Time
| Author | Julian Bailey |
| Pages | 959-1053 |
959
CHAPTER 11
TIME
Introduction 961
Time for performance 962
Time for commencement 962
Time for completion 964
(i) Introduction 964
(ii) Stipulated date for completion 964
(iii) Prevention of completion by the stipulated date 966
(iv) No stipulated or applicable date or time for completion 966
(v) Target or estimated date for completion 969
(vi) Work performed on a non-contractual basis 969
(vii) Condition precedent/time of the essence 969
(viii) Damages for late completion 972
Progress of the works 973
(i) e general position 973
(ii) Obligation to follow contract programme 973
(iii) Express obligation to progress the works 974
(iv) Provision of progress information 979
(v) Work methods 980
(vi) Coordination of contractors 980
(vii) Interdependent activities 981
(viii) Suspension of the works 982
Reckoning of time 983
(i) Generally 983
(ii) Days 983
(iii) Months 984
(iv) Holidays/industry shutdowns 984
e contract programme 985
(i) Generally 985
(ii) Uses of the contract programme 988
Practical completion 988
Extension of time 989
(i) Extension of time clause 989
(ii) Contractor delay 991
(iii) Owner delay 991
(iv) Neutral events causing delay 992
(v) Concurrent delay 995
(vi) Contractor’s duty to mitigate delay 999
(vii) Float 999
TIME
960
Claiming an extension of time 1000
(i) Generally 1000
(ii) Notice of delay 1001
(iii) Notice claiming an extension of time 1002
(iv) Failure to comply with notice provisions 1003
(v) Renewed extension of time application 1004
(vi) Waiver and estoppel 1004
Assessment of a claim for an extension of time 1005
(i) Generally 1005
(ii) Contract administrator’s independent power or duty to grant an
extension of time 1009
(iii) Form and status of assessment 1011
(iv) Time limits for assessing an extension of time application 1012
Proof of delay 1014
(i) Generally 1014
(ii) Techniques for analysing delay 1016
(iii) Critical path method 1017
(iv) Retrospective analysis 1019
(v) Application of the facts and common sense 1020
e nancial consequences of delay 1021
Delays for which the owner is responsible 1022
(i) Generally 1022
(ii) Measure of compensation or damages 1025
(iii) Recoverable heads of cost or loss 1027
O-site overheads and loss of prot 1030
(i) O-site overheads 1030
(ii) Loss of prot 1032
(iii) Formulae 1032
(iv) Proof 1036
Delays for which the contractor is responsible 1036
Delays caused by neutral events 1039
Global claim 1040
(i) Generally 1040
(ii) Concurrent causes of delay 1044
(iii) Total cost claim 1045
Disruption 1047
(i) Generally 1047
(ii) Global claims for disruption 1049
Acceleration 1050
(i) Introduction 1050
(ii) Instruction to accelerate 1050
(iii) Acceleration costs 1051
(iv) “Constructive acceleration” 1052
TIME
961
Introduction
11.01 e well-worn expression “time is money” is particularly apt in the context of
construction and engineering projects. Delays to the completion of a project almost
inevitably result in an increase in cost to the contractor, and the suering of some form
of loss by the owner (eg, a loss or deferment of revenue). Construction and engineering
projects can be delayed for a variety of reasons.1 Common examples include a contrac-
tor’s dilatoriness or negligence, the owner having ordered increased or varied works, or
adventitious matters such as poor weather. Contracting parties’ rights and obligations
consequent upon a delay are determined largely by the allocation of risk for delay pre-
scribed by the contract in question. e concept of “delay”, in this context, is not always
synonymous with “sloth” or “dilatoriness”. e critical matter is what the contractor has
promised to do, that is, by when did the contractor promise to complete the works, or
some part of them?2
11.02 Given the importance that time plays in construction and engineering projects,
it is usual for construction and engineering contracts to make provision for the time in
which the contractor must complete its work, and the consequences of the contractor
being in delay, or failing to complete its works in time. Even if a contract does not
make express provision for what happens in the event of delay, the common law to a
large extent lls the gap by making available the remedy of damages to a party who is
nancially disadvantaged as a consequence of delays caused by the other contracting
party’s breach of obligation.
11.03 is chapter considers primaril y the law concerning the time available or taken
for the performance by a contractor of its works under a construction contract. However,
time is, as noted elsewhere in this book, an important matter in various other ways
in relation to construction and engineering projects. For example, if the owner does
not pay the contractor within the period of time prescribed by the particular contract,
consequences may ow from this including the owner becoming required to pay interest
on the amount owed.3 A contract may stipulate that the contractor is to notify the owner
(or its agent) of a claim or an intention to make a claim within a particular period,
failing which the contractor’s claim is time barred.4 Furthermore, a claim may also be
1 For a study of the major causes of delay to projects in Singapore and other Southeast Asian countries, see Low,
Liu and Tan, “PSSCOC and Causes of Construction Delays in Singapore and Four Selected ASEAN Countries”
[2009] ICLR 334.
2 Westminster Corporation v J Jarvis & Sons Ltd [1970] 1 WLR 637 at 649, per Lord Wilberforce. Compare Nick-
lisch, “Remedies of the employer for delay in completion under the contract and at law: liquidated and unliquidated
damages: termination” in LLoyd (ed), e Liability of Contractors (Longman, 1986) pages 96–97, where it is noted
that, under German law: “Fault is a prerequisite for delay as well as for non-performance or faulty performance.
is means that without intent or negligence there is no delay in a legal sense and damages cannot be claimed.” By
contrast, under the laws of England, Australia, Hong Kong and Singapore, it is not necessary for a party claiming
damages to demonstrate the “fault” of the contractor in completing late. If the contractor has promised to complete
its works by an agreed date, the contractor is in breach of contract if it fails to complete by that date, unless it can
proer an excuse for non-performance or late performance.
3 As to interest, see paragraph 6.375.
4 See paragraph 6.326.
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