Extension of time claims

Extension of time claims
by Jeffrey Badman
In my experience, extension of time claims are unsuccessful because the contractor fails to adequately demonstrate its case through its submission of detailed particulars.
When drafting an extension of time claim, in my view, there are eight essential elements that must be addressed:
The event
Identify the event: the circumstance which gives rise to change causing delay.
Liability for the event
Once an event has been identified the next step is to determine liability for the event.
If responsibility rests with the employer or it is a neutral event, such as force majeure or exceptionally adverse climatic conditions, the contractor may be entitled to an extension of time. However, this is dependent upon the terms and conditions of the particular contract. In circumstances where the contractor is responsible for the event then the consequences remain with the contractor.
Contractual entitlement
Typically, construction contracts contain provisions entitling the contractor to an extension of time on the occurrence of a particular event provided the progress of the works or time for completion is delayed as a consequence.
For example FIDIC 1987 provides for an entitlement for extension of time in the event of: late drawings (Clause 6.4); adverse physical obstructions or conditions (Clause 12.2); discovery of fossils or antiquities (Clause 27.1); additional tests not provided for (Clause 36.5) suspension of the works (Clause 40.2); failure to give possession of site (Clause 42.2); additional or extra work (Clause 44.1(a)); exceptionally adverse climatic conditions (Clause 44.1(c)), any delay, impediment or prevention by the employer (Clause 44.1(d)); any special circumstances, other than through the default of the contractor (Clause 44.1(e)); and, contractor’s suspension of the works (Clause 69.4).
Contractual compliance
Generally within an extension of time clause, the contractor will be obligated to submit notice(s) and detailed particulars within a specified time frame.
For example, Clause 44.2 of FIDIC87 provides: “Provided that the engineer is not bound to make any determination unless the contractor has (a) within 28 days after such an event has first arisen, notified the engineer with a copy to the employer, and (b) within 28 days, or such other reasonable time as may be agreed by the engineer, after such notification submitted to the engineer detailed particulars of any extension of time to which he may consider himself entitled in order that such submission may be investigated at the time.”
Occasionally the submission of notice and/or detailed particulars will be expressed to be a condition precedent. The contractor’s failure to comply waives its entitlement to claim an extension of time and owner’s liability ceases. For this reason it is important to take cognisance and comply with the notice and detailed particular provisions expressed in the contract. Familiarity with the contract from the start of the project at all levels is therefore critical.
In addition, further submissions may be required for particular events, for instance: Clause 6.3 of FIDIC 87 (disruption of progress) requires the contractor to “…. give notice to the engineer, with a copy to the employer, whenever planning or execution of the works is likely to be delayed or disrupted unless any further drawing or instruction is issued by the engineer within a reasonable time. The notice shall include details of the drawing or instruction required and of why and by when it is required and of any delay or disruption likely to be suffered if it is late.”
Cause and effect
A common mistake made by many contractors when attempting to demonstrate the cause and effect of an event is that they merely list in chronological order the pertinent exchanges of correspondence between the parties. From my experience this is usually insufficient to satisfy the burden of proof. To demonstrate cause and effect, a story should be prepared based on the facts describing the effect(s) of the event upon the works. This should include details of the planned works affected, referring to the planned sequence, durations, and methodology; the status of the works in relation to that planned at the time of the event; and, description of the changes to that plan as a consequence of the event.
Delay analysis
Conduct a delay analysis to demonstrate the effect of the event on the contractor’s programme.
There are a number of internationally recognised delay analysis methods. Ultimately, the choice of delay analysis methodology will be dependent upon such matters as level of records available; the robustness of the baseline programme and any updates; time available; degree of accuracy; and, level of proof required.
Statement of claim
Every extension of time claim must contain a succinct statement of what the contractor is claiming.
Extract and provide documentary evidence (letters, method statements, instructions, progress reports and photos, minutes of meetings, programmes and schedules), statements of fact and expert witness statements (if required) in support of the assertions made within the claim submission.
Adopting these eight elements as a check list will give a good starting point for drafting any extension of time claim, in spite of each construction project being unique.
Construction Week

  1. please if we have 3 month delay damages how make the extension of time claim?
    my project 2,500,000,000.00B OH&Profit 20%

    how i do the claim for ext.of time


  2. plaeas what the best formula for the extension of time claim or how I calculate please can any one provide me the best way to EOT. claim

    Kind Regards

    1. Dear Atef,
      There are many formulas for that to deal with different things. Read more about EOT claims and the use of Hudson formula in CMguide search engine to have a good clue on what should be done.

