INTRODUCTION This session will deal with two contractual areas frequently encountered when administrating a contract and which if not properly dealt with might result in a great lost to the Contractor in terms of both money and time (which incidentally also translates back to money). These areas are the provisions of the Contract, which deal with: a) b)
Extension of time Loss & Expense (as often referred to by us)
The best kept secret about these Clauses are that they are provided to provide assistance to client and their removal will actually result in great difficulty to the Client (sometimes the removal of these Clause would trap the client in a very uncomfortable position, contractually). Therefore if ever the client implies that the extension of time or loss and expense are for the contractor’s advantage, he should be reminded that the actual case is otherwise. However the importance of these Clauses to us, are that they provide a contractual avenue to claim additional time and money without actually resorting to litigation. The reason both these Clauses are being dealt together is because the claim arising would normally lead to a claim in the other especially in the case of an extension of time claim. Therefore let us proceed with the examination of the various different standard contract forms and the provisions dealing with extension of time and loss and expense. The examinations of these Clauses are to: a)
identify the notification requirement
b)
set up Claim Action Plan and Procedures
c)
set up Claim Substantiation
d)
set up Record Keeping and Filing
e)
create Standard Correspondence and Forms
FIDIC FORM OF CONTRACT CONDITIONS 44.1 EXTENSION OF TIME FOR COMPLETION In the event of: a)
the amount or nature of extra or additional work, or
b)
any cause of delay referred to in these Conditions, or
c)
exceptionally adverse climatic Conditions, or
d)
any delay, impediment or prevention by the Employer, or
e)
other special circumstances, which may occur, other than through a default of or breach of contract by the Contractor or for which he is responsible,
being such as fairly to entitle the Contractor to an extension of the Time for Completion of the Works, or any Section or part thereof, the Engineer shall, after due 'consultation with the Employer and the Contractor, determine the amount of such extension and shall notify the Contractor accordingly, with a copy to the Employer. 44.2
CONTRACTOR TO PROVIDE NOTIFICATION & DETAILED PARTICULARS
Provided that the Engineer is not bound to make any determination unless the Contractor has: a)
within 28 days after such 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.
44.3 INTERIM DETERMINATION OF EXTENSION Provided also that where an event has a continuing effect such that it is not practicable for the Contractor to submit detailed particulars within the period of 28 days referred to in Sub-Clause 44.2(b), he shall nevertheless be entitled to an extension of time provided that he has submitted to the Engineer interim particulars at intervals of not more than 28 days and final particulars within 28 days of the end of the effects resulting from the event. On receipt of such interim particulars, the Engineer shall, without undue delay, make an interim determination of extension of time and, on receipt of the final particulars, the Engineer shall review all the circumstances and shall determine an overall extension of time in regard to the event. In both such cases, the Engineer shall make his determination after due consultation with the Employer and the Contractor and shall notify the Contractor of the determination, with a copy to the Employer. No final review shall result in a decrease of any extension of time already determined by the Engineer.
THE FIDIC FORM (FOURTH EDITION OF THE FIDIC FORM) Currently enjoying wide usage among internationally financed project and other large civil project and also is similar to Civil Engineering Works Form used by JKR. The above Clause allows for extension of time to be claimed for the reason stated. However, any other event arising due to reasons beyond the control of the Contractor would also entitle him to an extension of time, the main reasons are a)
extra or additional work arisen a result of a variation order.
b)
change in quality, kind or character of any such work.
c)
inclement of weather.
d)
delay in providing information or instruction by the client/representative.
e)
unforeseen physical or artificial obstruction.
f)
delay in clarifying discrepancies or ambiguities in the contract document.
g)
delay as a result of an Engineer's instruction which - could not have been reasonably foreseen at the time of tender.
h)
change in construction method from that which would have been reasonably used for the said works as would have been contemplated at the time of tender.
i)
delay from independent contractors or caused by additional work related to the said contractors.
j)
delay from Nominated Subcontractor or Nominated Suppliers.
k)
delay due to the suspension of work.
