Claim

Construction Contract
Claims
Reg Thomas
BSc (Hons), FCIOB, ACIArb, MlMgt
Director: James R. Knowles (Hong Kong) Limited, James R. Knowles
(Malaysia) Sdn. Bhd, James R. Knowles (Thailand) Limited and
James R. Knowles (Singapore) Pty Limited
Second Edition
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O Reg Thomas 1993,2001
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To m y wife Joan
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Contents
Foreword to the First Edition xii

Foreword to the Second Edition xiv
Preface to the First Edition xvi
Preface to the Second Edition xviii
Acknowledgements to the First Edition xx
Acknowledgements to the Second Edition xxi
1 Brief History of Construction Contracts and Case Law

1.1 Introduction
Common law jurisdictions
Civil law jurisdictions
Local law
Combinations of various laws and legal systems
The law of the contract and the procedural law
1.2 Bills of quantities
1.3 Variations
1.4 Extensions of time and liquidated damages: penalties
1.5 Claims for additional payment: damages
1.6 Rolled-up claims
1.7 Notice
1.8 Interference by the employer
1.9 Claims against consultants
1.10 The future
2 Choice of Contracts
2.1 The first steps
2.2 Clients' objectives
2.3 Contracting methods
2.4 Standard forms of contract
2.5 The Joint Contracts Tribunal standard forms of contract
The Minor Works Form, MW80 (MW98)
The Intermediate Form of Building Contract, IFC84
(IFC98)
The Standard Form of Building Contract, JCT80
(JCT98)
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viii Contents
The Standard Form of Contract with Approximate

Quantities: 1998
The Prime Cost Contract, PCC98
The Standard Form of Management Contract 1998
The Standard Form of Building Contract with
Contractor's Design, CD98
2.6 Other forms of contract
FIDIC Contracts
The New Engineering Contract (NEC)
Build, Operate and Transfer Contracts (BOT)
2.7 Special conditions and contract documents
3 Tender and Acceptance 62

3.1 Selection of tendering contractors: pre-qualification 62
3.2 Time allowed for tendering 64
3.3 Exploitation of poor tender documents by contractors 66
3.4 Preparing the estimate: adjudication: the tender 68
3.5 Qualified tenders 69
3.6 Tender programme 71
3.7 Evaluation criteria 72
3.8 Rejection: acceptance: letters of intent 73
4 Monitoring Delay and Disruption Claims: Prevention

4.1 Contracts administration
4.2 Possession of site: commencement
4.3 Pre-commencement meeting
4.4 Regular progress meetings
4.5 Instructions and drawing issues
4.6 Site instructions: verbal instructions
4.7 Form of instructions
4.8 Programme and progress
4.9 Notice: records and particulars
4.10 Delays after the contract completion date
4.11 Minimising exposure to claims: prevention
5 Formulation and Presentation of Claims 93

5.1 Extensions of time claims 93
5.2 Presentation of extensions of time claims 95
Example 1:A single cause of delay on the critical path 97
Example 2: A single cause of delay - not on
the critical path 97
Example 3: Concurrent delays - critical and
non-critical 104
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Contents
Example 4: Concurrent delays followed by subsequent

delays
5.3 Delays after the contract completion date
Alternative A
Alternative B
5.4 Summary on presentation of extensions of time claims
5.5 Recovery of loss and/or expense and/or damages
Exclusion clauses
5.6 Notice of intention to claim
5.7 Particulars and further information to support a claim
5.8 Prolongation claims:
Site overheads or preliminaries
Prolongation of individual activities
Valuation at cost or using contract rates for
preliminaries
Head office overheads in the event of prolongation
The Hudson formula
Emden's formula
Eichleay's formula
Profit
Example
Hudson, Emden or Eichleay? Percentage to be used:
period for calculating the relevant percentage
Adjustment for overheads and profit in variations
Adjustment for non-recoverable delays
Concurrent delays
Delayed release of retention
5.9 Disruption and loss of productivity
Loss of productivity
Example
Evaluation of loss of productivity
Comparison of actual costs with allowance in the
tender
Assessed percentage addition on disrupted work
Comparison of output or productivity with previous or
other projects or industry statistics
Comparison of output or productivity during known
disruption with output or productivity when little or
no disruption occurred
Which method of productivity should be adopted?
5.10 Claims for acceleration
5.11 Variations
5.12 Dayworks
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x Contents
5.13 Fluctuations
5.14 Quantum meruit
5.15 Finance charges: remedies for late payment
Remedies for late payment
5.16 Cost of preparing the claim
5.17 Assessment and evaluation
The tender
Accounting practice
5.18 Summary on presentation of claims for additional
payment
5.19 Formal claim submission
Introduction: contract particulars
Summary of facts
Basis of claim
Details of claim
Evaluation of claim
Statement of claim
Appendices
6 Subcontractors
6.1 Subcontracting generally
6.2 Nominated subcontractors
6.3 Contractor's rights to object to nominees
6.4 Subcontractors' programmes
6.5 Extensions of time for completion of subcontract works
6.6 Delay by nominated subcontractors
6.7 Architect's consent to grant an extension of time to a
nominated subcontractor
6.8 Design and drawings provided by the subcontractor
6.9 Variations to the subcontract works
6.10 Delay and disruption claims
6.11 Liquidated damages
6.12 The law applicable to the subcontract
7 Response to Claims: Counter-claims

7.1 General policy
7.2 Extensions of time
Late information
Information and variations issued after the completion
date
Omission of work
Concurrent delays
7.3 Claims for additional payment
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Contents
7.4 Counter-claims: liquidated damages: general damages

7.5 Claims against subcontractors
8 Avoidance, Resolution and Settlement of Disputes

8.1 Commercial attitude and policy
8.2 Claim submissions
8.3 Negotiation
8.4 Resolution of disputes by third parties:
Third party expert opinion
Conciliation
Mediation
Adjudication
Arbitration
Foreign arbitration subject to local rules
International arbitration
Arbitration procedure
8.5 Enforcement of foreign awards
International disputes across national boundaries
The 'New York Convention' on the Enforcement of
International Awards
Appendix A: Sample Claim for Extension of Time and

Additional Payment
Appendix B: Sample Loss of Productivity Claim

(due to disruption)
References
Books and publications
List of cases
Abbreviations used in case references
Forms of contract
Miscellaneous abbreviations
Index
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Foreword to the
First Edition
The preparation and negotiation of claims has become an industry within

an industry. In fact, during a period of recession it is one of the few sec-
tions of the construction industry which flourishes. It is not surprising there-
fore to see the publication of another book which deals with claims. There
are a number of books on the market to do with claims but Reg Thomas's
Construction Contract Claims has a number of features which are not
very well catered for by the others.
The section dealing with claims prevention should be studied par-
ticularly by architects and engineers. Reg Thomas draws attention to the
oft-adopted policy of assuming that the issue of information to contractors
can be delayed with impunity on the grounds that the contractor himself is
already in delay. The book argues that the contractor, in support of
an application for an extension of time or a claim that time has become
at large, may argue that even though he is in delay, completion to time
would in any event have been impossible due to the late issue of
information.
Claims settlement invariably becomes protracted and difficult where
records are poor or non-existent. Great assistance is provided by the book
with regard to the type of records which should be kept.
Most books dealing with construction law contain numerous interest-
ing and relevant cases. This book is no exception. An advantage which
this book has to offer is that as many construction cases have been
brought before the courts in the last few years they are all included. A
case which is likely to have a long-lasting effect upon the way in which
claims are prepared and presented is Wharf Properties and Another
v. Eric Cumine Associates and Another (1988).This case has thrown
doubt on the preparation of global rolled-up claims and is dealt with in the
book.
A criticism I levy against many books dealing with construction law is
that they answer all the simple questions but studiously avoid those which
are thorny. Reg Thomas seems to have developed his theme by highlight-
ing the difficult contractual problems and providing cogent answers. In par-
ticular I like the sections dealing with concurrent delays and the contractual
effect of variations issued after the contract completion date but before the
date of practical completion.
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Foreword to the First Edition xiii
The recovery of head office overheads is comprehensively dealt with in

the book and an interesting aspect is reference to and explanation of the
Eichleay formula used in the USA.
Whether a book is read or not is often dependent upon the style in which
it is written. Some books are heavy going from the first page. Reg Thomas's
Construction Contract Claims is written with a light touch and is easy to
read, understand and digest and I have no hesitation in recommending it
to all involved in the construction process, whether building, civils or engi-
neering services.
Roger Knowles
FRICS FCIArb, Barrister
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Foreword to the
Second Edition
I was pleased to be asked to prepare the Foreword to the second edition

