, the types ofconstructio n projects used for the cases tud ies cover the building and enginee ringprojects as Can be deduced from the detailedbackground of the case stud ies. To overcomethe obsolescence issue the se lected projectssho uld be beyond the year 1995.

All three case s tudies were based oninformati on ob tain ed from pro jectdoc uments including ex tracts of relevantrecords such (IS contract doc uments, noticeof delay, workprogramlllC, correspondenceand records relating to ex tension of timeissues, minutes of meeti ngs, progress reports,rainfall records and other da ta furn ished bythe relevant companies . The case s tudiesand ana lysis are presented to highlight boththe legal and technical as pec ts of cla imssubmitted by contractors, validity of thegrounds claimed , sufficiency of the methodsused in arriving at the number of d aysclaimed and the met hods which contractad minis tra to rs used in eva lua tingcontractors ' claims as recommended byEgglestone (1997) in the process ofapplyingand evaluating ex tension of time.

Case S tu dy N o.1

This case study was on the construction of 3blocks of 16-storey apartmen ts tha t used thePAM 1998form of con tract. The original date

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for completion as stip ulated in the contractwas 18110 Oc tob er 2002 . The Co n tra c torclaimed an extension of time on the groundsof late s tart, late issuance of instructions byEngineer, variation works and unsuitabilityof designed p iles.The Cont ractor submittedthe notice of delay on 19110 July 2001 for itemssummarised in Tabl e 1.The Con tractor hadprovided tes t rep orts, minutes of meetings,fax transm ittals, ins tructions and otherre le van t do cuments, suc h as cont rac tdocuments, original work programme andupdated work programme in the applicationfor an ex tension of time.

Case S tu d y No.2

This second case s tudy is on a sewerageproject that used the !EM 1989 for m ofcon tract. The Co ntrac to r's claims forex tens ion of time were mostl y related toinfrastructureworks.TIle date forcompletionas s tipulated in the contract was 20th May2000. The Contractor claims were based onhis enti tlement on the grounds of de lay ofwork caused by objections from adjacent landowners, objections from residents and thebus iness conu n u nity, variation works,inability to secure materials due to reasonsbeyond the contractor's controland poo r soilcond ition on site. The chrono logy of eventsis summarised in Table 2.

It is no ted that th e extendedcomplet ion date remained on 3"-1 January2002 a nd the la st extension of timeapplica tion was to be determined by theEngineer.This case s tudy focuses on eventslead ing up to delay on the las t exten dedcompletion date.The Contractor's claims aresummarised in Table 3. The Con tractorclaimed for an extension of time totall ing 92days (after taking into considera tion ofconcurre nt delays) from the last extendeddate of completion, i.e , 3'" January 2002 toS ilo April 2002.

The Co n tr ac to r had prov ideddocurnen ts and informa t ion in theapplication for extens ion of time incl uding:the relevant clauses from the conditions ofcontract, letters from consu ltants regarding

background and sy nops is of the relevanteve nts and the Engineer's Instructions ontemporary connection of existing force mainto newly laid mild steel pipe, constructionof rece iving pi t at pumping s ta tio n,reinstatement of damaged property duringpipe jacking works and removalof temporaryconnection.

Case S tudy No.3

The third case study is on the cons tructionof a lO-storey administration building. Thedate for completion was s tipulated to be 5"Aug nst 2000. The Contractor had claimedfo r an extension of time by reasons ofexceptionally inclement weather, variationworks, and finan cial cash flow problem as aresult of economic crisis in Asia and non­payment by the Public Wor ks Depar tment(PWD) on the "agreed" variation wo rks.

Prior to the application of ex tensionof time No. 2, the Con tractor had submittedan application for extension of time No.1 inJune 2000 on the grounds of force majeureha ze, (s uspens io n of works uponcn v iro n mc n ta l impa ct analysis) andexcep tionally inclement weather (from 6'"Ma y 199 7 to 31" March 2000) . In th eap plica tion for extension of time No .1, theContrac tor highligh ted that the tota l de laywas 11Y, mon ths b ut that he only appliedfor9 months extension o f time. An ex tensionof time of 9 months had been subsequentlygra n ted b y PWD th us ex te ndi ng th ecompletion da te from S'" Au gus t 2000 to 5'hMay 2001. The Con trac tor issued a notice ofdel ay and app lica tion for extension of timeno. 2 on 26'h April 2001 without supplyingan y relevant supporting d ocuments. Up onrequest from PWD, the Contractor submitteda brief repor t on application of extensio n oftime no. 2 on IS" May 2001. Contractor 'scla im for ex te ns ion o f tim e no . 2 issummarized in Table 4. Based on Table 4,the Contractor claimed tha t the project couldbe de layed up to a total of 24 'Iz months. Byimplementing various mitigating measures,the Con trac to r applied for a total of 16

