Claims Management

Construction Law, Contract Administration, Project Management

The Suspension That Never Ends: The 84-Day Clock and the Choice at the End of It

The suspension that is really a funding problem

Let me start with the misuse, because it is common enough to be worth naming.

An Employer runs into a funding difficulty. The money is delayed, or the approval for the next tranche has not come through, or a decision above the project’s pay grade has quietly been deferred. Rather than say this, the project instructs a suspension. On paper it is an ordinary exercise of a contractual power. In substance it is an Employer using a mechanism designed for technical and safety circumstances to manage its own cash flow.

I understand why it happens. A suspension instruction is administratively easy and it buys time without anyone having to admit anything. But it is expensive in ways that are not visible on the day it is issued. The Contractor’s entitlement to time and Cost begins accruing immediately. Idle plant, retained staff, standing subcontractors and demobilisation and remobilisation costs accumulate against an Employer that has, by its own instruction, accepted responsibility for them. And a suspension issued for reasons the Employer would prefer not to state tends to be issued without any assessment of how long it will last, which is how the 84-day problem arrives.

The related pathology is the suspension nobody instructs. Access is not given, information does not arrive, the site simply stops. There is no instruction, so the suspension machinery never engages and the Contractor has to claim under other heads with weaker mechanics. If you are a Contractor sitting on a de facto stoppage, one of the more useful things you can do is write and ask whether an instruction under the suspension clause is intended. The answer, either way, improves your position.

The 84-day election

This is the part of the clause that most project teams have never had to use and should nonetheless understand, because the options narrow sharply once it engages.

Where a suspension has continued for more than 84 days, the Contractor may request the Engineer’s permission to proceed. If permission does not come within 28 days of that request, the Contractor has a choice that depends on what was suspended.

If the suspension affects only part of the Works, the Contractor may treat that part as an omission under the variation machinery. If it affects the whole of the Works, the Contractor may give notice of termination under the Contractor’s termination provisions.

Both of those are serious steps with permanent consequences, and there are two traps worth flagging.

The first is the partial suspension route. Treating suspended work as an omission removes it from the contract, and an omission cannot be used to take work away from one contractor and give it to another. If the Employer’s intention is to have the suspended work performed by somebody else once funding arrives, the parties are heading for an argument about whether the omission was legitimate at all. Contractors should think carefully before electing this route on work they actually want to perform, because the entitlement that follows is the value of the omitted work, not the profit they hoped to earn on it.

The second is the timing itself. The 84 days run from the suspension, but on projects where suspension is instructed in stages, extended, partially lifted and reinstated, working out when the clock started is not always simple. I have seen more than one Contractor discover that the election it thought it was preserving had become impossible to evidence because the suspension history was never properly recorded. Diarise the date on the day the instruction arrives.

Partial suspension and the problem of the moving front

Most writing on this subject assumes a suspension of the whole works. In practice partial suspension is far more common and considerably harder to administer.

A single area is suspended pending a design resolution, or a utility diversion, or a permit. The rest of the site continues. On paper the Contractor is entitled to time and Cost only in respect of the affected part, and the Employer’s exposure looks modest.

The reality is messier, because construction sequences are not modular. Suspending one area displaces the crews that were meant to work there, disturbs the planned flow of following trades, and forces resequencing across areas that were never suspended at all. The resulting loss looks like disruption rather than standing time, and it is correspondingly harder to prove and easier to resist.

Two practical consequences follow. Contractors should resist the instinct to treat a partial suspension as a minor event with a small claim attached; the knock-on effects need to be identified and recorded at the time, not inferred from a productivity shortfall eighteen months later. And Employers should understand that a partial suspension is not a cheap way of deferring a decision. It is frequently the most expensive form of delay per week of works actually stopped, precisely because the consequences spread beyond the suspended area.

Resumption, and the deterioration nobody costed

The end of a suspension is treated as an administrative formality far more often than it should be.

Both editions provide for a joint examination on resumption, and give the Contractor entitlement in respect of deterioration, defect or loss occurring during the suspension period. On a long suspension in a demanding climate this is not a small item. Concrete cures unattended. Steel corrodes. Temporary works degrade. Materials stored on site are stolen or spoil. Formwork warps.

The practical difficulty is proof. A joint examination that both parties actually attend, with a photographic record and an agreed schedule of condition, converts a contentious claim into an administrative one. A resumption where the Contractor simply restarts and raises the deterioration six months later will be met, entirely predictably, with the argument that the damage happened afterwards and through poor care.

My standard advice to both sides is the same and it is unusually cheap: do the joint examination properly, produce a signed record, and disagree in writing about the items you cannot agree. Twenty pages of agreed condition at resumption saves a great deal of argument later.

What each party should be doing

For an Employer, the discipline is mostly about honesty at the point of instruction. If you are suspending, know why, form a view on duration, and write both down internally. If what you actually have is a funding problem, recognise that suspension does not solve it — it converts a payment delay into an accruing entitlement plus a delay to the asset, which is a worse position, not a better one. And watch the 84-day date at least as carefully as the Contractor does, because the elections that become available at the end of it are not in your gift.

For a Contractor, the discipline is record-keeping from day one of the suspension rather than day one of the claim. Standing resources should be logged daily, not reconstructed. Mitigation should be visible: plant released, staff redeployed, subcontractors stood down where it was reasonable to do so. A suspension claim built on daily records with visible mitigation is one of the more straightforward claims to make good. One built on an invoice total and an assertion is one of the hardest.

And on both sides, remember that a suspension is one of the very few events in a construction contract where liability is essentially established by the instruction itself. Everything that follows is about quantum and duration. That is an unusual luxury in this field, and it is worth not wasting it through poor administration.