Civil Engineering Reference
In-Depth Information
procedures in the construction industry and it is an open invitation to
adjudication or arbitration.
Adjustment of damages for delay
Clause 11.4 applies whichever of the foregoing alternative versions of clause
11.3 is used. If the architect grants extensions of time and adjusts the taking-
over date to a later date (or the adjudicator does so), and damages have been
deducted from sums due to the contractor, the employer is to repay any
excess damages so deducted for the period between the original take-over
date and the later date as adjusted. The previous edition of this contract
contained an entitlement for the contractor to have interest added to the
retention repaid. That provision has now been removed and, without such
express provision, it is not thought the contractor would have any right to
interest in these circumstances.
Grounds for extension of time
Clause 11.5 is given in alternative forms.
Alternative 1
In this form, clause 11.5 provides that an extension of time
shall be granted to the contractor only where there is 'any act, instruction,
default or omission of the Employer, his servants or his agents, or of the
Architect on his behalf, whether authorised by or in breach of this Agree-
ment'. Moreover, the contractor's entitlement to an extension of time on
these grounds is qualified: the act etc. relied on must in the reasonable
opinion of the architect prevent the taking-over of the works by the date
stated in the time schedule. Obviously this is a limiting factor since the
contractor must not only establish that there is a cause of delay, i.e. some act
etc., but also that this is causing delay in the architect's reasonable opinion.
However, the reasonableness or otherwise of the architect's opinion is open
to review on adjudication or arbitration as appropriate and, indeed, in
litigation. 'Prevented' means 'hindered or stopped'; it has no special mean-
ing in this context.
This clause also contains provisions for notices by the contractor. Imme-
diately it is reasonably apparent that the taking-over is being or is likely to
be prevented by the act etc. of the employer or his architect, the contractor
must serve written notice on the architect. The notice must specify the
particular act, instruction, default or omission relied on. As soon as possible
after that notice, the contractor must submit to the architect full and detailed
particulars of the extension of time to which he thinks he is entitled and it is
suggested that this is most usefully accomplished by reference to the time
schedule and the contractor's own programme
655
. The contractor is under a
further duty; he must keep the particulars up to date, by submitting 'such
655
See the very useful comments of the court in
John Barker Construction Ltd
v.
London Portman Hotels
Ltd
(1996) 12 Const LJ 277.
