Claims Under ACA 3 - Building Contract Claims - page 399

for an extension. In this case, the architect may exercise his duties as regards
extending the contract period at any time, i.e. so long as he is not functus
officio , which is the case after the issue of the final certificate under the
contract.
The architect's duty is to grant to the contractor 'such extension of
time . . . as he then estimates to be fair and reasonable'. The first proviso is
of great importance. Where there is a sectional completion, an extension of
time for the taking-over of one section does not necessarily entitle the
contractor to an extension for the taking over of another section or of the
works as a whole.
There is a common misconception that an extension of time for one
section has a knock-on effect on other sections. That is particularly the
case where the employer has unwisely specified specific dates for posses-
sion of subsequent sections which are actually dependent on the first
section. In order to achieve a practical outcome, dependent sections should
have their dates for possession expressed as related to the relevant take-over
dates.
There is a second proviso to the effect that the contractor cannot rely on
his own breach to claim an extension of time. That would be the case in any
event under the general law, but it is useful to have the position set out
clearly to put the matter beyond doubt.
The contractor is not entitled to any extension of time for delays caused
by sub-contractors or suppliers (named or domestic) even to the limited
extent laid down by the House of Lords in Westminster Corporation v. J. Jarvis
& Sons Ltd 661 , as regards nominated sub-contractors under the JCT 63
form. It is doubtful whether the words 'his or their respective servants or
agents' would extend to cover sub-sub-contractors and a very limited
meaning must be given to these words 662 . However, delays caused by
sub-sub-contractors might equally well not rank for an extension of time
unless they could be proved to fall within the meaning of the term force
majeure (clause 11.5(a)), which is unlikely, or alternatively be shown to fall
within clause 11.5(e).
The final sentence of clause 11.6 establishes that the architect is entitled to
take into account any omission instructions which he has issued. An omis-
sion instruction may, of course, and usually will if issued early enough,
effect a saving of time; and he can do this 'at any time before the Taking-
Over of any Section or of the Works'. It is the effect on time of the omission
instruction that is important.
Clause 11.7 - with the side-note 'Review of extensions of time granted' -
imposes on the architect a mandatory duty to 'confirm the dates for the
Taking-Over of the Works or any Section previously stated, adjusted or
fixed . . . '. He must exercise this duty 'within a reasonable time after the
taking over of the Works' as a whole; what is a reasonable time is a question
of fact, but clearly the power must be exercised before the architect is functus
661 (1970) 7 BLR 64.
662 City of Manchester v. Fram Gerrard Ltd (1974) 6 BLR 70.