of Construction Contract Claims by Reg Thomas.
Reg has been a friend and colleague for more years than I care to count.
One aspect of Reg's work is that he is always very thorough. This hallmark
shows through in the revisions he has introduced. A great deal of change
has taken place with regard to the subject matter since the book was first
published in 1993. Little change of any consequence has been left out.
The impact of the Housing Grants, Construction and Regeneration Act
1996 on the construction industry has probably had more affect than any-
thing else in the last hundred years. Reg in his book has incorporated in
some detail the changes brought about by this piece of legislation. The
courts have been busy in the past ten years. Legal cases which have devel-
oped the law relating to interest and finance charges, head office overheads,
liquidated damages and the power of the courts to open and review the
decisions of engineers and architects are well catered for.
Most of the leading text books such as Hudson's Building and Engi-
neering Con tracts and Keating's Building Contracts have been thoroughly
revised. Their effect on the subject of claims is well catered for. Evey stan-
dard form of contract has been revised and re-issued in the past ten years
and, as you would expect, a very professional job has been carried out in
amending the text and providing cogent explanation. Throughout his career
Reg has spent a great deal of time either working overseas or being involved
in overseas projects. This experience shines through in the manner in which
the new FIDIC contracts are dealt with. The observations on the relative
merits of FIDIC and the NEC make for vey interesting reading.
The revisions to the book do not merely deal with the question of up-
dating. I particularly like the revised and much expanded section on the
evaluation of loss of productivity. Few claims written by contractors and
subcontractors tackle this area of loss in a convincing manner. They are
advised to study this part of the book with care if they are looking to
improve their recovery rate from loss of productivity.
The book in its revised form is one of the few which deals with claims
in a truly international manner. Whether the contracts are UK based or
International, no matter that the law of the contract relates to the home
front, Far East, USA or South Africa, this book does it justice.
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Foreword to the Second Edition xv
Those who bought copies of the first edition will waste no time in order-
ing the second edition. Anybody who deals with claims and does not have
a copy of the first edition will be well advised to buy the second.
Roger Knowles
FRICS FCIArb, Barrister
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Preface t o the
First Edition
There are a number of excellent text books on construction law, contracts

and claims. The author has referred to Hudson's Building and Engineer-
ing Contracts, tenth edition for a number of early cases, and readers are
advised to refer to this invaluable source for a better understanding of many
issues discussed in this book. Publications by James R. Knowles listed in
the bibliography have also been invaluable in the preparation of this book
and are recommended for further reading. Knowles' publications and sum-
maries of the cases cited in References may be purchased from Knowles
Publications, Wardle House, King Street, Knutsford, Cheshire WA16 6PD.
The contents of this book are intended to present to readers a general view
of the practical problems which exist and how they might be avoided or
resolved. The views expressed by the author represent several years' ex-
perience of looking backwards at projects which have gone wrong. In prac-
tice, many projects go well, are completed without major claims, and where
they do occur, they are often settled promptly, professionally and amica-
bly. Unfortunately, there is an increasing incidence of claims, most of which
are brought about by financial pressures which stretch the resources of
consultants, contractors and subcontractors alike. Many firms do not have
sufficient allowances built into their fees, or into the contract price, to carry
out their obligations properly. Some firms lack sufficient staff with the skills
required to manage projects efficiently and to deal with claims in a profes-
sional manner. Insufficient attention to training staff, so that they can be
better prepared to deal with claims, is another reason for many of the prob-
lems which exist in the industry. Whilst many claims are well presented and
dealt with professionally by the recipient, some of these failures are evi-
denced in the presentation and quality of some claims submitted by large
and small firms alike and in the response made by some architects, engi-
neers and quantity surveyors.
The chapters which follow attempt to guide readers through the history
of developments in law and contracts so that they may understand more
fully the reasons for good contracts administration as a means of avoiding
or minimising the effects of claims for delay and disruption.
Some of the arguments and methods of quantifying claims in this book
should be regarded as possible means of persuasion according to the cir-
cumstances and records which are available to support a claim. In some
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Preface to the First Edition xvii
cases, a lack of records may not be fatal to a claim, but it may be an uphill
battle to persuade the recipient of a claim to pay out large sums of money
on the basis of hypothetical calculations which have no real foundation.
Readers should be aware that there is no real substitute for good records
when it comes to quantifying a claim for an extension of time or for addi-
tional payment. Nevertheless, if the contractor has been delayed at almost
every turn, it must be right that he receives some relief and compensation
so far as it can be established by applying commonsense according to the
circumstances. As a consultant to contractors and subcontractors, a duty is
owed to them to use every means available, providing that they are honest
and justifiable, to obtain the best possible settlement of their claims. As a
consultant to employers (or to contractors defending a claim from subcon-
tractors), a duty is owed to them to defend all claims and to discredit any
unmeritorious claims. Nevertheless, employers (and contractors as the case
may be) will need to be advised on the possible worth of a claim in order
to facilitate a decision as to settlement or arbitration or litigation.
Whilst some practitioners may seek refuge in cases in which claims have
been rejected on the grounds that the records and/or the method of quan-
tification were lacking, the author supports the view expressed in Penvidic
Contracting Co. Ltd v. International Nickel Co. of Canada Ltd (1975)
53 DLR (3d) 748 (quoting Davies J in Wood v. Grand Valley Railway Co)
- see A Building Contract Casebook by Dr Vincent Powell Smith and
Michael Furmston at page 316:
'It was clearly impossible under the fact of that case to estimate with anything
approaching to mathematical accuracy the damages sustained by the plaintiffs,
but it seems to me clearly laid down there by the learned Judges that such an
impossibility cannot "relieve the wrongdoer of the necessity of paying damages
for his breach of contract" and that on the other hand the tribunal to estimate
them, whether juy or Judge, must under such circumstances do "the best it can"
and its conclusion will not be set aside even if 'the amount of the verdict is a
matter of guess work.' (emphasis added).
However, the above quotation should not be relied upon to cure all ills. The
terms of the contract and other circumstances may require a more robust
approach when defending any claim which is clearly deficient in the essen-
tial ingredients to justify anything less than total or partial rejection.
It is hoped that this book will provide useful guidance for those respon-
sible for dealing with claims so that they can be resolved with the minimum
cost and without any party being seriously disadvantaged.
Reginald W. Thomas
Spring 1992
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Preface to the
Second Edition
Since the first edition of this book, there have been several important
changes in contracts and law which are worthy of note. There have also
been a number of excellent new publications, in particular, the eleventh
edition of Hudson's Building and Engineering Contracts, Delay and Dis-
ruption in Construction Contracts by Keith Pickavance and a number of
'up-to-the minute' regular publications by James R. Knowles to which the
author has been fortunate to have had access and which have been invalu-
able in the preparation of this book. As in the first edition of this book, the
author has referred to the tenth edition of 'Hudson' and its supplements
for a number of early cases and to Construction Contracts: Principles and
Policies in Tort and Contract by the same author, much of which is now
reproduced in the eleventh edition of 'Hudson'. In addition the author has
sourced a number of important US cases of interest from Construction
Delay Claims by Barry B. Bramble and Michael T. Callahan, a publication
which ought to be read by those wishing to have an account of many
aspects of claims which are seldom covered in detail in the UK.
During the decade since the first edition, the report 'Constructing
the Team' published under the chairmanship of Sir Michael Latham (The
Latham Report) stimulated constructive discussion about the direction of
contracting in the UK. The Government, in its enactment of the Housing
Grants, Construction and Regeneration Act 1966 (The Construction
Act), took on board many of the recommendations in the Latham Report.
The publication of 'The New Engineering Contract' (NEC), now reissued
under a new title, 'The Engineering and Construction Contract', helped to
promote a new approach to contracting based on good contract adminis-
tration and minimisation of disputes (as well as quick and effective resolu-
tion of such disputes if they arose). The decade ended with the NEC gaining
ground in the UK and internationally.
Unfortunately, the good ingredients in the NEC have not been grasped
by institutions promoting other forms of contract. Whilst it is true that
dispute resolution in the UK has been given new dimensions by require-
ments imposed by the Construction Act, little has been done to follow some
of the better principles found in the NEC. At the end of the decade, Fbdbra-
tion International des Ingbnieurs-Conseils(FIDIC)introduced its test editions
of four new contracts, three of which were to replace existing contracts and
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Preface to the Second Edition xix
one of which was entirely new (for small works). The test editions illustrated
an attitude which promoted adversity by the introduction of stringent notice
provisions which could only have increased the incidence of poor relation-
ships and disputes. Fortunately, after consultation with contractors and
other interested parties, FIDIC has softened its approach to some extent.
It has introduced a Dispute Adjudication Board into all of its standard con-
tracts which fits broadly into the recommendations of the Latham Report.
FIDIC has also improved procedures for contract administration by the con-
tractor, but has not seen fit to bring the employer into the team in the same
way as the NEC.
This book does not seek to promote any one single contract over
another. The criticism of FIDIC when compared to NEC is intended to illus-
trate the author's view that, in spite of several important changes in con-
tracts and law, the fundamental divide between employers and contractors
is still fairly deep rooted. Claims and disputes are unlikely to change in sub-
stance and form in the near future unless all sides of the industry recognise
that co-operation is more effective than separation. A new wind of change
is still needed if the highly experienced and expensive resources currently
engaged in the claims and arbitration business are to be better used in
designing, managing and constructing exciting projects in the twenty-first
century.
'An offending brother is more unyielding than a fortified city,
and disputes are like the gates of a citadel.' Proverbs 18: 19 (NIV)
Reg Thomas
Spring 2000
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Acknowledgements to the
First Edition
The author expresses his sincere thanks to Roger Knowles for giving his
consent to use of the extensive computer library facility of James R.
Knowles, including notes and diagrams used for seminars conducted by the
company, and for writing the Foreword to this book.
Particular mention and thanks must be given to Ann Glacki, head of
James R. Knowles' library and author of BLISS (Building Law Information
Subscriber Service) for her co-operation and assistance in searching for suit-
able cases and other reference material which have been invaluable for the
preparation of this book. I also thank Peter Nuttall, formerly a senior con-
sultant of James R. Knowles for his help in preparing many of the diagrams
used for illustration.
Thanks are also given to Professor Ivor H. Seeley and the publishers for
their support and constructive advice on the preparation and production of
all stages of this book.
Last, but not least, to my wife, Joan, for her tolerance and support during
the long evenings and weekends that I have taken to write this book.
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Acknowledgements to the
Second Edition
The author again expresses his thanks to Roger Knowles for his consent
to use the extensive library facilities of James R. Knowles, including notes
and diagrams from seminars conducted by the company and for kindly
writing the Foreword to this second edition.
Particular thanks must also be given to:
Anne Glacki, head of James R. Knowles' library and author of BLISS, and
her staff for co-operation in sourcing reference material;
David Price, Managing Director of James R. Knowles (International Divi-
sion) for his valuable input into some of the source materials used for
sections on BOT (Build, Operate and Transfer) and the 1999 FIDIC
family of contracts;
Ian Dunbar, former Director of Knowles' Project Services, for his assistance
with some of the graphical presentations in this book and for his com-
puter skills and handling tens of thousands of data entries for the prepa-
ration of a multi-million pound loss of productivity claim on a shipbuilding
contract which successfully put into practice the 'productivity factor'
method described in 5.9 and Appendix B;
Chris Binnington of Binnington Copeland and Associates (Pty) Ltd,
Greenside, South Africa for bringing a number of important South
African cases to my attention and for his assistance in the commentaries
on these cases and on South African Law which are mentioned in this
book;
Barry B. Bramble of Pinnacle One and Michael T. Callahan, president of
CCL Construction Consultants, Inc., and John Wiley & Sons for their
co-operation and consent to use and incorporate extracts from Con-
struction Delay Claims, first edition in James R. Knowles' publication
and seminar 'All you need to know about claims' from which much ma-
terial has been drawn in the preparation of 5.9 of this second edition.
Thanks are also given to the publishers for their support and constructive
advice in preparing this second edition.
Finally to my wife, Joan, for again giving me support and encourage-
ment during the preparation of this work.
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Brief History of
Construction Contracts
and Case Law
1.IIntroduction
Modern contracts are used in a commercial environment which has encour-

