PROFESSIONAL PRACTICE TALK SERIES

PREPARING EOT
APPLICATION, ANALYZING
AND CERTIFICATION

- THINGS TO CONSIDER

AR RIDHA RAZAK
ONUS ON CONTRACTOR TO APPLY FOR EOT

Application of Extension of time (EOT) is a condition

under the contract that entitles the contractor to
exercise his rights to an additional time under the
contract.

Without contractor’s application, it is very difficult for

contract administrator to assess contractors EOT
rights.
 ESSENTIAL ELEMENT OF EOT CLAIM
Elements
1 Identification of the delay
event
2 Liability for the Event
3 Contractual Entitlement
4 Contractual Compliance
5 Cause and Effect
6 Concurrency
7 Float
Explaination
Identify the event; the circumstance that gives rise to change
causing delay
Does the responsibility rest with the Employer; neutral events
such as force majeure or exceptionally inclement weather or as
a consequence of matters within the contractors control.
What guidance does the contract give in the event of a
particular event that impacts on the progress of the work or
completion being delayed
What time frames are provided in the contract for the
contractor and the Employer to comply with in a claim
situation.
Factual Statement Covering; i) Detail of planned work affected
ii) Reference to the planned sequence iii) Duration iv)
Methodology v) The status of work in relation to that planned
activity at the time of the event vi) The description of the
change to that plan as a consequence of the event
This is linked with the liability for each event noted above.
Consideration need to be given to who owns the float in the
program and the effect this has on the received completion
date.
COMMON ISSUES IN APPLICATION OF EOT BY CONTRACTOR

There are many common problems that delay the process of EOT
application for the contractor. The most common problems are as
follows:

1. Contractor does not know how to prepare EOT application.

2. Contractor does not know their rights under the contract for EOT in
relation to the relevant events.
3. Inadequate information for Contract administrator to make decision
4. Contractor does not attempt to justify their EOT claim and expect
the S.O to justify for them.
5. Compound application and does not consider overlapping events
HOW TO APPLY EOT?
 HOW TO APPLY

An EOT claim is initiated by the Contractor.

This is because, contractually, the Contractor is

responsible to programme, execute and complete the
Works by the Completion Date.

As such, the Contractor should, or ought to know,

when the completion of the Works will be delayed
 Procedure for appying EOT
When Contractor is of the opinion that the
•completion of the Works is or will be delayed beyond the
Completion Date by any of the Relevant Events stated in Clause 23.8,
•he may apply for an extension of time provided always that

Contractor give notice to the Architect If Don’t give notice

1. intention to claim for EOT , initial estimate of
Waive his EOT rights
EOT, all particulars of the cause of delay
2. within 28 days from the date of the AI, CA! or
the commencement of the Relevant Event,
whichever is earlier.
CONTRACTOR RESUBMIT

Extend notice to NSC if EOT ARCHITECT RECEIVE NOTICE

due to delay by NSC AND ASSESS EOT CLAIM

Sufficient information Information not sufficient

Arch Certify EOT within 6 weeks

from receipt of sufficient notice Arch Reject Arch Request more info within 28
EOT claim days of contractor notice
 CONDITION PRECEDENT TO EOT ENTITLEMENT

Under PAM Contract 2006, Contractor is to give a "written notice" to the

Architect informing him of the Contractor's "intention to claim such
extension of time". Such written notice must contain 3 elements :-

an initial estimate of the extension of time he may require" duly

supported
with all particulars of the cause of delay" and
notice must reach the Architect within a stipulated time from the date of
the AI, CAI or the commencement of the Relevant Event, whichever is
the earlier

Thus, the Contractor is to alert the Architect, within the stated time, any
likely delay to the completion of the Works.
 WHY NEED NOTICE?

The objective of this notice is to

Give the Architect the earliest possible opportunity to discuss with the
Employer, on any measures to be adopted to mitigate, or neutralise, the
delay.

To ensure that the Contractor will so alert the Architect

The giving of such written notice by the Contractor "a condition

precedent" to an entitlement of extension of time.