Application andAssl'ssmeut of EXII!IJsiOll afTime Cla;m

mon ths of extens ion of time, bringing thecompleti on da te from 5'h May 2001 to 5'hSep tember 2002.

In the applica tion for the extension oftime th e Co n trac tor h ad providedinforma tion based on the project methodsta tement, original as planned programme,as-built programme, rainfall records (dailyra in fall records from 1998 to 2001 fromMeteorological Department), haze records,deta ils o f Gov ernmen t instruction to ceaseworks during periods of ha ze, relevantcorrespo nde nce and minutes of meetin gs,corresp ondence relating to delays in supplyand sources of alternative materials, copiesof instructions issu ed, progress reports andrelevant drawings.

A n alys is and Dis cussions

The follow ing discussion of the case s tud ieswill focus on the following aspects:a) Admissibility of contractor's claim­

to obs e rve whether th e re is anycon tractual provisions enti tlin g thecontractor to claim

b) Valid ity of the grounds claimed bycontractor - to observe whet her thegrounds for claim are justifiable

c) Sufficiency of contractor's claim - toobserve whethe r su bs tan tia tio nsubmitted by contrac tor is eno ugh toprove the contracto r's entitlement

d) Subs ta n tia li ty of contractadmini strator 's assessmen t - toob serve whether co ntrac tadministrator is able to provide validreasons for his decision

Admissibility ofcontrnctor's claim

It is the Contrac tor 's obliga tion to notify theCon tract Administrator of any delay eventsas stipulated in the cond itions of contrac t(see Tabl e 5). The central issue is whetherthe Con trac tor 's late not ificat ion will a ffecthis enti tlement to extens ion of time. One ofthe Con tractor' s a rgumen ts is tha t thenotifi cation requirement is no t so s tringentwhere the delay is caused by the Employer'S

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[ournal of Designand 11/0 Buill Environment

default or even caused by neut ral events . Itis argued that the Con tractor should beentitled to extension of time based on theequitable p rinciple that an Employe r shouldn ot benefit from hi s own d efault inpreventing the Contrac tor from meetin g theprojec t's de adli ne. The wo rs t occasion isfound in Case S tudy No .3 whe re th eContractor made an application for extensionof time no.2on 261h Apr il 2001, 10 days beforethe imposition of liqu idated damages on theCon tractor by the Employer. Nevertheless,in all three (3) case s tud ies, the Architect!Engineer / Su pe rin tenden t Officer (5.0.)proceeded to evaluate the Contractors'submissions ,

Validity of thegrounds claimed by contractor

In Case Study No .1, the Contractor claimedthat the la te s tart of the p roject was due tothe requ est to stud y and evalua te proposalsby the Architect to use a proprietary pre-castsys tem in lieu of conve ntional constructionmethod to save cost and time. It is legitimateto rely on Cla use 23.7(v) of PAM 1998provided that th ere is an Archit ect' sinstruction and it falls specifically under anyone of th e Clause 23 .7(v) whi ch s ta tes'compliancewitllArchitect's instructions underClauses 1.2, 11.2, 21.1 01" 21.4' . Many of theclaims in Case Study No.1 is based on Clause23.7(v i) for d elay due to la te recei p t ofins truction from the Enginee r. How ever,Clause 23.7(vi) st ip u la tes a gove rningprocedure that must be complied with beforereli ance can be made on this clause. Itreq ui re s that th ere must be a specif icap p lication made by the Contrac tor beforehe can succeed in claiming. For example, theContrac tor contended that he had app liedfor an instruction on 23'" No vember 2000and has taken this dat e as the da te fromwhich the delay began.