aged the development of claims in construction contracts in recent years.
Nevertheless, many of the conditions of contract used today are based on
documents that were drawn up in the nineteenth century, and much of the
construction law that is relied upon in the courts and in arbitration has been
made as a result of cases that took place in the industrial revolution.
Civil engineering contracts evolved significantly in the nineteenth
century, mainly as a result of the growth in transport, such as canals and
railways. Most early contracts had the essential ingredients governing price,
time for completion, damages and specification of the work to be done,
but it was the construction of the canals and railways which eventually
caused entrepreneurs to consider additional provisions such as health, safety
and welfare and to make contractual provisions governing the requirements
which were necessary to protect the workforce and the community. In
his book The Railway Navvies (Penguin Books, 1981), Terry Coleman
describes how the Chester and Holyhead Railway Company stipulated in
contracts that the contractors should provide huts for the men where there
was no room for them in the villages along the line, and that the men should
be paid on stated days in money, with no part paid in goods.
At the same time as the growth in civil engineering there was an increas-
ing demand for buildings such as mills, factories and hostels for a working
population which had flooded into the towns and cities. Building contracts
had to take account of new pressures to complete on time, and new stan-
dards and specifications had to be drawn up to cope with new materials,
such as cast iron, which were becoming available in commercial quantities.
It is evident from reported cases throughout the nineteenth century that the
roles of architect, or engineer or surveyor included that of an independent
certifier when carrying out certain duties under construction contracts.
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2 Construction Contract Claims
Gradually the contents of construction contracts became more sophisti-

cated and included a host of new provisions; some brought about by Statute
and others by the influence of the new professional institutions and trade
associations that were being formed and which were to play an important
role in a fast growing industry.
The method of tendering, in the early years of the industrial revolution,
is best illustrated by Firbank, quoted by Coleman in The Railway Nauuies
(supra):
'Firbank himself used to tell a story of one Mr Wythes (probably George Wythes,
who undertook, among other lines, that from Dorchester to Maiden Newton)
who was thinking of submitting an offer for a contract. He first thought £18000
would be reasonable, but then consulted his wife and agreed it should be
£20 000. Thinking it over, he decided not to take any risk, so made it £40 000.
They slept on it and the next morning his wife said she thought he had better
make it £80 000. He did; it turned out to be the lowest tender notwithstanding,
and he founded his fortune on it.'
Fortunes could be made quickly, but many contractors went broke from
underestimating the practical difficulties of constructing the work to strict
standards in all weathers and a lack of awareness of the consequences of
delay and other serious breaches of contract. It was soon realised that a
major area of risk was inherent in the uncertainty of the quantity of work
to be done and the variable ground conditions. Civil engineering contracts
developed on the basis that all work would be remeasured at rates which
were agreed at the outset; a reasonable solution bearing in mind the uncer-
tainty of ground conditions which affected most of the work which was to
be carried out. On the other hand, it was thought that building work was
capable of quantification with reasonable accuracy (with the exception of
changes ordered after the contract was agreed).
Therefore, building contracts were generally not subject to remeasure-
ment and the contractor bore the risk of any mistakes which he may
have made when measuring the work to be done from the drawings. The
high cost of tendering for building work caused tendering contractors to
engage a 'surveyor' who was responsible for measuring all of the work from
the drawings and whose fees would be shared by all tenderers. Very soon
this practice was overtaken by the employer (or his architect) engaging the
surveyor to measure the work and for the 'quantities' to be provided
for each tendering contractor for pricing the work. The surveyor's fees for
measuring the work was usually required to be shown at the foot of the
priced bill of quantities to be submitted with the tender and the successful
contractor would then pay the surveyor out of the proceeds of interim cer-
tificates. This meant that each tendering contractor started by pricing the
work based on the same bills of quantities, thereby reducing the cost of
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History of Construction Contracts and Case Law 3
tendering and reducing the risk of error in quantifying the work to be

