Progress and delay_
Most construction contracts do not give employers much control over contractors' work progress schedules. However, contracts commonly require contractors to submit work programs. These programs are not legally binding like the project specifications. They simply indicate how the contractor intends to schedule the work. If a contract does not include provisions for extending the completion deadline, employers can claim liquidated damages for delays. In one case, a contractor failed to complete work by the original deadline or an extended one, so the owner validly terminated the contract. Contracts also typically include clauses governing extensions of time for contractors. These clauses outline the process for requesting extensions and the events that would warrant granting more time, such as delays beyond a contractor's control.
Progress and delay_
- 1. Progress, Delay and Completion Lecture week 5/6
- 2. Progress Most contract provides the employer/ his administrator with little control over contractor’s work progress, as it is the contractor’s obligation to finish on time-cl 21.1 However, it is common for the contract to include a requirement for the contractor to submit the work programs to the employer-cl 3.5
- 3. In any circumstances, the work program shall not constitute as the contract document- cl. 3.6 Max W Abrahamson in Engineering Law and ICE Contracts(1991): ‘ The programme, for example, is not a contractual in the same sense as the specification, since neither the contractor nor the employer is bound by it. The programme is what it is- a document indicating the intention of the contractor at the time he furnishes it as to how he intends to progamme the works’.
- 4. Delay If there is no provision in the contract relating to extension of contract’s period, then if the contract is not completed on time, the employer is entitled for liquidated damages.
- 5. Chua Ngah Chin v Ng Kie En The plf employed the def as the contractors to build a terrace house in Kuching, Sarawak.The contract has no provision for extension of contract period except for cl.6 of the contract which stated:- if the building was not completed within 15 months of the date of the contract ‘raining days and public holidays expressly excluded’, the owner could revoke the contract.
- 6. The contractor later claimed for extension of four months but still failed to complete the work after the extension period. The plf gave notice of termination and applied for removal of def’s caveat of the land. Held: The owner (plf) is entitled to revoke the contract and removal of the caveat. The term raining days was imprecise, but even if the contractor had been allowed four months, as he had claimed, he had still failed to complete.
- 7. In the absence of express provision on extension of period of completion, the architect has no power to extend the period. Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd Per Salmon LJ: ‘If the employer wishes to recover liquidated damages for failure by the contractors, to complete on time in spite of the fact that some of the delay is due to the employer’s own fault, or breach of contract, then the extension of time clause should provide, expressly or by necessary inference, for an extension on account of such a fault or breach on the part of the employer.’
- 8. Extension of time (EoT) In the standard form of building contract, there is a provision on rights of the contractor to apply to extension of the contract period-cl.23 Rights and procedure: cl 23.1 Right of employer via architect – cl 23.4 – Request for further document- cl 23.3 –Other Considerations-cl 23.5
- 9. Even though, it is the contractual right of the contractor to claim for EoT, the contractor also has the obligation to prevent any delay-cl.23.6
- 10. Events for EoT The architect in exercising his discretion to grant Eot has to take into consideration the relevant event for EoT: cl.23.8 (a)-(x) (These circumstances are known as grounds for EoT)