  3. What cost can be claimed if EOT granted due to additional works were given to the contractor.Would I be able to claim for head office overhead and loss of profit.
    Many thanks

  4. Dear Samer,

    Can you please advise on the following:

    In a infrastructure contract, there is considerable delay from both sides and the project completion dates has extended. THe Contractor’s EOT claim is more than the Employer’s delay, hence he is eligible for a valid EOT.

    For the Prolongation cost, the Contractor is claiming for rentals of prelims such as engineer/employer’s facilities, equipments etc.(fixed/establishment cost in the BOQ). Can the Contractor charge for rentals for the fixed items paid in the BOQ. The BOQ is based on CESMM3.

    Appreciate your advise.
    Thanks and Regards,

  5. Thomas Varghese

    I would be really grateful to you if you can mail me a copy.

    Thomas Varghese

  6. hi,

    i’m working in industrial project of Québec. i’m looking for a refrence via which i can calculate the time claim for our project. when i was workin in other country the governement distribute a guide for calulating it bu here i do not know real where refering.
    can you help me.


  7. could any one answer me pls, I forgot to mention that the contractor received the suspension letter the moment he was arranging for factory inspection. still after suspension the manufacturer continued in production since the material were already in the production line.

  8. I have done mutual termination for consultant contract for my client and we do final settlement claim. While we doing this termination the contract delayed from original completion date, are we still have to grand EOT although is mutual termination.I believe if mutual termination is not required.

    Any suggestion / comments please.

  9. Thanks for shearing this needful information
    I am going to submit a claim for EOT
    we got delay in our project due to 50% additional variation works, and late issuance of drawing by the Engineer.
    would you please help me in the EOT claim calculation, in my claim I am going to include the following
    1. Preliminaries Cost based on BOQ
    2. Depreciation cost
    3. Head office overhead
    4. Loss of interest charges

  10. Found this info very useful,
    I am going to be claiming for an EoT due to waether conditions on the operations phase of a DBO contract- Fidic 1995 Orange book.
    Is there any examples of claim correspondance on this site please,
    thanks, Cormac

  11. This is a wonderful article, I like it much.

    And this is a useful reference for all parties involved
    in construction activities.

  12. Hi All

    Does bankruptcy of subcontractor / supplier form ground for extension of time under FIDIC 99

    Appreciate your input

    Nael Al Dari

    1. No it does not. The contractor is fully responsible for all his subcontractors and suppliers. He should vet the finnacial standing and capabilities of his domestic vendors to avoid such defaults.

    1. yes, this subject of EOT is vitally important to most contractors specially since the downfall of construction business that gave rise to so many delays either from employer or Engineer.
      Therefore,contracors faced that fact that since “time is money”they need to have full congnisance to:

      * Methods of calcuating EOT?

      So Kindly,send me via email some materials that help me do that. Thanks and regards.

    2. Dear Romany Lotfy,

      Will you please send me the books what you have regarding the EOT

      Thanks & Regards

    3. I have a case here were the contractor is claiming a fainancial compensaion due to termniation of a 24 months ; Supply & Installation contract. the termination was after almost 6 months of contract effective date.
      The contractor has included the followings within his claim:
      1- bank charges for tender secruity and PBG and advance BG.
      2- insurance policies fees.
      3- overhead direct/indirect manpower expenses
      4- claim for materials (ready/under manufacturing/or still raw material) & material storage fees in manufacturer yards.
      My Q is what he is entitled for exactly??
      Thanks & Regards

    4. Dear Eng. Romany,
      I am grateful, if you would kindly arrange to send me those books at the earliest.

      Thank you.

      Eng. E J Basil Jayasiri Perera

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