1)
failure to give full and vacant, possession on time.
m)
act of God.
n)
force majeure.
o)
strike.
p)
lockout or civil commotion.
r)
other reason beyond the control of Contractor.
NOTIFICATION a)
i) ii)
The Contractor is to notify the Engineer and; send a copy of the notice to the Employer.
b)
The notice is to be sent within 28 days from the commencement of the event.
c)
The submission of detailed particulars of the extension of time within 28 days from the date of notification. However, the Engineer may extend the duration required for the submission of the detailed particulars.
i)
If however the event is continuing and therefore making it not practicable to submit the details within 28 days as above.
ii)
There can be interim submission at intervals of not more than 28 days, and
iii)
Not later than 28 days after the end of the event the final substantiations has to be submitted.
ACTION PLAN AND PROCEDURES 1)
2)
Upon identification of an event that would likely result in an extension of a time a notice has to be prepared and send: a)
the original to the Engineer.
b)
a copy to the Employer.
The compilation of all related documentary evidence a)
letters from the Engineer.
b)
letters from any third party employed by the Employer.
c)
letters from the Nominated Subcontractor or Nominated Suppliers.
d)
document from authorities related to the event.
CLAIM SUBSTANTIATION There is no specific requirement, which means that there must be adequate evidence of: a)
the total amount of delay claimed.
b)
the related action of all parties including ours.
c)
specific documentation related to the event.
RECORD KEEPING AND FILING All copies of documents to be filed in one file and all related documents subsequently received also should be filed (copies of such documents) in the same file. All claims should be recorded and kept in the standard form as in Appendix A.
Standard Correspondence Dear Sir CONTRACT: SUBJECT: APPLICATION FOR EXTENSION OF TIME We herewith make application for extension of time pursuant to Clause 44 of the Conditions, having previously given notice of our intention to claim for delay by cover of our letter/letters dated……………and now noting the consequence of such delay/delays to be reasonably apparent. The circumstances giving rise to delay/most recent circumstances giving rise to delay are……………………………. This delay/[and] delays previously notified arise(s) on the ground of: Clause
Reason Clarification of ambiguity. Late receipt of setting out information. Late receipt of drawings. Late receipt of details. Late receipt of bending schedules. Encountering physical or artificial obstruction which could not have been reasonably foreseen by an experienced Contractor. Compliance with an Engineer's instruction causing delay that could not reasonably have been foreseen by an experienced Contractor at the time of tender. Late consent to the proposed method of construction.
Time in Weeks
Clause
Reason
Time In Weeks
The putting forward of methods of construction for the Engineer's approval the nature and complexity of which could not reasonably have been foreseen by an experienced Contractor at the time of the tender. Limitation imposed on the methods of construction to comply with design criteria supplied by the Engineer and not made available at the time of tender. Correction of setting out-of the works due to errors attributable to wrong setting out information provided by the Engineer. The making of boreholes or carrying out of exploratory excavation not provided for under the Contract. Making good damages, loss or injury attributable to an excepted risk. Carrying out varied work to obtain compliance with a statute, ordinance, law regulation or byelaw. Delay by an independent Contractor or duly constituted authority. Provision of facilities for independent Contractor or duly constituted authority. Suspension of work or part of the work. Suspension of work or part of the work arising due to no fault of the Employer. Non-availability of the site or part of the site. Increase in quantities due to a variation (Clause……………….). Due to a variation in accordance to the conditions of contract (Clause…………)
Clause
Reason
Time In Weeks
+
Exceptionally adverse climatic conditions.
+
Strike or lock-out not caused directly by the unreasonable action of the Contractor being a special circumstance.
+
Non-availability of Employer - supplied free issue materials being a special circumstance.
+
A special circumstance in the form of Total/Cumulative total of weeks applied for
……………… ………………
We deem all these week/s of these week/s……………………. rate for an additional payment pursuant to Clause 53 of the Conditions, the appropriate notice/notices having been previously given. Yours faithfully Note: - All events marked with an asteric (+) will also lead to a claim in loss and/or expense, and item marked with a will be items for which the cost of the event has to be borne by the Contractor.