Th e issue then is w h e th e r theContractor's letter dated 23'· November 2000can be considered as "a specific application"required by Clause 23.7(vi).The Contractor'slett er dat ed 23'· No ve mber 2000 di d no tappear to have spec ifica lly applied for an

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instruction from the Engineer. Such leiterappears to be as mere notification. However,the Contractor's letter dated 27" December2000, which clea rly expressed a specificapplication and can be considered to be ap roper request in co mpliance with th erequirement of Clause 23.7(v i). Though theContractor has the en title me nt to claim,defence is available to the Employe r onprocedural gro unds to challenge theContractor's entitlement to extension of time.

Another issue in Case Study No.1 isthe Contractor's claim that the.designe d pilefound ations for Block C we re inad equateresulting in nume rous piles being broken orunset. Due to this circumstance, the Engineerhad ins tru cted for ad d it ional piles to bedriven which amou nted to a variation to thecon tract. If this was the case , the Contractorwould be entitled to claim for extension oftime. However , there was a d ispu te on thisissue when the Engineer contend ed that itwas not a variation, as the broken piles orunset piles were caused by the Contractor'sfailure to exercise due care and to adop tappropriate driving techniques suitable forthe type of soil encountered .

In Case Stud y No.2, objections fromlot owners, residen ts and bu sinesscommunity had prevented the Contractorfrom commencing pipe jacking wo rks on theda te s tated in the work progra mme. Thi shindrance is considered to be beyond theContractor's control. Based on Clause 38(b)(i)and Cla use 43(g) of the !EM 1989 form ofcontract , th e g ro u n d upon which theContrac tor based their claim is va lid. TheContrac tor is also entitled for ex tension oftime under Clause 43(e) of lEM 1989 form ofcontract for varia tion works, Delay -wascaused in the process of obt aining theappropriate coupling and T-joint size dueto the uncertainty of the d iameter of the forcemain. The basis of this claim wa s that timewas requir ed to source an d ob tai n thecoupling and T-joint from any supplier. Thisdelay event would have given the Contractorthe entitlement for an extension of time underClause 43G) ofI EM 1989 form of contrac t for

inability to secure materials as are essentialto the proper carrying out of the works d ueto reason beyond the contractor's controland which he cou ld not reasonably haveforeseen at tender stage . How ever , Clause47(j) of !EM was dele ted in the sig ned copyof the cond itions of contract and there is noother prov ision in the contract, which allowsthe Engineer to gran t extension of tim eca used by such event. As s uch, time forcompletion will be a t large.

In Case Study No.3, the Co ntractorhad claimed for ex tens ion of time on theground of Cla use 43(b) of PWD 203A formof contract: " by reosolls of OilY exccptionalb]inclement uieother", This is a relevant eve ntfor w h ich the Con tractor is en titled toextension of time ifhe is able to demons tratethat th is has caused d e lay to proj ectcompletion. The Contractor had also claimedfor an extension of time on the ground ofCla use 43(e}of PWD 203A s tandard form ofcondi tions of contract: " by reasoll of 5.0.'5illslr llctiolls iss lied under cialise 5 hereo],provided lltal sucl, illslmc liolls or" 1101isslleddue 10 OilY defalllt or breact, of contract by tileContmctorornllYsub-coiltractor nominated oroihertoise", In this instan ce, the Co n trac torreferred to theS.Oo's instruction for variationwork found in Clause 5(a}(i} of PWD 203Astandard form of contract.This is a relevantevent for which the Co n tractor is entitled toextens ion of time if he is ab le to de mo ns trateth at thi s h as ca used d e lay to proj cctcompletion.

On the o the r hand, there is no validgro und fo r the co ntrac tor to clai m forex tension of time as a result o f financial cashflow problem or non-p a y ment by theEmployer. Two basic remedies are availableto the contractor - (1) determination of thecon tract, and (2) referr ing the dispute toarbitration. Unlike o ther standard forms ofcon tract (PAM 1998 and !EM 1989), there isno contrac tua l right in FWD 203A form for aContractor to determinate the contract wherethere is a br each of contrac t by the Empl oyer .However, th is shall not stop the Co ntrac torfrom clairning for damages under C01111110n

ApplicatiolJ andAssessment of Extension of Time Clobn

law and for the Con tractor to determ inatethe contract if the breach is so significant soas to go to the roo t of the contrac t. Should thecontractor decides to go for arbit ration ,Clause 54 of PWD 203A form of contrac ts tates that the Contractor must first invokeCla use 54 by referring a ny d ispute a risi ngfrom the contract to the S.O. for a decision.

