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i) Due to the above AI; the contractor has submitted EOT claim to the Architect, as a CQS advises the

contractual procedures to grant EOT to the contractor. (30 marks)

The principle of prevention is of general application in contracts. Simply put, it means, that one party cannot impose a contractual obligation on the other party, where he has impeded, or prevented, the other in the performance of that obligation. This flows from a generally stated principle that a party cannot benefit from its own wrong, or in the words of Lord Denning in Amalgamated Building Contractors Ltd v. William Holy Cros LIDC [1952]; and I quote:"the building owner cannot insist on the condition if it is his own fault that the condition has not been fulfilled." In the building industry, the "Prevention Principal" is the most effective and most used defence by the Contractor against liquidated damages. In such a case, the only remedy left for the Employer is to sue for general damages for such late completion as can be established. The liability left on the Contractor, on the other hand, is to complete within a reasonable time or face general damages for failure.

In order to claim EOT, the above A.I. (a), (b), (c) shall refer to the "Relevant Events" in Clause 23.1 which is "Causes of delay" that will entitle the Contractor to claim for EOT. All such "Relevant Events" are listed under Clause 23.8. Clause 23.8(e): Late Instruction or Information from the Architect In order to found a claim under this Clause, the Contractor must:(i) "Specifically applied in writing" to the Architect for the above A.I. (a), (b), (c); and (ii) Submit such application to the Architect in sufficient time before the commencement of construction of the affected Works, to enable the Architect to issue the necessary AI within a period which would not materially affect the progress of the affected Works, having regard to the Completion Date."

Any delay to the completion of the Works, which is caused by events from the above A.I. (a), (b), (c) entitle the Contractor to an extension of time Clause 23.8(g): Architect's Instruction The relevant Architect's Instructions stated as above is:Clause 11.2: Instructions requiring a variation The above A.I. (a), (b), (c) are instructions that vary from the contract. Hence it is entitle for EOT under this Relevant Events. a) Additional concrete slab was instructed at the stage when construction of structural works on site is still in progress. Answer:

In this circumstance by accident during construction works in progress, the Contractor has submitted extension of time claims to the Architect for approval, and the Architect shall within 6 weeks from receipt Contractors sufficient particulars based on the clause stated in the PAM Contract 2006 Clause 23.4 Certificate of Extension of Time stipulated that:

When the Contractor has submitted sufficient particulars for the Architects consideration, the Architect shall subject to Clause 23.5, 23.6 and 23.8, consider the Contractors submission and shall either reject the Contractors application or issue a Certificate of Extension of Time within six (6) Weeks from the receipt of sufficient particulars. The Architect may issue the written notice of rejection or the Certificate of Extension of Time before or after the Completion Date.

Under PAM Contract clause 23.5(b) Other consideration for extension of time stipulated that:

any other Relevant Events which in the Architects opinion will have an effect on the Contractors entitlement to an extension of time.

The Architect has the right to reject the Contractor claims of EOT or issue Certificate of Extension of Time to extend the period of construction based on his own experiences opinion on such situation in the construction project. PAM Contract clause 23.8 (g) Relevant Events stipulated that:

compliance with AI issued by the Architect under Clauses 11.2 No Variations required by Architect shall vitiate Contract;

In this situation, the Architect issue Architects instruction to Contactor for variation works of additional concrete slab when the construction of structure works is in progress, the Contractor has to comply with Architects Instruction and the Contractor has submitted EOT claims to the Architect.

Therefore, the Consultant Quantity Surveyor (hereinafter referred to as CQS) has to contractual advices to Employer and Architect to avoid breach of contract, prepared contractor document properly done to avoid any discrepancy in or divergence between any of the contract documents and any subsequent documents, and contractual advices to Architect on the reason of EOT claims submitted by the Contractor.

After receive Contractor sufficient particulars, the CQS have to attend to the construction site to do valuation on such works of Contractor claims for EOT before advice to the Architect for decision making.