done.
This practice, which survived for many years, caused problems if the
building owner decided not to proceed with the work. Some building owners
contended that they had no liability to pay the quantity surveyor's fees if
the contract did not go ahead: Moon v. Whitney Union (1837), and
Waghorn v. Wimbledon Local Board (1877); (Hudson's Building and
Engineering Contracts, tenth edition, at pp 113 and 114). Even as late
as the 1920s some standard forms of contract reflected this practice. The
form of contract which was known by the short title as The Model Form
of Contract (one of the RIBA publications referred to hereinafter), con-
tained the following clause 1 4 prior to 1931:
'(a)The fees for the Bills of Quantities and the Surveyor's expenses (if any) stated
therein shall be paid by the Contractor to the Surveyor named therein out of
and immediately after receiving the amount of the certificates in which they shall
be included. The fees chargeable under clause 13 [Variations] shall be paid by
the Contractor before the issue by the Architect of the certificate for final
payment. (b) If the Contractor fails or neglects to pay as herein provided, then
the Employer shall be at liberty, and is hereby authorised, to do so on the cer-
tificate of the Architect, and the amount so paid by the Employer shall be
deducted from the amount otherwise due to the Contractor.'
Until 1963 the RIBA standard forms of contract contained optional provi-
sions (clause 10) whereby the contractor could be responsible for paying
the quantity surveyor's fees out of monies certified by the architect.
However the quantity surveyor generally became engaged by the building
owner, or his architect, who were responsible for paying the fees.
Whilst much of the case law which was relevant to construction contracts
was shaped in the nineteenth century, there continued to be cases of note
during the twentieth century. In parallel, non-standard and standard forms
of contract evolved. The first 'standard forms of contract' were probably
developed by public corporations. Revisions to many forms of contract were
often prompted by decisions in the courts and these revisions (or the inter-
pretation and application of them) sometimes became the subject of later
cases which were to have a continuing influence on the draftsmen of new
contracts and on the understanding of the law which affects contracts in
construction.
Standard forms of contract which came into general use in building con-
tracts were developed by the Royal Institute of British Architects (RIBA).By
the early twentieth century the use of the RIBA form of contract was wide-
spread. This form of contract, which was to be the subject of several edi-
tions and revisions, was to become the basis of most building contracts and
was the forerunner of the Joint Contracts Tribunal (JCT) forms of contract
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of 1963 and 1980. In civil engineering, the first edition of the Institution
of Civil Engineers (ICE) conditions of contract was launched in 1945. The
seventh edition (1999) is currently in use. One of the features of these stan-
dard forms of contract is that they are approved and accepted by the pro-
fessional institutions and the contractors' associations. Several other
standard forms of contract developed independently, such as GC/Works/l
for use by government departments and forms published by other profes-
sional bodies.
Internationally, particularly where there was British influence, standard
forms of contract developed on the same lines as in the United Kingdom.
Forms of contract which were (almost verbatim) the same as the RIBA/
JCT forms of contract came into use in Cyprus, Jamaica, Gibraltar,
Bahrain, Hong Kong and Singapore. In Cyprus, one of the first editions of
the RIBA form of contract (probably used in the United Kingdom about the
time of the First World War) has been used alongside a variant of the 1963
edition of the JCT form of contract.
In Hong Kong a variant of the 1963 edition of the JCT form of con-
tract is widely used and a draft based on the 1980 edition of the JCT form
has been awaiting sanction since the early 1980s. Until recently, the form
of contract used in Singapore was a variant of the 1963 edition of the JCT
form. However, since 1980 the Singapore Institute of Architects has
departed from following developments in the United Kingdom and has
adopted an entirely new form of contract which bears no resemblance to
any other standard form of contract used in the United Kingdom. In civil
engineering a standard form of contract for use internationally was devel-
oped and agreed by the Fbdbration Internationale des Ingknieurs-Conseils
(FIDIC) using almost entirely the same format and conditions as the ICE
conditions of contract. Various editions of FIDIC are currently being used
internationally. The fourth edition of FIDIC (published in 1987) is the last
to be used, based on the ICE format, and the new 1999 editions are likely
to be used in the future.
In all forms of international contracting, it is important to be aware that
there are significant differences in law in various parts of the world. There
are four main categories of law:
Common law based on the English legal system;
Civil law based on the French or German codes;
Local law (such as the Shari'a in the Middle East);
Combinations of various laws and legal systems.
Common law jurisdictions

This type of legal system is found mainly in Commonwealth countries. As
in the UK, there are a number of statutory laws and it is here that the main
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departures from English law can be found. Some examples are given later
in this chapter.
Civil law jurisdictions

Whilst this is evident in France and its former colonies, many countries have
developed their own Civil Codes using the French Civil Codes as a model.
In the Middle East, Egypt was the first country to adopt a codified legal
system based on the French Codes. The draftsman of the Egyptian Codes
also drafted the Kuwait Civil Codes and, whilst there have been changes
from the original French versions in both adaptations, in many respects
Egyptian and Kuwaiti law follows French law. In the Far East, Thailand has
its own Codes which are based on the French Codes.
Examples of significant differences between some of the Civil laws and
English common law are:
Termination - In some civil law jurisdictions, regardless of the contrac-

tual provisions, it is not possible to terminate a contract without obtain-
ing an Order from the courts.
Quantum meruit - In many civil law jurisdictions, quantum meruit is
not recognised. The contract price must be agreed or determined by an
agreed method. In contrast, the Kuwaiti Commercial and Civil Code con-
tains the following provisions:
'If no consideration is mentioned in the contract, the Contractor shall be enti-

tled to be paid at the prevailing rate for similar work at the date of conclusion
of the contract'
Consideration -Under English law, consideration is an essential element

of a contract (with certain exceptions). Often, civil law jurisdictions do
not require consideration as an essential element of a contract. A con-
tract can be made without any consideration.
Time for acceptance of offers - Whilst an offer can be withdrawn at
any time before acceptance under English law, some countries have
introduced laws to make it a condition that offers are kept open for a
specified period and cannot be withdrawn before the period has expired
(for example, in Kuwait). Obligations of honesty and good faith are recog-
nised by the courts in civil law jurisdictions. Therefore the revocation of
an offer may be seen as a breach of judge-made law that offers must be
kept open for a reasonable time.
Letters of intent - The original purpose of a letter of intent was only a
statement to the effect that the employer intended to enter into a con-
tract at some later stage and the letter imposed no obligations on the
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parties under English law. In many civil law jurisdictions, a letter of intent
is an 'Agreement in Principle'. That is to say that all of the terms may
not have been agreed but the principle of an agreement has. The parties
are required to negotiate in good faith and conclude a contract in due
course.
Liquidated damages and penalties - Under English law, a penalty
clause cannot be enforced. Roman Dutch law recognises penalty clauses
and they can be enforced. Sometimes the law includes the powers given
to the Court to modify a penalty if the amount shall be considered
excessive or derisory. In South Africa, there are limited provisions for
modifying penalties (see 1.4).In many Middle Eastern countries, the dis-
tinction between liquidated damages and penalties is a matter of trans-
lation (there is no Arabic word for 'liquidated damages') and 'penalties'
are construed as if they were liquidated damages.
Local law
Some countries have developed their own laws and have been almost unin-
fluenced by the laws of other countries. In some cases, much of the law is
based on religious teachings. For example, Saudi Arabia law is almost
entirely based on the Shari'a (Islamic Law), in which there are four main
'Sunni Schools' (Hanafi, Maliki, Shafi'i and Hanbali). The main differ-
ences between the four schools is the priority which is given to the Qur'an.
Some countries have combined Shari'a with modern statutes or codes to
a greater or lesser extent.
Combinations of various laws and legal systems

Combinations vary widely from country to country. Bahrain arid the UAE
have traditionally followed the common law legal systems, with an element
of Shari'a and written regulations. However, Bahrain and the UAE appear
to be moving in the direction of civil law based on the French and Egypt-
ian legal systems. Kuwait have a fully codified legal system and is one of
the most advanced of the Gulf States in that it has been a civil law juris-
diction for many years. Its Civil Code is similar to that of Egypt but some
local laws still apply.
Since 1907, Japan's laws have been developed on a Civil and Com-
mercial Code (of German influence) followed by a degree of American influ-
ence after the Second World War. In spite of this history, complex
contractual arrangements are generally avoided, even for some major pro-
jects. The traditional Japanese philosophy has remained almost unaffected
by recent developments in law.
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The law of the contract and the procedural law
The law o f the contract

This is the law which governs the interpretation and application of the
contract. It is important to establish any impediment to foreign laws which
cannot be enforced in the county in which the contract is made.
The procedural law