Standard Correspondence
Dear Sir CONTRACT: SUBJECT: NOTICE FOR THE EXTENSION OF TIME We herewith give notice of our intention to claim for extension of time pursuant to Clause 44 of the condition of contract. This event which causes this delay commenced on…………………………..and is still continuing/or ended on the………………… The delay circumstance-giving rise to the delay or- most recent circumstance-giving rise to the delay is: Clause
Reason
Time In Weeks
We will submit further details to substantiate this claim within……………………….. day in accordance to the Clause……………………………of the conditions of contract. * Notice is also given that we shall pursuant to Clause make a claim for loss and/or expense. The total amount being claimed in accordance to the Clause is……………………… Please revert to us if you require any further information with regards to our claim for extension of time and loss and/or expense.
Yours faithfully
PROCEDURE FOR CLAIMS
53.1 NOTICE OF CLAIMS Notwithstanding any other provision of the Contract, if the Contractor intends to claim any additional payment pursuant to any Clause of these Conditions or otherwise, he shall give notice of his intention to the Engineer, with a copy to the Employer, within 28 days after the event giving rise to the claim has first arisen. 53.2 CONTEMPORARY RECORDS Upon the happening of the event referred to in Sub-Clause 53.1, the Contractor shall keep such contemporary records, as any reasonably be necessary to support any claim he may subsequently wish to make. Without necessarily admitting the Employer's liability, the Engineer shall, on receipt of a notice under Sub-Clause 53.1, inspect such contemporary records and instruct the Contractor to keep any further contemporary records as are reasonable and may be material to the claim of which notice has been given. The Contractor shall permit the Engineer to inspect all records kept pursuant to the Sub-Clause and shall supply him with copies thereof as and when the Engineer so instructs. 53.3 SUBSTANTIATION OF CLAIMS Within 28 days, or such other reasonable time as may be agreed by the Engineer, of giving notice under Sub-Clause 53.1, the Contractor shall send to the Engineer an account giving detailed particulars of the amount claimed and the grounds upon which the claim is based. Where the event giving rise to the claim has a continuing effect, such account shall be considered to be an interim account and the Contractor shall, at such intervals-as the Engineer may reasonably require, send further interim accounts giving the accumulated amount of the claim and any further grounds upon which it is based. In cases where interim accounts are sent to the Engineer, the Contractor shall send a final account within 28 days of the end of the effects resulting from the event. The Contractor shall, if required by the Engineer so to do, copy to the Employer all accounts sent to the Engineer pursuant to this Sub-Clause.
53.4 FAILURE TO COMPLY If the Contractor fails to comply with any of the provisions of this Clause in respect of any claim which he seeks to make, his entitlement to payment in respect thereof shall not exceed such amount as the Engineer or any arbitrator or arbitrators appointed pursuant to Sub-Clause 67.3 assessing the claim considers to be verified by contemporary records (whether or not such records were brought to the Engineer's notice as required under Sub-Clause 53.2 and 53.3). 53.5 PAYMENT OF CLAIMS The Contractor shall be entitled to have included in any interim payment certified by the Engineer pursuant to Clause 60 such amount in respect of any-claim as the Engineer, after due consultation with the Employer and the Contractor, may consider due to the Contractor provided that the Contractor has supplied sufficient particulars to enable the Engineer to determine the amount due. If such particulars are insufficient to substantiate the whole of the claim, the Contractor shall be entitled to payment in respect of such part of the claim as such particulars may substantiate to the satisfaction of the Engineer. The Engineer shall notify the Contractor of any determination made under this Sub Clause, with a copy to the Employer.
PROCEDURES FOR CLAIMS This Clause deals with all additional claims for reimbursement not dealt with by other provisions for payments in the Conditions. This Clause is not an automatic provision enabling a claim for additional payment each time there is an extension of time but reasons marked with an asteric (*) in the letter for claim of extension of time can result in the operation of this provision. The requirements for this Clause are as follows: NOTIFICATION 1)
Notice to be issued within 28 days from the event giving rise to-the claim (with a copy to the employer).
2)
To keep records of all related documents and correspondence and to also keep any other record as instructed by the Engineer.
3)
To allow the Engineer to inspect the records.
