Ask the Expert is an article series where our consultants provide insight into their industry expertise.
Gary brings more than 15 years of experience specialising in forensic planning and delay analysis. He is regularly engaged as an independent expert in an advisory role, assisting clients in the production and defence of extension of time (EOT) claims.
Why is understanding multiple forms of contract so important when understanding EOT delays on a construction project?
An extension of time (EOT) is a contractual provision that allows for the contractual completion date to be extended when the progress of the works has been delayed by an excusable delaying event. The benefit to the Contractor of an EOT is to relieve the Contractor of liability for damages for delay prior to the contract completion date and for the original completion date to be reset. The benefit of an EOT for the Employer is that it protects their right to levy liquidated damages by being able to adjust the contract completion date. The risk of not having an EOT provision could mean the programme would be ‘at-large’ with no enforceable date for completion, allowing the Contractor to complete the project in a ‘reasonable time’.
Differing forms of contract e.g. FIDIC, JCT, ICHEME, NEC and bespoke contracts, will have subtly different contractual obligations for both the Contractor and the Employer, with respect to specified notification requirements and time limits, contract particulars, the definition of excusable delay events, the level of substantiation (information to be provided to support an EOT claim) and the EOT assessment process.
What is the one piece of advice you consistently find yourself telling clients?
I always recommend agreeing a Baseline programme and “Records, Records, Records”; that applies to both Contractor and Employer.
What is something that could be changed in the construction industry to reduce the amount of delay claims submitted?
A greater take up in technology for the planning, control and management of projects. Technology such as 4D planning, the intelligent combination of a 3D BIM model with the dimension of time, allows project managers and stakeholders to visualise their project programme in a three-dimensional space. Additionally, 4K video and photography to help monitor and make available the construction progress of a project, essential to keep contractor’s, employers, stakeholders and customers updated of the status of the project.