If the Contractor fails to give such a notice to the Architect, in the

specified manner, he will not be entitled to any EOT. This is consistent
with Hudsons 11th Edition paragraph 4.123
SAMPLE NOTIFICATION LETTER
PREPERATION OF EOT
APPLICATION
 Timely Submission of Full Particulars

Timely Submission of Full Particulars

After having given the Architect the required written

notice the Contractor shall send to the Architect "his
final claim for extension of time within stipulated time
of the end of the cause of delay.
 REASON DELAY IN SUBMITTING EOT CLAIM BY MC

SURVEY RESEARCH
IACSIT International Journal
of Engineering and
Technology, Vol. 4, No. 4,
August 2012
 PROCEDURE FOR FINAL CLAIM

Such final claim must be "duly supported with all particulars" to enable
the Architect to assess any extension of time to be granted through the
following procedures:

submitting of "final claim" within the stated time

Contract must support his claim with "all particulars", necessary to

demonstrate how the Relevant Event cited by him has delayed, or will
delay, the completion of the Works by the length of extension of time
claimed by him.

The need for limiting the submission of "final claim" to stipulated time of
the end of the cause of delay is to enable the Architect to assess the
claim, before the facts surrounding the claim become blurred by the
passage of time.
 FAILURE TO SUBMIT

"If the Contractor fails to submit such particulars within the

stated time (or within such longer period as may be agreed in
writing by the Architect), it shall be deemed that the Contractor
has assessed that such Relevant Event will not delay the
completion of the Works beyond the Completion Date", and
that he no longer requires the extension of time he notified the
Architect earlier.
 RECOMMENDED SUBMISSION ARRANGEMENT

Application documents can be arrange in following

order

1. Contractor application letter

2. Contractor EOT application report
3. Prior notice claim
4. EOT application checklist for each relevant event
5. Evidence for each relevant event
1. SAMPLE EOT APPLICATION

Basic information in Application

a) EOT Application no
b) A Reason/description of the cause of
delay
c) The contractual provision which is
being relied upon
d) Duration wishing to apply
e) The date when the delay
commenced and the period of delay
(giving details of intermittent effects if
appropriate).
f) The date of notice of delay,
specifying the reference of the
relevant document
g) A summary of records and particulars
relied upon
2. CONTRACTOR EOT APPLICATION REPORT

Information in report
a) A description of the cause of delay
b) The contractual provision which is
being relied upon
c) The date when the delay
commenced and the period of delay
(giving details of intermittent effects if
appropriate).
d) The date of notice of delay,
specifying the reference of the
relevant document
e) A summary of records and particulars
relied upon
f) A description of the event and effects
on progress
2. REPORT FORMAT

Information in report
g) A diagrammatic illustration showing
the status of the programme, progress
and current completion date prior to the
commencement of the delay
3. PRIOR NOTICE CLAIM
4. EOT APPLICATION CHECKLIST FOR EACH RELEVANT EVENT
COMMON REASON FOR EOT CLAIM IN MALAYSIA
SURVEY RESEARCH
IACSIT International Journal of Engineering and Technology, Vol. 4, No. 4, August 2012
 5. COMPILING YOUR EOT EVIDENCE

Relevant event Evidence

Force Majeure Notification to claim
Brief report of application
Evidence
Photos with dates
Site diaries
Timeline duration chart
Exceptionally inclement weather Notification to claim
Brief report of application
Evidence
10 years berau of meteorological report
Site diaries
Summary statistics of the 2 document above
Timeline duration chart

Loss and/or damage to person and properties 1. Notification to claim

2. Brief report of application
Evidence
1. Photos with dates
2. Site diaries
3. Timeline duration chart

Civil commotion, strike or lockout 1. Notification to claim

2. Brief report of application
Evidence
1. Photos with dates
2. Site diaries
3. Timeline duration chart
 5. COMPILING YOUR EOT EVIDENCE

Relevant event Evidence

Late Architect/ Engineers Instruction 1. Notification to claim
2. Brief report of application
Evidence
1. Proof of work program vs Late AI
2. Photos with dates
3. Site diaries
4. Timeline duration chart
Delay by the Employer in giving possession of the Site Notification to claim
Brief report of application (justify reason and clause)
Evidence
Copy of award letter
Copy of minutes for site possession

Compliance with Architect Instruction issued by the Architect for : Notification to claim
1. Discrepancies of contract document Brief report of application (justify reason and clause)
2. Variations Evidence
3. Suspension and postponing work Copy of AI
Photos with dates
Site diaries
Timeline duration chart
Delay on the part of Nominated Sub-Contractors 1. Notification to claim
2. Brief report of application (justify reason and clause)
Evidence
1. Copy of program highlighted on NSC works
2. Photos with dates
3. Site diaries
4. Timeline duration chart
 5. COMPILING YOUR EOT EVIDENCE

