Civil Engineering Reference
In-Depth Information
14.4.3 Commentary
The initiative for taking action under this provision lies with either the
contractor or the PM. Usually, the contractor will request an extension of
time, but he may not do this after completion of the works. Clause 36(1)
stipulates that such a request must include grounds for the request. The
degree of detail is not specified, but at the very least it must contain suffi-
cient information to enable the PM to understand why the contractor con-
siders he is entitled to an extension of time. In practice, a contractor will be
wise to submit a very detailed request. This clause does not expressly
empower the PM to require further information but, if such power is
needed, it can probably be implied from the wording of clause 25 requiring
the contractor to keep records required by the PM. The grounds for
extension of time are expressed broadly:
Execution of modified or additional work
For example, following an instruction under clause 40(2)(a). This ground
may, and independently, give rise to a money claim under clauses 41(2),
42(2)(b) and 42(6).
Act, neglect or default of the employer or the PM (excluding contractor's fault)
This ground would extend to cover the acts etc. of those for whom the
employer or the PMwere vicariously responsible in law. Aprobably unneces-
sary proviso has been added to make clear that the original cause must not be
any default or neglect of the contractor or any of his employees, agents or sub-
contractors. At first sight, this kind of proviso might appear designed to get
around the ordinary rules of causation
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and that appears to be the case. On
its ordinarymeaning, the phrase 'not arising because of' is the same, or nearly
so, as 'not arising as a result of '. This is to remove from the scope of this clause
any situation where the default or neglect of the contractor has created a
situation following which the employer or PM might perform some act,
neglect or default which will cause the contractor to be delayed. The phrase
'not arising because of' is much broader than 'not caused by'. The former
envisaging a situation which, created by the contractor, permits or probably
invites action by the employer or the PM; the latter being a situation which
inevitably leads on to the employer's or the PM's actions.
Strike or industrial action outside the control of the contractor or his
sub-contractors and which delays or prevents the works
Any strike or any kind of industrial action is included, probably even a
work to rule. There are only two stipulations: it must delay or prevent
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Causation is considered in Chapter 7.