If the S.O. fail s to give a dec isionwi thin 45 days, then the Contractor ma yproceed to refer the dispute to arb itration.However, the Contractor had done ne itherof the above. Cash flow problem caused byfallen of Malaysian Ringgit va lue and non­paym en t o f agreed variat ion works are notvalid grounds for claiming extension of time.There is therefore no contractual ground forthe Con tractor to claim for extension o f timefor cash flow problem.

Sufficiel/cy of contractor 's claim

In Case Study No.1, if the Contractor is toargue that the late star t of the project hadcaused delay, by rel ying on Clause 23.7(v )of PAM 1998 form of cont rac t, there mu stfirst be an instruction issued by the Architect.For the ins truc tion to be va lid and effec tive,it mus tbe issued in writing orconfirmed bythe Contractor in writing pursuant to Clause2.5. An examina tion of the Contractor'ssupporting documents showed that therewas no correspondence from the Architectreq ues ting the Con trac tor to eva lua teproposa ls to use a proprietary sys tem.ThereInay be verbal communication exchangedins tead. Such verbal communication mayonly be mere proposal and ma y not amo un tto a valid instruction under the con tract. Intile absence of any written doc ument relatingto the issu e, the case would be one' s wordagainst the other, where the discovery ofev idence relating to the s ta tementcould onlybe made by way o f exami nation and cross­examina tion o f w itnesses.

It is do ubtful whethe r the late receip tof not ice as alleged by th e Co ntrac tor reallya ffected th e p rogress of the works. Eventhough the Contrac tor had provided relevantsupporting information, he did no t submit

23

jOllfl/nl of Design and IIw Built Environment

an y justifi cati on for additional tim e causedby th is even t to show the cause and effect ofthis delay even t. However, for delay eventnoA & 5, th e Con trac to r had s ubm itte drelevant information including minutes ofsite meeting, work programme, site recordsand geo-technical engineer's report. Basedon these, the informat ion submitted wassufficient to suppor t the claim for delay eventno . 4 & 5.

fn Case Study No.2, it is found thatthe Con tractor's supporting documents d idnot provide sufficient informati on as thedetails and calculation of the number ofdelay days claimed are not known. TheContractor may find it di fficult to carry out aproper delay analysis based on Criti cal PathMethod to demonstra te the impact that eachdelay eve n t has on the completion d ate.However the inability to dem on strate theseimpacts does not mean tha t the Co ntractoris not ent itled for any extens ion of time dueto events due to the Emp loyer's defaul t.OnlyPAM 1998 form of co n tract requires thecontractor to submi t detai ls and particularsof expec ted effect of delay, the estima tedleng th o f d elay a nd ex tensi on o f timerequired . 1EM 1989 and PWD203A forms ofcontract do not contain express provisionrequi ring the con tractor to submit suchparticulars.

As for Case Stud y No .3, the wea the rrecords from the Meteorological Departmentwere used as comparison aga inst averageproject weather records. While this may showthat the weather has been unusua l, it mayprove no thing in respect of delay to theprogress of the works. For the Contractor tosucceed in this claim, the Contractor mustbe able to demonstra te that the weather on apa rticu lar date has be en excep tiona llyinclementcompared to the average weathercondition for, say the past 10 yea rs, and tha tthis has an effect of disrupting the work onthat day. The information submitted by theContractor had failed to demon strate this.Based on Con t rac to r ' s orig in al w orkprogramme, earthwork and piling w ereconsidered critical activities to the project's

24

completion date.The increase in earthwo rksis inevitable due to the change in earthworkprofi le as directed by the Emplo yer.Similarly, as a result of the revision in theplatform level, the piling lay out and designneeded to be rev ised. T he in for mat ionsubrnitted to supportclaims on the increasedearthw ork and piling qu an titi es w eresufficient,and they are considered variationunder Clause 24(b) of PWD 203A form ofcontract.

SnbstantinlitsjofContrac t Administrator'sAsscssJltclttIn Case Study No .1, the Architect gran tedno extens ion of time for the project's late start.It was decid ed that even if the Contractorwa s able to prove tha t a va lid instructionhad been issued, the claim d id not fan withinthe ambit of the speci fic events referred tounder Clause 23.7(v) of PAM 1998. As forthe late ins truction , the app roach adoptedwas considered inapp ropria te because it d idnot clearl y demonstrate how the late receiptof instruction affec ted the act ua l progress ofthe works and subsequently affected thecompletion date.There was no justificationto granting an extension of time since theworks we re in fact no t d elayed . Havingreviewed all the facts on the va ria tion claimsunder th e delay even t n o.3 and 4, theArchitect granted a totalextension of time of86 days for the disruption caused to progressof wo rk.