4)
Within 28 days of giving the notice, we must provide an estimate and the grounds for the claim with documents and other evidence of the cost.
5)
If the event is continuing, the action above (4) must be repeated at reasonable interval as required by the Engineer and within 28 days of the end of the event we must provide the final substantiation.
Failure to comply with the above requirements will result in us being unable to claim more than what the Engineer or Arbitrator reasonably certifies based on the available records. If the claim is approved then we are entitled to receive the sum in our following interim payment. ACTION PLAN & PROCEDURES 1)
The keeping all documents related to the, basis of the claim.
2)
Keep records of all expenditure incurred eg. a) plants and machinery b) workmen c) preliminaries d) material e) other related details eg. construction method legal requirement (fees).
3)
Obtain verification of the event from the Engineer.
4)
Evidence that we had everything in our ability to reduce the loss.
CLAIM SUBSTANTIATION 1)
Record in a chronological order of all activities executed.
2)
Evidence of the cause of the originating evidence.
3)
All records related workmen employed on the works.
4)
Material used.
5)
Fee, license, contribution royalties and the like.
6)
Preliminary items.
7)
Records disruption cost in terms of lost productivity or uneconomic scale of work.
RECORD KEEPING & FILING Similar to the requirements in Clause 44 of the FIDIC Form.
Standard Correspondence Dear Sir CONTRACT: SUBJECT: CLAIM NOTIFICATION We herewith notify your good office of our intention to make a claim for additional payment in accordance to Clause 53 of this Contract pursuant to Clause…………………of the conditions of the Contract. In the event giving rise to this claim is……………………..which therefore us to be reimbursed in accordance to Clause……………………………. Please revert to us if you require any further clarification or information. Yours faithfully
Standard Correspondence Dear Sir CONTRACT: SUBJECT: SUBSTANTIATION OF CLAIM We herewith provide all necessary substantiation for our claim as entailed in our letter ref…………………dated…………….as required pursuant to Clause 53.3. Please find the said information as in the attached appendix. If any further clarification is required please revert stating your- requirement. Yours faithfully
JKR 203 GOVERNMENT STANDARD FORM OF CONTRACT 43.
DELAY AND EXTENSION OF TIME
Upon it becoming reasonably apparent that the progress of the Works is delayed, the Contractor shall forthwith give written notice of the causes of delay to the S.O. and if in the opinion of the S.O. the completion of the Works is likely to be delayed or has been delayed beyond the Date for Completion stated in the Appendix or beyond any extended Date for Completion previously fixed under this Condition a)
by force majeure, or
b)
by reasons of any exceptionally inclement weather, or
c)
by reason of directions given by the S.O. consequential upon disputes with neighbouring owners provided the same is not due to any act, negligence or default of the Contractor or any sub-contractor, nominated or otherwise, or
d)
by reason of loss or damage occasioned by any one or more of the contingencies referred to in Clause 36 hereof (provided and to the extent that the same is not due to any act negligence, default or breach of contract by the Contractor or any sub-contractor, nominated or otherwise, whether in failing to take reasonable steps to protect the Works or otherwise), or
e)
by reason of S.O. 's instruction issued under Clause 5 hereof, provided that such instructions are not issued due to any default or breach of contract by the Contractor or any sub-contractor nominated or otherwise, or
I)
by reason of the-Contractor not having received in due time necessary instructions, drawings, levels or instructions in regard to the nomination subcontractors and/or suppliers provided in this Contract, from the S.O. due to any negligence or default of the S.O. and for which he shall have specifically applied in writing on a date which having regard to the Date for Completion stated in the Appendix to these Conditions or to any extension of time then fixed under this Conditions, was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same, or
g)
by reason of delay in giving possession of the Site as provided under Clause 38 (d) hereof, or
h)
by reason of any action due to local combination of workmen, strike, or lockout affecting any of the trades employed upon the Works, provided the same are not due to any unreasonable act, neglect or default of the Contractor or of any sub-contractor, nominated or otherwise, or
i)
by delay on the part of artists, tradesmen or others engaged by the Government in executing work not forming part of this Contract, or
j)
by the Contractor's inability for reason beyond his control and which he could not reasonably have foreseen at the date of closing of tender of this Contract to secure such goods and/or materials as are essential to the proper carrying out of the Works, or
k)
by delay on the part of Nominated Sub-Contractors and/or Nominated Suppliers of their works, and such delay shall be caused by the same reasons affecting their work as stated above in Sub-Clauses (a) to (j) inclusive (provided that the same are not due to any act, negligence, default or breach of contract by the Nominated Sub-Contractor and/or Nominated' Supplier and/or the Contractor, or any of the servants or agents of such Nominated SubContractor or Nominated Supplier or the Contractor);
then S.O. shall so soon as he is able to estimate the then length of the delay beyond the date or time aforesaid make in writing a fair reasonable extension of time for completion of the Works, provided always that the Contractor shall use constantly his best-endeavours to prevent delay and shall do all that may reasonably be required to the satisfaction of the S.O. to proceed with the Works. The certificate issued by the S.O. under this Condition shall be referred to as the "Certificate of Delay and Extension of Time".