Relevant event Evidence

Re-nomination of Nominated Sub-Contractors 1. Notification to claim
2. Brief report of application (justify reason and clause)
Evidence
1. Timeline duration chart

Delay on the part of craftsmen, tradesmen or other contractors 1. Notification to claim

2. Brief report of application (justify reason and clause)
employed or engaged by the Employer
Evidence
1. Copy of program highlighted on Others works
2. Photos with dates
3. Site diaries
4. Timeline duration chart
Delay/failure to supply materials and goods which the Employer had Notification to claim
Brief report of application (justify reason and clause)
agreed to supply for the Works;
Evidence
Copy of program highlighted for the parts
Photos with dates of parts that cannot be completed
Site diaries
Proof material arrive
Minutes
Timeline duration chart

The opening up for inspection of any work covered up, testing any Notification to claim
Brief report of application (justify reason and clause)
materials, goods or executed work Evidence
Photos with dates
Site diaries
Timeline duration chart
 5. COMPILING YOUR EOT EVIDENCE

Relevant event Evidence

Any act of prevention or breach of contract by the Employer; Notification to claim
Brief report of application (justify reason and clause)
Evidence
Photos with dates if any
Site diaries
Timeline duration chart
War damage - Clause 32.1; Notification to claim
Brief report of application (justify reason and clause)
Evidence
Photos with dates
Site diaries
Timeline duration chart
Compliance with AI issued in connection with the discovery of Notification to claim
antiquities Brief report of application (justify reason and clause)
Evidence
Photos with dates
Site diaries
Timeline duration chart

Compliance with any changes to any law, regulations, by-law or 1. Notification to claim
2. Brief report of application (justify reason and clause)
terms and conditions of any Appropriate Authority and Service
Evidence
Provider; 1. Copy of authority letter
2. Architects/Engineers instruction
3. Photos with dates
4. Site diaries
5. Timeline duration chart
 5. COMPILING YOUR EOT EVIDENCE

Relevant event Evidence

Delay caused by any Appropriate Authority and Service Provider Notification to claim
Brief report of application (justify reason and clause)
Evidence
Copy of authority letter
Architects/Engineers instruction
Photos with dates
Site diaries
Timeline duration chart
Appointment of a replacement Person for PSP/SP Notification to claim
Brief report of application (justify reason and clause)
Evidence
SO to assess

Compliance with AI issued in connection with disputes with Notification to claim

Brief report of application (justify reason and clause)
neighbouring property owners
Evidence
Architect Instruction
Photos with dates
Site diaries
Timeline duration chart

Delay as a result of the execution of work for which a Provisional Notification to claim
Brief report of application (justify reason and clause)
Quantity is included in the Contract Bills which in the opinion of the
Evidence
Architect is not a reasonably accurate forecast of the quantity of Architects/Engineers instruction
work required; Photos with dates
Site diaries
Timeline duration chart
 5. COMPILING YOUR EOT EVIDENCE

Relevant event Evidence

Failure of the Employer to give in due time entry to or exit from the Notification to claim
Brief report of application (justify reason and clause)
Site
Evidence
Award letter
Site possession minutes

Suspension by the Contractor for non payment or termination of 1. Notification to claim

2. Brief report of application(justify reason and clause)
PSP/SP
Evidence
1. Architects Payment cert.
2. Contractors letter to remind for payment to architect
3. Notice of suspension
Suspension of the whole or part of the Works by order of an 1. Notification to claim
2. Brief report of application(justify reason and clause)
Appropriate Authority due to negligence or omission on the parts of
Evidence
contractor or NSC 1. Letter from authority
2. Timeline duration chart
ANALYZING EOT
 DELAY ANALYSIS

Methods of Delay Analysis Used to Establish the Contractors

Entitlement to an Extension of Time

Delays not attributable to the Contractors actions in a construction

project can result a number of potential problems such as
1. late completion,
2. lost productivity,
3. acceleration cost,
4. increased costs, and
5. contract even contract termination.