The m ain issue surro und ing theun suitability of designed p iles re lates to atechnical matter that needs to be determinediniti ally be fore any con tractual liab ility canbe identified. The Con tracto r claimed thatthe designed pile founda tions for Block Cwere inadequate result ing in numerous pilesbeing broken or unset. The Engineer allegedthat the Con trac tor d id not practi se p roperpili ng methods and th a t they failed toperform and comple te the w orks asreason ably ex pec ted by a n ex periencedcontractor . The Engineer noted that the SiteAg ent and Gen era l Manager lacke dex pe rience and engineerin g knowledge

pertaining to p iling wo rks which resultedin lack ofcontrolofwork on site.He therefore,recommended the Con tractor's claim fordelay event no.5 as not valid.Consequently,the Architect concur red wi th the Engineer'sexplanations and granted no extensio n oftime to the Con trac tor for this event.

The vali di ty of a par ty 's technicalargumen t canno t be determined until allevidence and tes timony from both partieshave been ana lysed and where appropriate,expe rt op inion soug h t. The piling work'sdurat ion for Blo ck C was prolongedapproximately 3 months (double the periodoriginally planned ). In deriving to wh o isliable for such delay, the facts need to beexa mi ned close ly . The on us is on theContractor to prove his case to secure theentit lement to an ex tens ion of time. Hav ingrev ie wed all the de lay ing e ve n ts, th eArchitec t proceede d to eva luate the masterprogra m me, w hi c h s ho w ed tha t th eCont rac tor inten ded to execu te the3 blocksalmos t conc urren tly . It appeared that 3groups of resources were allocated tocons tr uct the 3 blocks and there was nod irec t dependency or sha red resourcesbe tween the activi ties in the 3 blocks. Basedon Contractor's up -dated wo rk programme,the Architect carried ou t a delay analysis.He had to co ns id er. concur re n t dela ys,cha nge in cri tica l path, float a nd ot he rrelevant issu es. Acco rdi ng ly, the Architectgranted the Contractor 30 days extension oftime having reviewed the evidence submittedby bo th th e Co n tracto r and th e p rojectEngineer.

The Engineer in Case Study No.2 didnot provide any rationale for his decisionon how and why a total of72 day s extensionsof time had been granted to the Contractor.The Engi neer issued his extension of timecertifica te on 19'" Au gus t 2002 based on theContractor 's notificati on on 5'" Ap ril 2002.Tak ing into accoun t that the Co n tract'sExtended Da te for Completion was on 3'·January 2002, prompt eval ua tion of anextension of time claim was critical to theproject. It can be ar gued that the Engi nee r

Applicatioll (Iud AssesslI1ellt of Extension a/Time Ctabn

may not have met his contractual obliga tions tipulated by Clause 43 of the !EM 1989 formof con tract which provides tha t:...ifill theopinion of lite Engineer,thecompletionof the Works is likely 10 be delayed or has beel/delayed beyolld ihe Dafe for Completion staledill the Appendix 0 /' beyolld allY extended Dalefor Completion .. .the Engineer shall as SOOIl ashe is able to estimate IIIe lenglh of the delaybeyolld thedale01' limeaforesaid makeill1Vritillga fail' alld reasonable ex lells ioll of time forcompte!ion of the Works, ...

Most s ta nd a rd forms of co n trac treq uire the co n trac t ad miriis trntor tode tennine e xtension of time wi thin areasonable time. Time is crucial especiallyfor variation w ork so that the Co ntrac torcould have sufficie nt time to reprogram thew ork. In the Singaporean cas e o f Linn 50011

Construction Pie Lid v Gllall Qiall Realty PteLid (2000) 1 SLR 495, it had been decidedthat substantial de lay in issuing ex tensionof time by contract ad ministra tor without anyex p la na tio n w ould render th e de la yce r ti ficate in valid. It is the Eng inee r'sobliga tion to gra n t a fair and reasonableex tensi on of time as soon as it is possible forhim to estimate the impact of de lay to projectcompletion.