THE JKR 203-CONDITIONS OF CONTRACT
DELAY AND EXTENSION OF TIME Delay and extension of time for the delays in the JKR 203 are strictly limited to a few applicable reasons. The Contractor bears the risk of any other event arising and causing a delay, which is not the fault of either party. The reasons allowed for extension of time are 1)
force majeure.
2)
Exceptionally inclement weather.
3)
S.0.'s instruction due to disputes with neighbouring owners, which was not caused by the Contractor, his agents or his subcontractors.
4)
Loss due to cause in Clause 36 as long as the loss or damage is not attributable to the Contractor or his agents.
5)
Due to the S.O.'s instruction in Clause 5 but 'the instruction should have been issued to remedy a breach caused by the Contractor.
6)
Delay in receiving instruction or information when it was due after making an application for the information or instruction within a reasonable period*.
7)
Delay in giving possession of the site.
8)
Commotion, strike, lockouts which are not the fault of the Contractor.
9)
By others engaged by the Government executing work, which is not part of the Contract.
10)
Unable to secure goods/material by reasons beyond his control which he could not have foreseen at the time of tender.
11)
Delay by the Nominated Subcontractor/Supplier due to reasons stated before from (1) to (9), which was not caused by the Contractor or his agents.
The operation of the provision requires the following: NOTIFICATION 1)
The Contractor is to notify in writing to the S.O. of any delay stating the cause of the delay.
2)
The notification has to be done upon it becoming reasonably apparent that the progress of the works is delayed - upon the delay actually happening and then becoming apparent to the Contractor.
3)
The notice must include the cause for the delay and also provide substantiation to enable the verification of the cause.
ACTION PLAN & PROCEDURE 1)
Submission of notice.
2)
Submission of the cause and all related substantiation.
CLAIM SUBSTANTIATION Not expressly required but there is implication that the cause must be substantiated; 1)
Requirement as per FIDIC requirement.
RECORD KEEPING AND FILING 1)
similar to that required in administering the FIDIC Form of Contract.
Standard Correspondence Dear Sir CONTRACT: SUBJECT: NOTICE OF THE DELAY IN THE PROGRESS OF WORKS We herewith notify you pursuant to Clause 43 that the progress of work has been delayed due to…………………………, and that we are submitting the details of the said cause for your attention (refer to attachment). Please revert to us if any further details are required. Yours faithfully
44.
LOSS AND EXPENSE CAUSED BY DELAYS
If the regular progress of the Works or any part thereof that been materially affected by reason as stated under Clause 43 (c), (f) or (i) hereof (and no other), and the Contractor has incurred direct loss and/or expense for which he would not be reimbursed by a payment made under any other Provision in this Contract. Then the Contractor shall within one (1) month of the occurrence of such event of circumstance give notice in writing to the S.O. of his intention to claim for such direct loss or expense together with an estimate of the amount of such-loss and/or expense, subject always to Clause 48 hereof.
