Most construction contracts will suffer some form of delay during its lifecycle. In all Joint Contracts Tribunal (JCT) form of contracts, a delay event is called a “Relevant Event” and the extension of time is defined as an “Adjustment of the Completion Date”.
Whether during the design, the manufacture, the installation or even the commissioning stage on site, it’s very likely that the Contractor will need to apply for an extension of time to amend the original completion date.
What is an Extension of Time?
All construction contracts allow the programmed duration of the works to be extended in instances where there is a delay that is not the Contractor’s responsibility. This adjustment is described as an extension of time and sometimes referred to as an EOT, albeit under JCT Contracts it is actually known as “Adjusting the Completion Date”.
In effect, an Extension of Time, if approved, is an additional period (whether in days or weeks) that is added to the duration of the project programme to prolong the works and defer the completion date.
For what events can I extend time?
Under JCT Contracts, “Relevant Events” are Events for which time can be extended. The JCT categorises different types of events under different headers as there are many issues that can occur during a construction project. A number of those headers are listed below and in all standard form of JCT Contracts:
- Variations to the Contract
- Instructions issued by the Employer
- The Employer deferring possession of the Site
- Exceptionally adverse weather conditions
- The Employer impeding or preventing the works in any way
- Force majeure
- Suspension of the Works
This list is not exhaustive and to better understand exactly what each term above means, check out our article on Relevant Events.
The important thing with any event that occurs during a construction contract is to understand which category it falls under. Here are two examples:
- The Employer issues you with the Notice to Commence, along with a start date later than that included in the Contract. This would be a Relevant Event in the “Employer deferring possession of the site” category (number three above).
- The Employer changes the specification of the Doors from Aluminium to Steel in one area of the project. This would be a Relevant Event in the “Variations to the Contract” category (number one above).
When an event occurs it’s important to provide notice that you believe the event will cause a delay, along with the Relevant Event category that this event sits within.
What does a Notice look like?
Under JCT Contract forms, at the early stages of submitting a notice of delay, all that is needed is a written notice that you believe the works may be delayed and what has caused that delay. The Contractor needs to describe what has happened and why it’s relevant to justify the notice of a potential delay either to the progress of the project or its completion.
Sticking with the example above of the Delayed Notice to Commence, here’s an example notice:
“Under the contract the Employer is required to give two weeks’ notice in writing that we may commence the project works on site.
The Date of Possession of the site given in the Contract particulars is “X”, which means that your notice to commence should have been received by “Y” date.
We haven’t received your notice and therefore we will be unable to commence the works on the original date of possession. We therefore notify you that as a consequence of the notice to commence not having been received in time, the date for completion of the contract may be “delayed”.
Under JCT Contracts, are there any time restrictions?
Another important element of giving a notice is that it should be issued in accordance with the terms of the specific Contract in every respect – timings, method of service, addresses etc.
Under JCT Contracts you’re obligated to provide notice “as and when it becomes reasonably apparent” rather than during a prescribed time frame. This is the standard drafting of the JCT and tends to mean within a maximum of five working days.
Despite this, remember to always check if your contract has been amended to make notice-giving time barred. It’s critical to implement a procedure for recording delay events at the start of the project. You can read more about how to implement an effective procedure here.
Under JCT Contracts, how do I Extend Time?
When you look to adjust the period for completion, the important thing is to check your specific Contract for exactly what you need to do. There will be a prescribed process that needs to be followed.
In both the JCT Standard Building Subcontract and Design and Build Subcontract, refer to Clause 2.16 for details on how to Adjust the Period for Completion. The following is generally the adopted good practice method for issuing an application for an Extension of Time:
- Relevant Event occurs during the Works
- Contractor provides notice of the Relevant Event within the required time period
- Contractor submits a formal request for an Extension of Time with a detailed explanation and programme appending all Relevant Event notices
What does an Extension of Time Submission need to include?
It’s good practice for Extension of Time submissions to be all encompassing so that the receiver doesn’t need to request additional information to assess the claimant’s rights to an Extension of Time.
I believe that an Extension of Time submission should include the following key elements:
- An executive summary of the pertinent matters
- A review of the key contract terms
- A detailed chronology of all the Relevant Events together with Notices provided as enclosures
- An “As Planned” Programme together with an “As Built” programme showing the key differences and how the various events impacted the programme
It’s best to avoid reference to Loss and Expense in any Extension of Time submission and keep the financial elements as a separate submission. The loss and expense is often harder to prove and results in more questions, which takes longer to conclude.
The Extension of Time on the other hand should be clear and if you can conclude the discussion in regard to time it acts as a shield against any counter claims from the Employer.
Please note, this is not to say that the Loss and Expense submission doesn’t get issued at the same time, just as a separate document/submission.
Final Takeaway thoughts…
Under the JCT and all other forms of Contract, it’s vital that you understand which Relevant Events can be used to claim for an Extension of Time and when you need to provide notice by.
It is best practice to set up a system for tracking and notifying your client of the events. If you run this procedure alongside a regular (weekly/monthly) as built programme update, you’ll find it much simpler to successfully claim and negotiate an Extension of Time, which will make your projects much more successful.