The 5.0. in Case Study No.3 took afew months to assess Contractor's ex tensionof time claim no.2. As for delay event no.1,the Con tractor had failed to demonstrate thatthe wea ther condition on a particular dayhad been excep tionally inclement, that workwas disrupted. The Contrac tor's claim thenwas rejected.

Fo r the increa se in ea rthworkquantities and revised piling design, the 5.0.co ncurred w ith the p rod uctiv ity ratea na lysis adopted b y th e Con trac tor inarriving at an exten sion of 20 months to thecomple tion date. Taking into cons iderationconcu rren t delays, the 5.0. awarded 16months of extension o f time for eventno.2 asclaimed by th e Contrac tor . Fro m theinfo rmation submi tted, the Co ntractor d idnot demonst rate how man y days of delay

25

Journal of Design aud timBuill Enulronment

ha d been caused by the additional p ipelaying work u nd cr delay even t no.4 asinst ru cted by the 5.0. At the time the casestudy was written, the Contractor has yet todemonstra te the delay days caused by the5.0.'s instruct ion. The 5.0. req uested theContractor to resubmit his claim once he wasab le to demonstra te the delay when theexternal work wa s completed.

T he Contractor submitted anextension of time claim no.3 for delay eventno .4 for a total of 8 months. However, the5.0. deci ded that there was also culpabledelay by the Co ntractor and gran ted anextension of time of only 6 mon ths. TheContractor claimed that cash flow problemdue to the unfo reseen economic downturna nd non-paymen t by th e Em p loyer onagreed varia tion works had con tributed tothe delay in the project. The Co nt ractorargued that these problems had ca usedinabi lity to expedite works by employ ingappropriate resources such as labour , plantor eq uipme nt. The risk of ma naging thesereso urces generally rest s up on theContrac to r and d el a y caused by poormanagemen t s h o u ld be borne by theContractor. Th erefore, the ground for thi sclaim is unfounded. In any event there areother remedies that the Cont ractor maypu rsue for breach ofcontrac tby the Emp loyerwhe re the Employer failed to pay for workdone.

Conclusions

The case s tudy approach seemed to haveworked in exploring the hist ory of eventsand issues that are pertinen t in discussingthe obligations and responsibiliti es ofparties invol ved and the sequence of eventsfor a particular incident of claim on anextension of time.The case studies indicatedtha t contractors often fail to comply w ith thecontract's procedural requirement to submi ttimely notifica tion of delay. Notices of delayare submitted late, of ten, just before the dateof completion when the employer is abou t toim p ose li qu id a te d damages on to th econtractor. Contractors seldom keep proper

26

records on delay issues . This is one majoraspec t o f co ntrac t ma nagemen t thatco ntractors need to urg ently address .Without proper record and documentationthat is vir tually no th ing that can used assupporting evidence. As a resu lt, they facediffi cult y in de monstra ting the cause andeffect of the de layi ng event and this grave lyaffect theirentitlement forex tension of time.Th ere is ambiguity and a lack of records orsupporting facts as to when events occurred,how and who caused the delay and th eimpact they have on the project's completiondate. Often, a contractor's ex tension of timecla ims consi st only of the s ta te men t ofoccurrence of delaying ev ents and theircauses, and that these are submitted as oneglobaldelay claim .111ey also failed to informcontract administrator on the changes onworks programme and their impact on theproject's crit ical path. Meanwhile, updatedworks programmes are usually submittedon ly when the contractors wi sh to cla im forex tension of time. Even then, some of theworks programmes do not ind icat eimportant facts such as the p roject 's cri ticalpath to enable contract administrator toeasyassessment of time impact on the project.

Th e main problem encoun tered bycontract adm inistrators is that contractorstend to "infla te" the ir cla ims even thou ghthe y are una bl e to provide p roperjustification for them, As a result, contractadministrators need to spend a great deal oftime to evaluate and establish reasonableand acceptabl e length of time to be gran tedto the contrac tor. It is observed that the re isof ten de lay by the con trac t administra torsin processing and evaluating contractors'd ela y claims. Suc h d elays may ha v eprevented contractors from taking necessarymitigating action (ifany) to reduce the impa ctof project delay. Contract administra torsappear to have a nega tive and defe nsiveattitude towards contractor's de lay claimsand seldom provide any rationale for theirdecisions on how and why a certain numberof days extension of time ha ve been gran tedto the contractors.