LOSS & EXPENSE CAUSED BY DELAY This provision for loss and expense in the JKR 203 Clause 44 is only limited to claim for additional reimbursement for loss or expenses caused by limited types of delays. The delays, which give rise to a loss and expense Claims are 1)
Delays due to S.O.'s instruction [Clause 43 (C)] which was not due to any fault of the Contractor.
2)
Delays in receiving instruction or information which required and the requirement brought to the attention of the S.O. a reasonable duration before the actual requirement [Clause 43(f)].
3)
By delay of other engaged by the Government but where 'the work is not forming part of the Contract.
NOTIFICATION 1)
To provide a notice of intention to claim-together with an estimate.
2)
Notice is to be lodged within one month of the occurrence of the event. Occurrence here means happening, therefore upon the beginning of the event causing the delay, the event is occurring.
3)
All the particular, documents and evidence must be furnished to the S.O. before 3 months after the practical completion is achieved.
ACTION PLAN & PROCEDURE 1)
Classify the delay.
2)
Lodge the notice for intention to claim loss-and expense and submit an estimate all within one month from the beginning of the delay.
3)
Organise all substantiation for the claim including all documents, correspondence, site records and invoices, bills etc.
4)
Submit all substantiation within the duration of three (3) months after practical completion is achieved.
CLAIM SUBSTANTIATION 1)
Plant and machinery records.
2)
Material records.
3)
Workmen requirement records.
4)
Loss of productivity records.
5)
Preliminary records.
6)
Disruption records.
7)
Other cost incurred records.
RECORD KEEPING AND FILING Similar to that required in the administration of the FIDIC Contract. Note: Clause 5(d) allows for any loss and expense arising from any S.O.'s instruction for which the loss and expense could not have been reasonably known by the Contractor at the time of tender. The Contractor is also required to notify as per Clause 44 but the time limitation is one month from the instruction.
Standard Correspondence
Dear Sir CONTRACT: SUBJECT: CLAIM FOR LOSS & EXPENSE We herewith write to inform you that pursuant to Clause 44 of the Conditions of Contract, we are notifying your good office of our intention to claim for loss and expense for………………………. We also submit that our interim* estimate of the claim is……………………… We shall submit all relevant particulars in accordance to Clause 48 within the allowed duration.
Yours faithfully
*
Delete if not applicable, if applicable provide a rate for fixed duration which can use to determine the amount.
PAM FORM OF CONTRACT CONDITIONS
CLAUSE 24 LOSS AND EXPENSE CAUSED BY DISTURBANCE OF REGULAR PROGRESS OF THE WORKS 1.
If upon written application being made to him by the Contractor, the Architect is of the opinion that the Contractor has been involved in direct loss and/or expense for which he would not be reimbursed by a payment made under any other provision in this Contract by reason on the regular progress--of the Works or of any part thereof having been materially affected by
a)
the Contractor not having received due time necessary instructions, drawings, details or levels from the Architect for which he specifically applied in writing on a date which regard to the Date for Completion stated in the appendix to these Conditions or to any extension of time then fixed under Clause 23 or Clause 32 (I) (c) of these Conditions was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same; or
b)
the opening up for inspection of any work covered up or the testing of any of the work materials or goods in accordance with Clause 6 (3) of these Conditions (including making odd in consequences or such opening up or testing), unless the inspection or test showed that the work, materials or goods were not in accordance with this Contract; or
c)
any discrepancy in or divergence between the Contracts Drawings and/or the Contract Bills; or
d)
delay on the part of artists tradesmen, or others engaged by the Employer in executing work not forming part of this Contract; or
e)
Architect's instructions issued in regard to the postponement of any work to be executed under the provisions of this Contract;
and if the written application is made within a reasonable time of it becoming apparent that the progress of the Works or of any part thereof has been affected as aforesaid, then the Architect shall either himself ascertain or shall instruct the Quantity Surveyor to ascertain the amount of such loss and/or expense. Any amount from time to time so ascertained shall be added to Contract Sum, and if an Interim Certificate is issued after the date of ascertainment any such amount shall be added to the amount which would otherwise be stated as due in such Certificate. 2.
The provisions of this Condition are without prejudice to any other rights and remedies, which the Contractor may possess.
