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