Suggestions on m inimising problemse nc o un te red in the app li ca tio n andprepa ra tion of extension of tim e claim bycontractor and analysis and justification ofclaims entitlement by contractadministra tor,includ e: adherence to the agreed p ro cedurefor the p repara tion and e va lua tion of d elayclaims, implementation of a se t of agreeds tandard ised delay an alysis met h odology ,and p ropel' documentation of p roject recordsto be used lat er for the purposes of cla im sand overcoming disputes by both pa r ties.Pro m p tness o f process ing a nd fin ali s ingcla im s an d documen tatio ns o f proj ectrecords fur claims pur poses are utmostim por tant issu es in relat io n to claims .Perhaps , an in cre ase d sense o fpro fessi o nali s m in co ns truc tion co uldovercome some of the problems rel at ed toclaims and extension of time.

It is reco mmended that o ther researchm et h o d olo g ies s u c h as q u es ti o nna iresurvey s and tr iang ula tion me thod s be usedin future research to provide more insightsand p ossib le remedies into the problemse nco un te re d in the app li ca tion andaSSeSSITICnt of extension of time claims.

References

Ad rian, ] . J. (1988). Cons truction Claims - AQuautitative Approach, Pren tice-Hall , UnitedStates.

Bramble, B. B. a nd Ca llaha n, M. T. (1992).COllS tYll ctioll DelnyClnim, 2".1 Ed ition, John Wiley& Sons Iuc., New York.

CIOB 200 0 S tan d ard Fo rm o f Contrac t.Pu bli sh ed by Co ns truc tio n Indu s tryDeve lopment Board, Malaysia.

Collier, K. (2001). Cons truc tion COll fmc/s, 3"Edition. Prentice-Hall, Inc. United States.

Eggleston, B. (1 997). Liquid ated Dama ges andExtensions of Time in Construction Con tracts,2"" Edition, Blackwell Science Ltd., London.

Far idi , A,S. and El-Sayegh, S,M. (2005).AsseSSlII t' Ilt of tile Cnusrs of Delays ill tti c llAECOlJs trllctioll lndust rs}, Proce ed ings of 2005Internation al Conference of Cons truction &Real Estate Manage ment, December 12lh

- 131h,

2005, Penang, Malaysia, Vol.!, 146-150,

Application and Assessment ofExtensionOfTime Claim

IEM 1989 Standard Form of Contract. Publishedby The Institution of Engineers, Malays ia.

Liau Soon Cons truction Pte Ltd v G unn QianReally Pte Ltd (2000) 1 Singapore Law Reports495.

Londo n Borough of Merton v. Stanley HughLeach Ltd (1985).32 Build ing Law Reports 51.

Ng , S.T., Sk itmor e, M., Deng , M.Z.M. andNadeem, A. (2004). lmprouing existing' delayanalysis technique» for tlu: ('s falJlislulJent of delayliabilitie«, Construction Innovation, 2004, VolA,Issue 1, 3-17.

O' Brien , J. ). (1976). Cons tru c tio n Delay ­Responsibilit ies, Risks and Litigation . CahnersBooks International , Inc. Boston.

PAM 1998 Standard Fo rm o f Contrac t.Published by Malaysian Institute of Archi tects,Malaysia.

Pa tla n, M. Q. (1987). How /0 LIse Qllalita/iveMethods ill Euaiuetion,Sage Publications, London.

Pickavance, K. (2000). Delay and Disruption illConst ructi on Contmc ts, LLP Refe rencePublish ing, London .

Powell-Smith y . and Sims, J. (1989). Bl/ildillgContract Claims. BSP Profes si onal Boo ks,London.

PWD 203A Stand a rd Form of Con t rac t.Publi sh ed by Public Work s Depar tment,Malaysia.

Robinson, N. M., Lavers A. P., Tan, G. K. H. andChan, R. (1996). Construction Law ill Singaporeand Malaysia, 2.....1 Edition. Butterwor th Asia,Singapore.

Thamesa Designs Sdn. Bhd. v. Kuching HotelsSdn. Bhd . (1993).3 Malayan Law ]ournaI 25.

Turner, D. F. and Turne r, A. (1999). Building.Contract Claims and Disp utes, 2nJ Ed it io n,Addison Wes ley Longma n Limited, England.

White, B.(2000). Dlssertation Skills, Co ntinuum,Lond on and New York.

