Extension of time: It’s a dot on, not a sweep up!
When putting together an extension of time construction claim, the first place we typically go to is the variation account. With our first pass through the variation account we are almost always focusing on high value variations and variations that have been issued after the original or extended completion date. The rationale is simple; these are agreed deviations from the original contract, and we are looking to assess the impact of these on the original programme and sequencing.
Take it from me, it’s a lot easier to build your extension of time claim around agreed additional works, rather than acts of non-performance by your client or his consultants. Politically this is more palatable for all the clients’ team to accept.
But contrary to what most contractors believe this is not a knock punch, where we can argue an extension of time is due up to the date for the completed variation work, or indeed that the issue of the variation causes time to be at large and liquidated damages unenforceable!
Most contracts include a provision for the architect or contract administrator to review an extension of time request and if agreed, issue an adjustment to the original completion date. Whilst undertaking this exercise he is trying to assess the actual impact of the event on the contractors’ ability to complete the work. To be awarded an extension of time, it is always necessary to show that the event delayed the work, not in theory, but as a matter of fact actually delayed the work. The architect or contract administrator then applies the results of his assessment and issues an extension of time and sets a revised completion date that reflects the critical delay caused by the event in question.
Put simply the completion date is extended by period for a delay caused by the relevant event. These are the rules set out in most contracts, so what does it mean?
Well, if you have a variation and it takes two weeks to complete the work, and the completion of this work delayed the completion of the project i.e. you have demonstrated that it is on the critical path of the project to completion. In that case, you are entitled to a two-week extension of time and its irrelevant that the work was carried out after the original or even the revised completion date – you get two weeks “dotted on” to the previously ascertained completion date, not a “sweep up” to the date the variation work was completed.
But it’s not all bad news; post-completion variations are notoriously difficult to integrate seamlessly into the programme of work and almost always have a disruptive effect on its succeeding activities. So you may get two bites of the cherry after all!