This is a law which governs the litigation or arbitration and is normally the
law of the county in which the proceedings will take place. It is not nec-
essarily the same as the law of the contract.
Difficulties can arise if the choice of law is ambiguous. In general, the choice
of law specified in the contract will be upheld unless:
it is contray to public policy of the place where the proceedings are
held;
the choice is not exercised for bona fide and legal reasons;
dicta of Denning LG in Bouissevan v. Weil (1948) 1KB 4 8 2 applies -
' I do not believe the parties are free to stipulate by what Law the valid-
ity of their contract is to be determined. Their intention is only one of
the factors to be taken into account.'
Problems can arise if the choice of the law of contract for main contracts
and subcontracts are not the same (see 6.12 infra).
1.2 Bills of Quantities
Contractors who calculated their own quantities from drawings supplied by

the building owner adopted methods of measurement according to their
own style. The first quantity surveyors also prepared the bills of quantities
in their own style and adopting their own particular methods of mea-
surement. In the beginning this was probably confusing as the tendering
contractors must have placed their own interpretation on the method
of measurement. No doubt the quantity surveyors gradually developed
methods which were fairly consistent and contractors became familiar with
each individual quantity surveyor's method of measurement. The courts
dealt with many cases involving liability for inaccurate bills of quantities and
the decisions appear to be inconsistent. The apparent inconsistency was
due in part to the distinguishing features of the various contracts and rep-
resentations which were made regarding the quantities. However, it was
held in Bolt v. Thomas (1859)(Hudson's Building and Engineering Con-
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tracts, tenth edition, at page 196) that where it was stipulated that the
builder should pay the architect for the calculation of the quantities, and he
had done so, then the builder was entitled to compensation from the archi-
tect if the bill was not reasonably accurate.
As late as the 1920s the Model Form of Contract (RIBA)did not incor-
porate a standard method of measurement, nor did it expressly state that
the bills of quantities was a contract document. Nevertheless it was implied
that the bills of quantities had contractual status and the contract contained
provisions in clause 12a as follows:
'Should any error appear in the Bills of Quantities other than in the Contrac-
tor's prices and calculations, it shall be rectified, and such rectification shall
constitute a variation of the Contract, and shall be dealt with as hereinafter
provided.'
The provisions in the above contract have survived to the present day and
almost identical wording appears in the 1963 and 1980 editions of the
JCT form of contract. Similar provisions also appear in the sixth and
seventh editions of the ICE conditions of contract in clause 55(2).
In the absence of a standard method of measurement, errors in com-
posite descriptions and alleged omissions of items, as opposed to errors in
measurement, became a constant source of argument. The first steps to
rectify these difficulties probably took place in 1909, when the Quantity
Surveyors' Association appointed a committee to prepare and publish pam-
phlets recommending the method of measurement for three trades. The
first edition of the Standard Method of Measurement (SMM) was published
in 1922 with the agreement of representatives of the Surveyors' Institution,
the Quantity Surveyors' Association, the National Federation of Building
Trades Employers and the Institute of Builders. The situation which existed
prior to the publication of the first edition is perhaps best described in the
opening paragraph of the preface to this historic document:
'For many years the Surveyors' Institution and the Quantity Surveyors' Associ-
ation (which bodies are now amalgamated) were accepted as the recognised
authorities for deciding disputed points in connection with the measurement of
building works. The frequency of the demands upon their services for this
purpose directed attention to the diversity of practice, varying with local custom,
and even with the idiosyncrasies of individual surveyors, which obtained. This
lack of uniformity afforded a just ground of complaint on the part of contractors
that the estimator was frequently left in doubt as to the true meaning of items
in the bills of quantities which he was called upon to price, a circumstance which
militated against scientific and accurate tendering.'
As might be expected, it took several years for the quantity surveying pro-
fession to become aware of the SMM and to use it in practice. Several years
after the publication of the first SMM, in House and Cottage Construc-
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tion, Volume IV, Chapter 11 (Caxton Publishing Company Limited), Horace

W. Langdon Esq., F.S.1, a practising Chartered Quantity Surveyor, made
no reference to a standard method of measurement and he described how
the quantity surveyor ought to explain the method of measurement used to
prepare the bills of quantities.
The second edition of the SMM was published in 1927, and in 1931
the RIBA published its revised form of contract which (in clause 11)incor-
porated the SMM, where quantities formed part of the contract. The first
test as to the valid incorporation of the SMM into the contract and the
application and interpretation of the principles laid down in the standard
method of measurement took place in 1938: Bryant and Sons Ltd v. Birm-
ingham Saturday Hospital Fund [I9381 1 All ER 503. It was held that
clause 11 of the contract, and the SMM, had been incorporated into the
contract and that the contractor was entitled to extra payment for excava-
tion in rock which ought to be measured separately pursuant to the prin-
ciples laid down in the SMM.
It is evident that the decision in the Bryant case turned on the special
wording in the standard form in clause 11, to the effect that the bills unless
otherwise stated should be deemed to have been prepared in accordance
with the current standard method of measurement. Almost identical provi-
sions appear in clause 12(1)of the 1963 edition and in clause 2.2 of the
1980 edition of the JCT forms of contract and are the basis of many claims
which persist in the construction industry today. The development of more
sophisticated standard methods of measurement, whilst desirable in many
respects, has done little to eliminate this type of claim. The provisions of
SMM7 require the quantity surveyor to provide more detailed information
than that required by the SMM (where necessary) (Al)and for the employer
to provide information on groundwater (D3.1)or to state what information
is assumed.
Civil engineering quantities developed along similar lines to building
quantities and standard methods of measurement became incorporated into
contracts for civil engineering work. Clause 57 of the fifth, sixth and seventh
editions of the ICE conditions of contract contains similar provisions regard-
ing the status and application of the Civil Engineering Standard Method of
Measurement (CESMM) referred to therein. Any work carried out by the
contractor which is not measured separately in accordance with the
CESMM may (unless there is a statement to the contrary) be subject to a
claim for additional payment: A.E. Farr Ltd v. Ministry of Transport
(1965) 5 BLR 94.
In international contracting, it is unfortunate that the clear advantages
resulting from standard methods of measurement which seek to address the
problems stated in the preface to the 1922 SMM (supra) have not been
grasped. Little could be simpler than to select one of the many standard
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methods of measurement for building or civil engineering work and to