LOSS & EXPENSE CAUSED BY DISTURBANCE OF REGULAR PROGRESS OF THE WORKS This Clause deals exclusively with some named events, which can result in loss and/or expense to the Contractor. The events are as following: a)
events that would enable the Contractor to claim extension of time in Clause
i) 23(f) ii) 23(1) iii) 23(h) b)
discrepancy or divergence between the Contract drawing and/or the Contract Bills.
c)
Architect instruction postponing any of the works to b e executed.
and this provision allows 'for reimbursement of the loss and/or expense, arising from the disturbance to the regular progress of work. The following are the practical implication of the provision: NOTIFICATION 1)
Written notice that the progress of work has been affected.
2)
Within a reasonable time after the loss and/or expense is apparent (know).
ACTION PLAN AND PROCEDURE 1)
Writing in the notice that the progress of work has been materially affected within the time limitation.
2)
Providing all necessary information, documents and evidence to the Architect to allow him to process the claim.
CLAIM SUBSTANTIATION The requirements are similar to the requirements of the JKR's claim substantiation as in JKR 203's requirement for loss and expense.
RECORD KEEPING & FILING The requirements are similar to the requirements of the JKR'S record keeping and filing as in JKR 203's requirement for loss and expense.
Standard Correspondence
Dear Sir CONTRACT: SUBJECT: CLAIM FOR DIRECT LOSS AND/OR EXPENSE We herewith make an application for direct loss and/or expense pursuant to Clause 24 of the condition due to the regular progress of works being materially affected by………………… Please revert to us if you require any further clarification or information with regard to the above claim.
Yours faithfully
Clause 23 EXTENSION OF TIME 1.
Upon it becoming reasonably apparent that the progress of the Works is delayed, the Contractor shall forthwith give written notice of the cause of the delay to the Architect, and if in the opinion of the Architect the completion of the Works is likely to be or has been delayed beyond the Date for Completion stated in the appendix-to these Conditions or beyond any extended time previously fixed under either this Clause or Clause 32(1)(c) of these Conditions
a)
by force majeure, or
b)
by reason of any exceptionally inclement weather, or
c)
by reason of loss or damage occasioned by any one or more of the contingencies referred to in Clause 20(A), (B) or (C) of these Conditions or
d)
by reason of civil commotion, local combination of workmen, strike or lockout affecting any of the trades employed upon the Works or any of the trades engaged in the preparation, manufacture or transportation of any of the goods or materials required for the Works, or
e)
by reason of Architect's - instructions issued under Clauses 1(2), 11(1) or 21(2) of these Conditions, or
f)
by reason of the Contractor not having received in due time necessary instructions, drawings, details or levels from the Architect for which he specifically applied in writing on a date which having regard to the Date for Completion stated in the appendix to these Conditions or to any extension of time then fixed under this Clause or Clause 32(1)(c) of these Conditions. was neither unreasonably distant from nor unreasonably close to the date on which it was necessary from him to receive the same, or
9)
by delay on part of Nominated Sub-Contractors or Nominated Suppliers which the Contractor has taken all practicable steps to avoid or reduce, or
h)
by delay on part of artists, tradesmen or others engaged by the Employer in executing work not forming part of this Contract, or
(i)
by reason of the opening up for inspection of any work covered up or of the testing of any of the work materials or goods in accordance with Clause 6(3) of these Conditions (including making good in consequence of such opening up or testing), unless the inspection or test showed that the work materials or goods were not in accordance with this Contract, or
(j)
by the Contractor's inability for reasons beyond his control and which he could not reasonably have foreseen at the date of this Contract to secure labour goods or materials are essential to the proper carrying out of the Works.
then the Architect shall so soon as he is able to estimate the length of the delay beyond the-date or time aforesaid make in writing a fair and reasonable extension of time for completion of the Works. Provided always that the Contractor shall use constantly his best endeavours to prevent delay and shall do all that may reasonably be required to the satisfaction of the Architect to proceed with the Works. *
Footnote - Strike out if Sub-Clause (J) is not to apply.