Architect gives variation order to the Contractor for additional concrete slab at the stage when construction of structural works on site is still in progress. After the CQS implement on valuation works, he found that need no additional time for the Contractor to additional concrete slab on site, because of this variation works is not affect the construction period of time and also not affect others structural works on site. Furthermore, When the Architect give instruction is at the stage when the structural

works is still progress, so that, the CQS should advice to the Architect no EOT shall be granted to the Contractor in such of variation works.

On other hand, when the CQS implement the valuation works and found that additional concrete slab which will affect the construction period of time and will affect others structural works on site. For example, the additional of concrete slab which is required a beam or column to support the concrete slab, therefore the contractor have to construct a beam or column for the concrete slab for support and additional time is required for the Contractor to carry out such variation works, so that, the CQS should advice to the Architect to grant extension of time to the Contractor.

b) Additional concrete slab was instructed toward the end of the project c) Instruction was issued to demolish a reinforced concrete wall. Answer: In the usual course of events, the initiative for taking action under EOT clause will come from the contractor when he realizes that the progress of the works is delayed. The contractor is not required to give notice of a delay which will be caused by some expected future event. He has only to give notice when it becomes apparent to him that the progress of the works is delayed.

Under condition of question (iii) (b) (c), variation of works were issued by an architect to contractor which is additional concrete slab was instructed toward the end of the project; and instructed to demolish a reinforced concrete wall. The contractor may apply for an extension of time, provided always that he follows the procedure stated under Clause 23.1(a) and Clause 23.1(b).

Under Clause 23.1(a), or stage one, the Contractor is obliged 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 :-

y y y

an initial estimate of the extension of time he may require dully supported with all particulars of the cause of delay and The notice must reach the Architect within twenty eight (28) Days from the date of the AI, CAI or the commencement of the Relevant Event, whichever is the earlier. Thus, the Contractor is obliged to alert the Architect, within the stated time, any

likely delay to the completion of the Works. 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 neutralize, the delay. To ensure that the Contractor will so alert the Architect, Clause 23.1(a) also makes the giving of such written notice by the Contractor "a condition precedent" to an entitlement of extension of time. In other words, if the Contractor fails to give such a notice to the Architect, in the specified manner, he will not be entitled to any EOT. Persuaded to Clause 23.4, Certificate of EOT will be issued within 6 weeks, when Architect received sufficient particulars from Contractor. However, Architect has the right to issue written notice of rejection or the Certificate of Extension of Time before or after the Completion Date. Other than that, according to Clause 23.6, Contractor shall use his best endeavor to prevent or delay in the progress of the Works. However, if delay caused by both Employer and Contractor, then EOT will be granted to Contractor but no compensation to Contractor. So in these cases, when architect received the notice, architect normally will grant EOT to contractor in order to avoid delay works of construct additional concrete slab when it almost ends of the project. However, if the architect instructed AI to demolish a reinforced concrete wall like question (iii) (c), he have the right not grant EOT to contractor because demolish work just a little and can complete on time. As a Consulting Quantity Surveyor, he/she has the obligation to advice Contractor that the submitted notice must reach the Architect within twenty eight (28) Days from the date of the Architects Instruction, Confirmation of Architects Instruction or the commencement of the Relevant Event, whichever is the earlier.

After having given the Architect the required written notice under Clause 23.1(a), the Contractor shall send to the Architect "his final claim for extension of time" under Clause 23.1(b), "within twenty eight (28) Days of the end of the cause of delay." Consultant Quantity Surveyor shall advices Contractor that the final claim must be "duly supported with all particulars" to enable the Architect or Consulting Quantity Surveyor to assess any extension of time to be granted. As such, in addition to submitting his final claim within the stated time of twenty eight (28) Days, the Contract must also 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. Other than that, Consulting Quantity Surveyor shall remind Contractor the need for limiting the submission of "final claim" to "twenty eight (28) Days 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. "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. In short, if the claim is to be successful, it must :y y y be submitted in time; be supported by relevant information and details of the claim ; and 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.

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