specify that the works have been measured accordingly. This would remove
the uncertainty in pricing large and complex projects based on bills of quan-
tities. One of the UK SMMs or a local SMM (such as exist in Jamaica and
Hong Kong) or the International SMM may suit the purpose.
The situation which prevails all too often is for the contract to say (in
this example quoting from the 1999 FIDIC Red Book, clause 12.2 (b)):
'. . . the method of measurement shall be in accordance with the Bill of Quanti-
ties or other applicable Schedules.'
Such provisions can (unless the contract sets out in'considerable detail the
methods of measuring each element of work) only lead to estimators being
left in doubt as to the true meaning of items in the bills of quantities.
1.3 Variations
Building and civil engineering contracts are of such a nature that it is almost
impossible, especially where work has to be carried out in the ground, to
design and construct a project so that the final product is identical in every
way to the original design which formed the basis of the contractor's tender.
Changes to the original design and/or details may come about for techni-
cal reasons or because the building owner desires a revision to the plans
or details.
Where technical reasons are the cause of a variation (for example, unsuit-
able ground conditions) the employer, or his architect, or engineer, will have
limited control over the scope of the change in the work to be done by the
contractor. Where the employer desires a change to the plans or details (for
example, for aesthetic, or practical, or financial reasons), the scope of the
change is to a large extent within the control of the employer. Without a
suitable provision in a contract which allows the works to be varied, such
changes would not be permitted (under the terms of the contract) and
in the event of unavoidable changes for technical reasons the contractor
would no longer be obliged to complete the work. Changes could only be
executed with the agreement of the contractor or by way of a separate
contract.
The standard forms of contracts used in building and civil engineering
forms of contract provide for variations which are necessary or desirable
(the latter being the employer's prerogative, but it does not exclude varia-
tions initiated by the contractor). The JCT forms of contract expressly
provide for the architect to sanction a variation made by the contractor
without an instruction issued by the architect.
Sometimes arguments are raised concerning the limit beyond which it
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History o f Construction Contracts and Case Law 11
may be regarded that the changes were outside the scope of the variation
clause. Such arguments, if successful, would enable the contractor to refuse
to execute the revised works or to escape from the contract rates and
recover on a quantum meruit basis (a reasonable valuation in all the cir-
cumstances). There are no finite guidelines to assist in this matter. Some
early forms of contract expressly stated a percentage of the contract price
as the yardstick for determining the extent of variations permitted under
the terms of the contract. The international form of contract (FIDIC) pro-
vides for a limited revision to the contract price if the sum total of all changes
and remeasurement (with some exceptions) exceeds 10 per cent (clause
52(3)of the third edition) or 15 per cent (clause 52.3 of the fourth edition).
However, this cannot be construed as being a true valuation on a quantum
meruit basis. In the absence of stated limits such as a percentage, it is nec-
essary to decide whether or not the scope of the changes went beyond that
which was reasonably contemplated by reference to the contract documents
and the surrounding circumstances of the case.
In Bush v. Whitehaven Port and Town Trustees (1888) 5 2 JP 392,
the contractor was to lay pipes and possession of the site was to be given
to the contractor for the performance of the work. Owing to delay in giving
possession of the site to the contractor, the work had to be done in the
winter, whereas it was contemplated that the work would be done in
the summer. It was held that the contractor was entitled to payment
on a quantum meruit basis (a reasonable price for the work in all the
circumstances).
Modern contracts contain variation provisions which are so wide that it
may appear doubtful that any claim for payment on a quantum meruit
basis would succeed. However, in Wegan Construction Pty. Ltd. v.
Wodonga Sewerage Authority [I9781V R 6 7 (Supreme Court of Victoria),
the contractor successfully claimed on a quantum meruit basis. This case
is worthy of further consideration on the grounds that the contractual pro-
visions for variation were very wide (being similar to the ICE fifth and sixth
editions and FIDIC fourth edition) and is summarised in Chapter 5.
Another problem which has come before the courts over the years, is
the vexed question about omissions when the employer intends to have the
work done by others. It is an increasingly common practice, when progress
is delayed by the contractor, for the employer (through his architect) to omit
work. This is often work which ought to be done by nominated subcon-
tractors under the architect's instructions and its omission appears to be
aimed at holding the contractor liable for liquidated damages (due to the
contractor's own delay) on the mistaken premise that such an omission is
a valid variation.
Presumably the employer believes that if the work is omitted, the archi-
tect does not have to issue any (late) instructions to carry out the work,
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which would have the effect of defeating the employer's claim to liquidated
damages. It is well established in law that the power to omit work, even
where the contract provides that no variation should in any way vitiate or
invalidate the contract, is limited to genuine omissions, that is, work not
required at all. It does not extend to work taken out of the contract for it
to be done by another contractor: Carr v. J. A. Berriman Pty Ltd (1953)
2 7 ALJR 237 (Aus).
1.4 Extensions of Time and Liquidated Damages: Penalties
An extension of time provision is inserted in a contract for the benefit of

both the contractor and the employer. However, its insertion is primarily
for the benefit of the employer. Without such a provision, once the
employer had caused delay, the contractor would no longer be bound to
complete the works by the contract completion date and the employer
would no longer be able to rely on the liquidated damages provisions in the
contract. These fundamental points are often not appreciated by employ-
ers or their agents who are responsible for making extensions of time, in
spite of the fact that decisions in the courts spanning almost two centuries
have consistently reflected this view. In Holme v. Guppy (1838)3 M & W
387, the contractors were responsible for delay of one week and the
employer was responsible for delay of four weeks. There was no extension
of time clause. It was held that the employer could not deduct liquidated
damages from monies due to the contractor.
Draftsmen of contracts for building and civil engineering work recognised
that there were many possible causes of delay to projects which were to be
constructed over a period of years, in all weathers, and which were almost
certainly going to be subject to delay by events within the control of the
employer. Delays which were due to neutral events (such as inclement
weather) and events which were generally within the control of the con-
tractor were of no concern to the employer, and if contracts were delayed
by such matters, then the contractor would have to take the necessary
measures to make up the delay or face the consequences by payment of
liquidated damages.
The use of contracts with onerous provisions which held the contractor
liable for damages for every type of delay was not commercially satisfac-
tory, as it encouraged cautious contractors to increase their prices and the
reckless ones probably went out of business. Neither of these options were
in the interests of the employer nor were they in the interests of the indus-
try as a whole. On the other hand, delays on the part of the employer
would extinguish the employer's rights to liquidated damages and it was
therefore essential that the contract should include suitable provisions to
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enable the employer, or his agent, to make an extension in the event of

delay for any cause which was within the employer's control or for which
the employer was responsible (such as obtaining statutory approvals).
The drafting of suitable provisions which would protect the employer in
the event of delay caused by him, and which would permit extensions of
time for neutral causes and causes of delay which were generally within the
control or at the risk of the contractor, proved to be a major problem. Very
general provisions such as 'circumstances wholly beyond the control of the
builder' proved to be of no effect in circumstances where delay had been
caused by the employer. This was held in Wells v. Army and Navy Co-
operative Society Ltd (1902) 8 6 LT 764, where the extension of time
clause contained the words 'or other causes of delay beyond the contrac-
tor's control'.
In spite of the decision in the Wells case (which was reported in the
fourth edition of Hudson's Building Contracts in 1914), draftsmen of
building and civil engineering contracts continued to use general terms
which were almost certainly bound to be ineffective where the employer
caused delay. Over fifty years later in Perini Pacific Ltd v. Greater Van-
couver Sewerage and Drainage District Council [I9671SCR 189, delays
of ninety-nine days occurred which included forty-six days on the part
of the employer. The extension of time clause in the contract contained
the provisions to extend time for completion due to 'extras or delays occa-
sioned by strikes, lockouts, force majeure or other cause beyond the control
of the contractor'. It was held that the extension of time clause did not
cover delays caused by the employer and no liquidated damages could be
recovered.
The fourth, fifth and sixth editions of the ICE form of contract and the
third edition of FIDIC contain the general terms 'other special circumstances
of any kind whatsoever'. It is evident, in view of the decisions in the Wells
and Perini Pacific cases, that these standard forms of contract, some of
which are still in use today, do not cover delay by the employer (with the
exception of certain specified 'other cause of delay referred to in these Con-
ditions'). It is conceivable that several causes of delay by the employer could
occur in a civil engineering contract, which delays are not expressly covered
elsewhere in the contract and which would therefore deprive the employer
of its rights to deduct liquidated damages.
For many years standard forms of building contract appear to have been
drafted in recognition of the difficulties caused by the Wells decision. Since
the early part of this century the RIBA forms of contract have listed several
causes of delay within the control of the employer (and other causes of
delay) for which an extension of time could be granted. However, unless
such a list is comprehensive, any delay which is not included therein would
not qualify for an extension. If the nonqualifying delay was the employer's
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responsibility, no extension could be granted and the employer's rights to

deduct liquidated damages would be extinguished. This point was clearly
emphasised in Peak Construction (Liverpool) Ltd v. Mckinney Founda-
tions Ltd (1970) 1 BLR 111. In this case a subcontractor (Mckinney)was
guilty of defective work in the piling for foundations as a result of which
there was a suspension of work. The subcontractor submitted design pro-
posals to remedy the defects. The employer (Liverpool Corporation, a local
authority) took an unreasonably long time to approve the subcontractor's
proposals and the contractor was unable to continue with the works until
some fifty-eight weeks later. The employer deducted liquidated damages
for the period of delay and the contractor sought to recover the damages
from the subcontractor. The contract contained an extension of time clause
which set out the causes of delay for which an extension of time could be
made, but it did not cover the employer's delay in approving the subcon-
tractor's proposals. It was held that since part of the delay was due to the
employer's default, and since there was no applicable extension of time
provision, the employer could not deduct liquidated damages and he was
left to recover such damages as he could prove flowed from the subcon-
tractor's breach.
More recently in the case of Rapid Building Group Ltd v. Ealing Family
Housing Association Ltd (1984) 2 9 BLR 5, the contractor was prevented
from having full possession of the site on the due date. The contract was
the 1963 edition of the JCT standard form of contract. There was delay
and the works were completed late. The architect extended time for com-
pletion and issued a certificate that the works ought reasonably to have
been completed by the extended date for completion. The employer
deducted liquidated damages for the period after the extended date for com-
pletion until the date when the contractor completed the works. It was held
that the 1963 edition of the JCT form of contract did not provide for exten-
sions of time due to the employer's breach of contract in failing to give
possession of the site in accordance with the terms of the contract and the
employer could not deduct liquidated damages from monies due to the con-
tractor. The 1980 edition of the JCT form of contract includes failure to
give possession of the site as a cause of delay (a relevant event) for which
an extension of time may be granted.
Recent drafting (such as the fourth edition of FIDIC, GC/Works/l, the
seventh edition of ICE and the Singapore Institute of Architects forms of
contract) includes a list of causes of delay for which an extension of time
can be made and there is a 'catch-all' provision intended to cover 'any act
or default of the employer'. It is unlikely that this type of catch-all provi-
sion will enable the employer to cause delay with impunity. Some delays
may well be beyond the contemplation of such a clause and the contractor
may have grounds to determine his employment.
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Even if a contract contains an effective extension of time clause, the

