BUSINESS INTELLIGENCE
Cloud cover
By Gavin Doubell
Examining the General Conditions of Contract( standard form) and the contractor’ s position in the event of weather delays experienced in an extended contract period resulting from delays caused by the employer, as well as how the contractor may‘ cover’ itself.
Clause 5.12 of the General Conditions of Contract for Construction Works( Second Edition, 2010) deals with extension of time for practical completion and more particularly, extensions of time in the circumstances of abnormal climatic( weather) conditions( Clause 5.12.2.2). Clauses 5.12.1 and 5.12.2.2 when read together, provide that if the contractor considers himself entitled to an extension of time for abnormal weather conditions that have occurred and which will in fact delay practical completion, then a claim is to be lodged in terms of Clause 10.1. Clause 10.1 deals essentially with the procedural elements of the contractor’ s claim. Clause 10.1.1 refers the contractor back to Clause 5.12 for the computation of its claim“ for additional payment or compensation”. Clause 5.12.3 is then of application. The clause provides that in the event of an extension of time being granted, the contractor“ shall [ only ] be paid additional timerelated General Items”. The position at tender stage is that the contractor is contractually directed, when pricing its tender, to make provision for expected, inter alia rain delays( Clause 2.3 Technical data) and is given statistical data to complete this exercise. The reasonable tenderer will include, when completing this exercise, provisions for its additional expenses, over and above time-related General Items, such as standing resources on all the expected( data provided) abnormal weather‘ days’. At the time of tender, the contractor does not price a tender in circumstances where it anticipates the extension of the contract period and / or makes provision for such a‘ hunch’. Any contract-specific data provided by the employer and relating to abnormal weather conditions is accordingly of no application once the contract period is extended. Any abnormal weather conditions that are experienced during the extended contract period and which give rise to an extension of time, could not and cannot have been anticipated or priced for, and such extensions must be dealt with as and when they occur. The upshot of this is that the contractor, on reading of Clause 10.1 with Clause 5.12.3, is left only with a claim for“ additional time-related General Items” and has no claim for its additional costs, such as the cost of standing resources during the delay period. This is a lacuna in the standard form contract, which ultimately should be cured by SAICE. Other than holding a‘ collective breath’, the contractor, when preparing its tender and now duly warned to seek cover, must pay particular attention to the manner in which contract-specific data( special conditions) is formulated.
36- CEC March 2018