Extension of time claims
Jeffrey Badman, associate director, Hill International, gives his views on the best way to navigate drafting an extension of time claim.
In my experience, extension of time claims are unsuccessful because the contractor fails to adequately demonstrate its case through its submission of detailed particulars.
When drafting an extension of time claim, in my view, there are eight essential elements that must be addressed:
Identify the event: the circumstance which gives rise to change causing delay.
Liability for the event
Once an event has been identified the next step is to determine liability for the event.
If responsibility rests with the employer or it is a neutral event, such as force majeure or exceptionally adverse climatic conditions, the contractor may be entitled to an extension of time. However, this is dependent upon the terms and conditions of the particular contract. In circumstances where the contractor is responsible for the event then the consequences remain with the contractor.
Typically, construction contracts contain provisions entitling the contractor to an extension of time on the occurrence of a particular event provided the progress of the works or time for completion is delayed as a consequence.
For example FIDIC 1987 provides for an entitlement for extension of time in the event of: late drawings (Clause 6.4); adverse physical obstructions or conditions (Clause 12.2); discovery of fossils or antiquities (Clause 27.1); additional tests not provided for (Clause 36.5) suspension of the works (Clause 40.2); failure to give possession of site (Clause 42.2); additional or extra work (Clause 44.1(a)); exceptionally adverse climatic conditions (Clause 44.1(c)), any delay, impediment or prevention by the employer (Clause 44.1(d)); any special circumstances, other than through the default of the contractor (Clause 44.1(e)); and, contractor's suspension of the works (Clause 69.4).
Generally within an extension of time clause, the contractor will be obligated to submit notice(s) and detailed particulars within a specified time frame.
For example, Clause 44.2 of FIDIC87 provides: "Provided that the engineer is not bound to make any determination unless the contractor has (a) within 28 days after such an event has first arisen, notified the engineer with a copy to the employer, and (b) within 28 days, or such other reasonable time as may be agreed by the engineer, after such notification submitted to the engineer detailed particulars of any extension of time to which he may consider himself entitled in order that such submission may be investigated at the time."
Occasionally the submission of notice and/or detailed particulars will be expressed to be a condition precedent. The contractor's failure to comply waives its entitlement to claim an extension of time and owner's liability ceases. For this reason it is important to take cognisance and comply with the notice and detailed particular provisions expressed in the contract. Familiarity with the contract from the start of the project at all levels is therefore critical.
In addition, further submissions may be required for particular events, for instance: Clause 6.3 of FIDIC 87 (disruption of progress) requires the contractor to ".... give notice to the engineer, with a copy to the employer, whenever planning or execution of the works is likely to be delayed or disrupted unless any further drawing or instruction is issued by the engineer within a reasonable time. The notice shall include details of the drawing or instruction required and of why and by when it is required and of any delay or disruption likely to be suffered if it is late."
Cause and effect
A common mistake made by many contractors when attempting to demonstrate the cause and effect of an event is that they merely list in chronological order the pertinent exchanges of correspondence between the parties. From my experience this is usually insufficient to satisfy the burden of proof. To demonstrate cause and effect, a story should be prepared based on the facts describing the effect(s) of the event upon the works. This should include details of the planned works affected, referring to the planned sequence, durations, and methodology; the status of the works in relation to that planned at the time of the event; and, description of the changes to that plan as a consequence of the event.
Conduct a delay analysis to demonstrate the effect of the event on the contractor's programme.
There are a number of internationally recognised delay analysis methods. Ultimately, the choice of delay analysis methodology will be dependent upon such matters as level of records available; the robustness of the baseline programme and any updates; time available; degree of accuracy; and, level of proof required.
Statement of claim
Every extension of time claim must contain a succinct statement of what the contractor is claiming.
Extract and provide documentary evidence (letters, method statements, instructions, progress reports and photos, minutes of meetings, programmes and schedules), statements of fact and expert witness statements (if required) in support of the assertions made within the claim submission.
Adopting these eight elements as a check list will give a good starting point for drafting any extension of time claim, in spite of each construction project being unique.