A further obstacle-providing notification of a delay
As a precursor to being granted relief for an excusable delay, most standard forms of construction contracts require the contractor to provide notification when the progress of the works is affected by a delay, excusable or otherwise, as close as possible to when the delay arises. For example clause 2.27 of the JCT Standard Form, 61.3 of the NEC3, clause 20.1 of the FIDIC red book and clause 18.4 of the PPC2000 all expressly state a requirement for such notice.
The common law position raises doubts as to whether a condition precedent, as set out within the JCT suite, is effective in dismissing the prevention principle in relation to an excusable critical delay12, although the NEC3 and FIDIC forms expressly state that a failure to provide a timely notification dismisses any subsequent claim for an extension of time13.
The basis for an award
If a contractor demonstrates that an excusable delay event was critical then there is an obligation upon the employer (or its representatives) to make a fair and reasonable assessment of what the excusable delay to the completion date is/was and the entitlement to an extension of time which is due.
The judgment in John Barker Construction v London Portman Hotel [1996]14 sought to clarify the subjectivity of this process and set out the following criteria to be adopted in calculating a 'fair and reasonable' award:
1. application of the rules of the contract;
2. recognition of the effects of change;
3. a logical analysis, in a methodical way, of the effect of relevant events on the contractor's programme; and, 4. an objective calculation, rather than an impressionist assessment, of the delay caused by the excusable event(s).
Therefore it would follow that any extension of time application prepared by a contractor should assist the employer in carrying out the above steps. In doing so the importance of a proper critical path analysis, to illustrate the delay to the completion date experienced, cannot be overlooked.
Conclusion
The majority of standard forms of construction contract enable the contract administrator to grant an extension of time where a delay occurs due to its own act of prevention or for certain other specified causes. However, before the employer can grant an extension of time, it needs to be satisfied that not only has an excusable event, as defined under the contract, occurred, but also that it is likely to cause, or has caused, the completion of the works to be delayed.
Herein lies the opportunity for the contractor to assist in this evaluation process by way of including a robust delay analysis demonstrating the causative effect of the excusable delay. The proper application of a critical path analysis, although not compulsory, can accordingly be used to effectively demonstrate the criticality of delays, either as a driving delay or concurrent delay, and the entitlement to an extension of time which is due as a result.
Reproduced with permission of the Chartered ICES Construction Law Review, 2016.