PAM FORM OF CONTRACT EXTENSION OF TIME The requirement in the PAM Form is only for a limited number of reasons, all other reasons will not result in extension of time and the Contractor bears the risk and loss for delays, which arise to no fault of either party, which are not provided for in the provision. The events that will result in an extension of time for the Contractor is: 1)
force majeure.
2)
Exceptionally inclement weather.
3)
Loss or damages claimable from the insurance.
4)
Civil commotion, local combination of workmen strike or lockout.
5)
Architect's instruction issued under Clause 1(2), 11(11) or 21(2).
6)
Late delivery of information or instruction requested by the Contractor within a reasonable duration from the date on which the information or instruction is required.
7)
Delay by Nominated Subcontractor or Nominated Supplier for which the Contractor has taken all practicable steps to overcome.
8)
Delay by others employed by the Client executing works not forming part of the Contract.
9)
Delay because of opening up and inspecting work, which is not detective.
10)
Inability to secure goods/material for reasons beyond the Contractors control for which the Contractor could not have reasonably foreseen at the time of the tender.
IMPORTANT LEGAL INTERPRETATION TO THE CLAUSE 23 1)
Notice by the Contractor is not condition precedent.
2)
Architect on his own accord must process an extension of time.
3)
Failure to give notice is a breach of Contract and therefore if the delay could have been reduced by early notice such as extra period will not be taken into account.
4)
A notice not stating the cause of delay is still acceptable as a good notice.
5)
The Contractor must provide all necessary information to enable the Architect to make an accurate evaluation of the extension time.
[London Borough-of Merton v Stanley Hugh Leach Ltd (1985)] The
following are the requirements and duties arising from the provision: -
NOTIFICATION 1)
A written notice stating the cause of the delay.
2)
The notice is to sent in upon it becoming reasonably apparent the project is delayed.
3)
All related documents, correspondence and evidence should also be furnished to the Architect.
ACTION PLAN AND PROCEDURES As per the requirement set out in JKR 203's action plant and procedures section. CLAIM SUBSTANTIATION As per the requirement set out in JKR 203's claim substantiation section. RECORD KEEPING AND FILING As per the requirement set out in JKR 203's record keeping and filing section.
STANDARD CORRESPONDENCE AS per the requirement set out in JKR 203's standard correspondence section.
Note
Please refer to the attached flowchart.
GUIDELINES ON THE USE OF THE CCML.01 AND CCAS.01
1.0 OBJECTIVE 1.1 Purpose of the CCML.01 and CCAS.01 is to allow for a)
The highlighting of all contractual issues encountered in the Project, to allow for any necessary contractual suggestions and advise from the Contracts Department (Contractual Services Division).
b)
The provision of a complete list of all contractual problems encountered in the Project.
c)
The preparation of a joint action plan at an early stage to avoid any contractual resistance or hindrance at a later stage.
d)
The proper monitoring of all related documents and correspondence to ensure efficient records and easy discovery.
e)
The monitoring of all action undertaken and the progress of the claim, including the subsequent adjustment of the Action Plan in the event there are circumstances, which warrant it.
2.0
SCOPE This procedure and all the related forms are to be used on all projects undertaken by the Company immaterial of the type of Standard Form of Contract being utilised in the Project.
3.0
DEFINITION
4.0
IMPLEMENTATION REQUIREMENT
4.1
The successful implementation of this form will depend on prompt and accurate reporting and recording all relevant information. All persons described below are required to adhere and execute their respective responsibilities accordingly.
4.2
The PIC of each Project shall have overall control and are to ensure that all activities are executed promptly and accordingly. They shall ensure that any new claim arising shall be documented in the CCML.01 and that all the relevant information be included immediately. All new claims shall be so recorded to allow for the compiling of a complete master list. They shall ensure that any contractual claim arising is immediately recorded by him or any site personnel assigned by them to do so. They shall also ensure that all incoming or outgoing correspondence related to the claim (in any manner whatsoever) shall have its reference number recorded and a photocopy made; this shall be done upon receipt or despatch of the letter or document. The photocopy shall at all times be attached to the original CCAS.01 form, which details the said claim.