Williams, T. (2003). Assessing extellsion of limedelays 0 11 ",ajor projects. In ter national Journal ofProject Managemen t, Vol.!5, No.3, 181-186,

Yin, R. K. (1984). Case Stl/dy Research - Designand MetllO'/' Sage Publica tions, London .

27

icumot of Dt's(~11 nlld thn Built E,wirolllll{'lIf

Table 1: G ro unds for Extensio n of Tim e for Case Stu dy No.1

No. Description of Evenl Pursuant to Clause Number of(PAM 1998) D ays Cl aimed

1. Late start of project . 23.7 (v) 30

2. Late ins truction on u nse t p iles. 23.7 (vi) 37

3. Late instruction on short piles 23.7 (vi) & 23.7 (v) 41 + 50

&Variation instruction on short piles

4. Relocation of mock 23.7 (v). (vi), (x) 48

5. CUnsui tabi li ty of design ed piles. 23.7 (v), (v i), (x) 74

Tabl e 2: Ch ronology of Events for Case Study No.2

No.1 Dat e Details

1. 24'h Oct 2001 Notifica tion fro m Engineer tha t it is unlikely that theextended completion date no. 1 of 4'" November 2001 can beachieved.

2. 25'" Oct 2001 Contractorserved notice of delay and claim forex tensionof time of 60 da ys.

3. 9'" Nov 2001 Contractor served no tice and cla im for 10 days ex tens ionoftime.

4. 5'" Ap ril 2002 Con tractor applied for extensio n of tim e and requestingco mpletion date to be extended to 5'"April 2002.

5. 22"· April 2002 Engineer gran ted extension of time of 60 days and compla teda te was extended to 3'" January 2002 as per Co ntractor 'sap plicat ion dated 25'" Oc tobe r 2001.

6. 23'" Ap ril 2002 Engineer issued Cert ifica te of No n-Completion on 4th Jan2002.

7. 12'h May 2002 Co ntrac tor reitera ted that the Engineer had yet to evalua tetheir applica tion for extension of tim e s ubmitted on5'h April 2002.

8. 31" Ju ly 2002 Contractor requested for s ta tus upda te of the extension oftime applications dated 5'" Ap ril 2002 and their le tter dated12" May 2002.

9. 1" Augus t 2002 Engineerconfirmed that assess ment of ex tens ion of tirne isin progress.

10. 5'" August 2002 Engineer issued Cer tifica te of Practical Comp letion.

28

Application auf!Ass{'sS11Il'II l ofExtension of Time Claim

Table 3: Grou nds for Extensi on of Time for Case Study No. 2

No. Description of Even t Pursuant to Number of DaysClause (IEM 1989) Claimed

1. Objection of works by third parties. 43 (g) 34

2. Refusal by lo t owner. 43 (e) 25

3. Uncertainty of diameter of force main. 43 (j) 8

4. Discovery of exis ting pipeline . 43 (e) 7

5. Poor soil condition. 43 (e) 18

6. Variation work. 43 (e) 10

Table 4: Grounds for Extens ion of Time for Case Study No .3

No. Description of Eve nt Pursuant to N umber ofClau se(I'WD 203A) Months Clai me d

1. Exception ally inclemen t wea ther. 43 (b) 4.52. Increase in earthw ork quan tities. 43 (e) 123. Revised pil ing design. 43(e) 84. Add itio na l wa ter pipe laying. 43 (e) Disru p tion due5. Fina nci al cash flow problem. 43 (j) to resou rce

re-allocationAffect overa llwo rk progress

Table 5 : No tice of Delay Claus e

Key Issues PAM 1998 PWD203A !EM 1989

When to Clause 23.1 Clause 43 Clause 43serve a Ifand toncu it becomes Llpoll it becomillg Upon it becomillgNotice of reasollabtyapparmt rt>flsOIwbly apparel' l rrosollably apparent tlmtDelay? that the progress of the thn! the progress of the the progress of the Works

Works is beillg or likely Works is delayed, the is ddayed, tlu:to bedelaued beyolld COlltmctor shall COlltmetal' shallforthwiththe Datefor Cotnpletiou forthwith givewritten givewritten noticeoftheContractorshall noticeof filecauses of thecallsesof delay toforthwith of tue delayto the 5.0... fileEngineer."OCCllrrellce of SIfCIteveJlt1I0tify theArchitect illwritillg idelllifyi llg thereleoant events C(lusil1gthedelay,.. .

29