The Contractor needs to realise that the Employer is responsible under

the Contract for these delays and establish his entitlement to an
extension to the time for completion as a result of these events in order
to recover time and cost under the provisions of the Contract.
 DELAY ANALYSIS
There are 4 main methods that can be adopted by the Contractor and which in the correct
circumstances accepted as accepted methods of establish the delays resulting from a relevant
delay event

Delay Analysis Methodology

1 As-planned vs. As-built
(kaedah Program Rancang lwn
bina)
2 Impacted as- planned method
(kaedah analisa impak
kemungkinan lewat lwn
rancang= kelewatan)
3 As-Planned but for Method
( kaedah program rancang
dipinda megikut kedua kedua
kelewatan kontraktor dan
pemaju =siapa penyebab
utama)
4 Collapsed as Built Method
(kaedah penolakan kelewatan
dari program dibina = siapa
penyebab utama)
compares the activities of the original CPM baseline schedule
vs as-built schedule for detailed assessment of the delays that
occurred.
measures the effect for as planned schedule from each delay
event. Therefore the critical path is important for this method.
Amount of delay = Completion dates after the impacts –
Completion date before the impacts
This method is analysed according to contractor’s point of
view and owner’s point of view
The as-planned schedule is adjusted by adding the contractor
or owner-caused delays (nonexcusable). Then the results are
compared with the actual completion date and the amount of
delay which the parties is responsible is calculated.
involves removing the delays of each party from the as-built
schedule so that the resulting schedule will give the
completion date of the project but for the delays of the other
party
 AS PLANNED VS ASBUILT
Delay Analysis Methodology
1 As-planned vs. As-built compares the activities of the original CPM baseline schedule
(kaedah Program Rancang lwn vs as-built schedule for detailed assessment of the delays that
bina) occurred.
 IMPACTED AS PLANNED
Delay Analysis Methodology
2 Impacted as- planned method measures the effect for as planned schedule from each delay
(kaedah analisa impak event. Therefore the critical path is important for this method.
kemungkinan lewat lwn Amount of delay = Completion dates after the impacts –
rancang= kelewatan) Completion date before the impacts

PLANNED

IMPACT
 COLLAPSE ASBULT METHOD
Delay Analysis Methodology
4 Collapsed as Built Method involves removing the delays of each party from the as-built
(kaedah penolakan kelewatan schedule so that the resulting schedule will give the
dari program dibina = siapa completion date of the project but for the delays of the other
penyebab utama) party

ASBUILT

Identify
delay
event

Removal of
delay event

Delay Analysis
1 As-planned vs. As-built
(kaedah Program Rancang
lwn bina)
2 Impacted as- planned
method
(kaedah analisa impak
kemungkinan lewat lwn
rancang= kelewatan)
3 As-Planned but for Method
( kaedah program rancang
dipinda megikut kedua kedua
kelewatan kontraktor dan
pemaju =siapa penyebab
utama)
4 Collapsed as Built Method
(kaedah penolakan kelewatan
dari program dibina = siapa
penyebab utama)
DELAY ANALYSIS
Pros Cons
Economical and simple It does not scrutinize delay types
to use and this makes it easy for it to be
manipulated and distorted to reflect
either the position of the claimant
or the defendant
Useful to evaluate the Use fixed as-planned schedule to
individual impact of analyze delays out of context and
each delay activity time but the original baseline
during and after the schedule may not be a realistic
project on the model on which to base the whole
completion date. analysis.
It can be performed Owner’s point of view and
quickly because there is contractor’s point of view may yield
no need to consider different results resulting in disputes
actual progress of the
work.
Consider the impact of The use of as-built information to
delays on the critical prepare the as-built schedule is
path. subjective and highly amenable to
manipulation.
ISSUANCE OF EOT
EOT CERTIFICATE SAMPLE
CONCLUSION
 CONCLUSION

In short, if the claim is to be successful, it must :-

1. be submitted in time to prevent CNC and LAD/LD

2. be supported by relevant information and details of the
claim ;
3. demonstrate that the completion of the whole of the Works
(and not any individual item of the Works) has been
delayed by one or more of the specified Relevant Events.
PROFESSIONAL PRACTICE TALK SERIES

PREPARING EOT
APPLICATION, ANALYZING
AND CERTIFICATION

- THINGS TO CONSIDER

AR RIDHA RAZAK