employer's rights to deduct liquidated damages may be extinguished if the
power to extend time for completion is not exercised within the time con-
templated by the contract terms. In Miller v. London County Council
(1934) 151 LT 425, the contract contained the following terms:
'it shall be lawful for the engineer, if he thinks fit, to grant from time to time,
and at any time or times, by writing under his hand such extension of time
for completion of the work and that either prospectively or retrospectively,
and to assign such other time or times for completion as to him may seem
reasonable.'
The contractor completed the works on 25 July 1932 and, on 17 Novem-
ber 1932, the engineer extended time for completion to 7 February 1932
and certified that liquidated damages were payable for the period from 7
February to 25 July 1932. It was held that the extension of time clause
empowered the engineer to look back (retrospectively)at the delay as soon
as the cause of the delay had ceased to operate and to fix a new comple-
tion date 'within a reasonable time after the delay has come to an end' (Du
Parcq, J, quoting from Hudson on Building Contracts, sixth edition at
page 360). The power to grant an extension of time had been exercised
too late and the employer could not rely on the liquidated damages provi-
sion in the contract.
In another case, Amalgamated Building Contractors v. Waltham Holy
Cross UDC [I9521 2 All ER 452, the contract was an RIBA form of con-
tract which contained the following provisions in clause 18:
'If in the opinion of the architect the works be delayed . . . ( i ) by reason of labour
and materials not being available as required . . . then in any such case the archi-
tect shall make a fair and reasonable extension of time for completion of the
works . . .'.
In this case the contractor was delayed owing to non-availability of labour
and during the month prior to the contract completion date he made two
applications for an extension of time which the architect formally acknowl-
edged. The date for completion was 7 February 1949 and the contractor
completed the works in August 1950. In December 1950 the architect
made an extension of time to May 1949. The contractor argued that an
extension of time cannot be made to a date which has passed and there-
fore the extension was given too late. It was held, distinguishing Miller v.
London County Council, that the extension of .time could be made retro-
spectively and the extension was valid.
The different decisions in the Miller and Amalgamated Building Con-
tractors cases are due to several distinguishing matters which are relevant.
In Miller the engineer's decision on extensions of time was final and the
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wording in the two contracts were not the same. Perhaps more importantly,
the cause of delay in Miller was within the control of the employer, whereas
in Amalgamated Building Contractors, the cause of delay was beyond the
control of the employer. In the latter case the delay was continuous, over
a period of several months, thereby making it difficult, if not impossible, to
estimate the length of the delay until the works had been completed. A
detailed explanation of the law as it applies to this subject is given in the
judgement in Fernbrook Trading Co. Ltd v. Taggart [I97911 NZLR 556.
(For an excellent summary of this case, refer to A Building Contract
Casebook by Dr Vincent Powell-Smith and Michael Furmston at page
355.)
Contractors seeking to argue that the contract does not provide for
extensions of time (for delay by the employer), or that an extension of time
was made too late, thereby being invalid, may not necessarily be in a better
position than they might have been by accepting a reasonable extension of
time, valid or otherwise. If the contractor's arguments are successful and
the contract completion date is no longer applicable, the contractor's ob-
ligation is to complete within a reasonable time (time is at large) and the
employer cannot rely on the liquidated damages provision to deduct the
sums stated in the contract. In these circumstances the contractor does not
have all the time in the world to complete the works, nor does he escape
liability for general damages which the employer may suffer as a result of
delay within the control of the contractor. Nevertheless, contractors may
find it attractive to escape from the contractual period and the potential lia-
bility for delay at the rate stated as liquidated damages in the contract on
the basis that the burden of proof shifts from the contractor to the employer.
In Wells v. Army and Navy Co-operative Society (supra), Wright, J, the
trial judge said:
'The defaults were, in my opinion, sufficiently substantial to cast upon the defen-
dants [the employer] the burden of showing that the defaults did not excuse the
delay'
and in Peak Construction (Liverpool) Ltd v. Mckinney Foundations Ltd,
(supra) Salmon, w said:
'If the failure to complete on time is due to fault of both the employer and the
contractor, in my view, the clause does not bite. I cannot see how, in the ordi-
nary course, the employer can insist on compliance with a condition if it is partly
his own fault that it cannot be fulfilled: . . . I consider that unless the contract
expresses a contrary intention, the employer, in the circumstances postulated, is
left to his ordinary remedy; that is to say, to recover such damages as he can
prove flow from the contractor's breach.'
The term time a t large is a principle of English law which may be inap-
propriate in some countries. In many civil law jurisdictions and, for example,
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in South Africa, the principle is recognised but not by that title, namely that
a debtor is excused from performing an obligation on time if his creditor
wrongfully prevents him from doing so.
In Group 5 Building Limited v. The Minister of Community Devel-
opment 1993(3) SA 629 (A), the Plaintiff, Group 5, was delayed arising
from delays in giving variation orders and instructions and unauthorised
suspension orders which constituted, so it was alleged, breaches of the con-
tract by the Defendant.
The extension of time clause, clause 17(ii),contained the standard pro-
vision in regard to delays occasioned 'by any other causes beyond the
contractor's control'. Group 5 contended that the delays arising out of the
alleged breaches of contract fell outside the ambit of clause 17(ii)and as a
consequence time was at large (following strictly English principles of law
and indeed the South African law at that time as provided in the judgement
in Kelly & Hingles Trustees v. Union Government (Minister of Public
Works) 1928 TPD 272).
His Lordship Mr Justice Nienaber said:
'In my opinion the words "or by any other causes beyond the contractor's
control" in clause 17(ii)are wide enough to embrace a wrongful conduct by the
employer or his agent. Such conduct would entitle the contractor to apply for
an extension of time and, if the application is refused, to have the matter tested
in a court of law. In addition, the contractor can recover any losses he may have
suffered as a result of the owner's wrongful conduct by means of an action for
damages. The express terms of the contract accordingly provide for the very
eventuality which the Plaintiff (Group 5) alleges occurred in this instance.'
The essential difference between the South African approach and that
adopted by the English courts is that the latter are prepared to give a much
narrower interpretation to the provisions of the extension of time clauses.
In the Group 5 decision the phrase 'or any other causes beyond the con-
tractor's control' was given a much broader interpretation to include for
breaches by the employer.
The Group 5 decision may also have been influenced by the fact that
'the other causes' complained of by Group 5 were in fact expressly covered
elsewhere and qualified for extensions of time in any event. No doubt Group
5 used this argument to overcome its failure to give notice.
Recent legal decisions indicate that there may be a wind of change. It
may be that the contractor's argument that 'time is at large' if the engineer
or architect fails to grant an extension at the appropriate time is losing
favour (see 7.1, infra).
It is often argued that the employer cannot recover more in general
damages than he would have been able to recover by way of liquidated
damages. It appears from Rapid Building Group Ltd v. Ealing Family
Housing Association Ltd (supra), that if the employer has lost his rights
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to liquidated damages, his claim for general damages may not be limited
by the amount specified in the contract for liquidated damages. This point
was not decided in the Rapid Building case but it must be at least arguable
that this may be the case in certain circumstances.
In Temloc Ltd v. Erril Properties Ltd (1987) 39 BLR 31, the sum
specified for liquidated damages was 'Enil' and the employer sought to
recover unliquidated damages arising out of delay in completion by the con-
tractor. The Court of Appeal decided that by inserting a Enil rate for liqui-
dated damages (to be calculated pursuant to clause 24.2.1 of a 1980 edition
of the JCT form of contract), the parties had agreed that there should be
no damages for late completion. However, in this case the Court of Appeal
took the view that an extension of time which had been made by the archi-
tect after the twelve-week period required by clause 25.3.3 of the contract
did not invalidate the liquidated damages provision and general damages
could not be recovered as an alternative. Accordingly, the matter of the
employer's rights in the event of the liquidated damages provisions being
inapplicable did not have to be considered.
Nevertheless, notwithstanding the Temloc case, it appears likely that
in the event of the contractor successfully arguing that the liquidated
damages provisions are no longer applicable, then he may run the risk of
being liable for general damages in excess of the liquidated damages. On
the other hand, an employer who caused the liquidated damages provision
to be invalidated, for any reason, for the purposes of claiming a higher
amount of general damages than he might have recovered under the con-
tractual provisions would be unlikely to find favour in the courts (see further
commentary on the Temloc case in Chapter 7). This practice would surely
fall foul of the rule of law which prevents a party
- . from taking advantage of
his own wrong, Alghussein ~stablishmentv. Eton College [1988] 1WLR

