Claims Under ACA 3 - Building Contract Claims - page 396

further particulars which may be necessary or may be requested from time
to time by the Architect, so as to enable the Architect fully and properly to
discharge his duties' regarding extension of time at the times specified by
the contract.
Under this version of clause 11.5 the grounds on which extension of time
can be claimed are, broadly speaking, all defaults of the employer or his
agent, the architect. Normally, failure by the architect properly to exercise
his duty to extend time will undoubtedly mean that time under the contract
will be at large; in other words, the date fixed for completion will cease to be
applicable and the contractor's obligation will then be to complete within a
reasonable time 656 . This is so under this form also, save to the extent that
clause 11.6(b) enables the architect to grant an extension at any time where
the contractor has failed to provide the necessary information. In such cases,
where no notice is given, he can delay his decision right up until his powers
come to an end with the issue of the final certificate. The architect must act if
the contractor fails to give the necessary particulars in order to preserve the
employer's right to liquidated damages and prevent time becoming at large.
This version of clause 11.5 is limited in its extent since it does not cover any
events outside the control of the employer, the architect or the contractor, and
it has been criticised as being much narrower than is felt to be reasonable.
Under it, no extensions of time are available for such things as exceptionally
adverse weather conditions, strikes and delays or unforeseeable shortages in
the availability of labour or materials, etc. These eventualities are beyond the
control of the contractor but no doubt contractors invited to tender under
ACA terms with this version of clause 11.5 in force will adjust their tender
price accordingly. Contracts, after all, are about the distribution of risk and
provided that the risk is known, it can usually be priced.
It used to be possible to contend that the clause did not cover default etc.
by anyone (other than the architect) for whom the employer is vicariously
responsible in law. However, that possible defect has now been corrected.
Alternative 2 The second version of clause 11.5 is more traditional in its
drafting. It is wider than the first alternative and is akin to the JCT provi-
sions for extension of time.
There are eight matters for which the contractor is entitled to claim an
extension of time and, as in the case of alternative 1, the architect is expected
to adjudicate upon some matters which may be his own fault. The eight
causes or matters giving rise to an extension of time are:
(1) Force majeure .
(2) The list of events set out in the insurance clause (clause 6.4), that is,
those contingencies 'covered by the Contractor's policy' referred to
(or by the employer's policy, as appropriate).
(3) War, hostilities (whether war be declared or not), invasion, act of
foreign enemies, rebellion, revolution, insurrection, military or
usurped power, civil war, riot, commotion or disorder.
656 Percy Bilton Ltd v. Greater London Council (1982) 20 BLR 1.