587.
The law relating to liquidated damages is substantially different in
countries where the law is based on Indian law, for example Cyprus and
Malaysia. The precise differences vary from country to country and perhaps
the situation in Malaysia is most at odds with the established principles of
English law.
The Contracts Act of Malaysia, Section 75, provides for the actual loss
(as a result of delay or other default) to be proved and the right of recov-
ery is limited by the amount of liquidated damages stipulated in the con-
tract, that is the stipulated liquidated damages is a ceiling on the amount
recoverable. There is no room to argue that a plaintiff may recover a
genuine pre-estimate of loss without proof of actual loss: Larut Matang
Supermarket Sdn Bhd v. Liew Fook Yung [I9951 1 M U 375; Song Toh
Chu v. Chan Kiat Neo [I9731 2 M U 206; Woon Hoe Kan & Sons Sdn
Bhd v. Bandar Raya Development Bhd [I9731 1 M U 60.
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1 History of Construction Contracts and Case Law 19
Penalties are not enforceable in English law. Statutory enforcement of

penalties is the exception rather than the rule in international systems of
law. In the absence of such statutory enforcement, various attempts have
been made by contract draftsmen to avoid the general principle that a
penalty is not enforceable by referring to the deduction as 'pre-ascertained
sums by way of liquidated damages'. The difficulty with this remains that in
the event that the amount is out of proportion to the loss actually suffered
by the employer then, irrespective of the description, the sum will be seen
as a penalty and will be unenforceable.
Roman Dutch law embodies the maxim pacta sunt servanda. Contracts
are made to be enforced. The Conventional Penalties Act in South Africa,
Act 15 of 1962, provides that where parties agree upon a sum to be
deducted for each period of delay (day, week or month) for which the con-
tract overran the contractual completion date then, irrespective of whether
the sum was a penalty or otherwise, the parties should be bound by the
terms of their agreement.
The Conventional Penalties Act thereby created statutory enforcement
of penalties prescribed by the contract. The employer is entitled to enforce
the application of penalties through the dispute mechanism or through the
courts.
Another vexed question arises in contracts where the employer intends
to have phased completion and where the form of contract (usually a stan-
dard form) does not deal properly with this issue. In Bramall and Ogden
v. Sheffield City Council (1983) 2 9 BLR 73, the contract incorporated
the 1963 JCT conditions with liquidated damages 'at the rate of £20 per
week for each uncompleted dwelling'. Extensions of time were granted but
the contractor contended that further extensions were due and he disputed
the employer's rights to deduct liquidated damages. The arbitrator awarded
£26 150 as liquidated damages. On appeal it was held that the contract did
not provide for sectional completion and the employer could not deduct liq-
uidated damages.
In the case of Philips Hong Kong Ltd v. The Attorney General of
Hong Kong (1990) 5 0 BLR 122, the plaintiffs followed a similar argument
to the one put forward in Bramall and Ogden v. Sheffield City Council.
It was argued that a minimum figure for liquidated damages together with
a provision for a reduction in liquidated damages in the case of sectional
completion amounted to a penalty. The argument succeeded in the High
Court of Hong Kong, but was overturned on appeal in Philips Hong Kong
v. The Attorney General of Hong Kong (1993) 6 1 BLR 41 (P.C.). It is
now unlikely that liquidated damages provisions will be construed as penal-
ties merely on arithmetical grounds.
It will be seen from the cases referred to that extensions of time and liqu-
idated damages provisions in contracts merit careful drafting and that the
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interpretation placed on many provisions is open to dispute at almost every

turn. The courts have generally taken a very strict view and the contra pro-
ferentem rule has usually been applied (that is, the clause is usually
construed against the interests of the party putting forward the clause and
seeking to rely on it): Peak Construction (Liverpool) Ltd v. Mckinney
Foundations Ltd (supra), and Bramall and Ogden v. Shefield City
Council (supra).The contra proferentem rule will not necessarily apply to
contracts using standard forms such as the ICE or JCT forms of contract:
Tersons Ltd v. Stevenage Development Corporation (1963) 5 BLR 54.
The rule may be applied to particular amendments to a standard form
imposed by the employer.
Extensions of time have perhaps been at the forefront of many disputes,
most of which could have been avoided by care and attention to the matters
which have been considered by the courts over many years. Later chapters
will deal with some of these matters in greater detail.
1.5 Claims for Additional Payment: Damages
Whenever there is delay, disruption or a change in circumstances or in the

scope of the work, there is bound to be an effect on expenditure or income,
either for the contractor or for the employer, or both. Subcontractors may
also be affected. In some cases the risk is borne by the contractor (or sub-
contractor) and in others it may be borne by the employer. Where there is
a breach of contract, or where there is a contractual provision to claim loss
or damage, one party may have a claim against the other.
Claims relating to ground conditions are a regular feature in many build-
ing and civil engineering contracts. Numerous disputes have arisen as
to the responsibility for information provided by the employer and upon
whom the risk lies for unforeseen ground conditions. In Boyd & Forrest v.
Glasgow S W Railway Company [I9141 SC 472, the tendering contrac-
tors had only two weeks in which to tender for the work. The employer
provided access to some information obtained by way of site investigations.
The contractors claimed compensation for the losses caused by ground con-
ditions which were not in accordance with the soil investigation informa-
tion provided by the employer. It was held that the contractors were entitled
to rely on the information provided by the employer and that the employer
could not be protected against his own misrepresentation.
If employers were able to place the risk entirely on the contractor, the
likelihood would be that tender prices would be much higher than if the
risk was on the employer. The ICE and FIDIC forms of contract, being
forms generally applicable to civil engineering contracts where a consider-
able amount of work is carried out in the ground, have provisions which
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recognise the problems associated with the uncertainty of ground condi-

tions. Clauses 11 and 12 of these forms of contract have, in various edi-
tions over the years, provisions such as (quoting from the fifth edition of
the ICE form of contract):
'11 (1)The Contractor shall be deemed to have inspected and examined the Site
and its surroundings and to have satisfied himself before submitting his tender
as to the nature of the ground and sub-soil (so far it is reasonably practicable
and having taken into account any information in connection therewith
which may have been provided by or on behalf of the Employer) the form and
nature of the Site, the extent and nature of the work . . . and in general to have
obtained for himself all necessary information (subject as above-mentioned) as to
the risks contingencies and all other circumstances influencing or affecting his
tender. '
'12 (1)If during the execution of the Works the Contractor shall encounter
physical conditions (other than weather conditions or conditions due to weather
conditions) or artificial obstructions which conditions or obstructions he consid-
ers could not reasonably have been foreseen by an experienced contractor and
the Contractor is of the opinion that additional cost will be incurred which would
not have been incurred if the physical conditions or artificial obstructions had
not been encountered he shall if he intends to make any claim for additional
payment give notice to the Engineer. . .'
[The contract goes on to provide for an extension of time and additional
payment.]
The above provisions appear to be a fair and reasonable attempt to
ensure that contractors do not take the risk of unforeseen ground condi-
tions and that employers are not exposed to unlimited claims. Notwith-
standing these provisions, differences of opinion, ambiguity and deliberate
tendering tactics have continued to provide an abundance of disputes and
the results have often been against the interests of employers. Attempts
have been made by the employer to escape responsibility for information
on ground conditions provided by him.
In Morrison-Knudsen International C o Inc and Another v. Common-
wealth of Australia (1980)13 BLR 114, the employer disclaimed respon-
sibility for the site investigation which he provided. It was held that the
contractor was entitled to rely on the information provided and that the
provisions in the contract were not an effective disclaimer. There may be
a duty of care on the part of the employer in providing such information
and the contractor may have a claim for misrepresentation: Howard
Marine & Dredging v. Ogden (1978)9 BLR 34.
Building contracts, by their nature, tend to be less vulnerable to claims
involving ground conditions, but as can be seen from Bryant & Sons Ltd
v. Birmingham Saturday Hospital Fund (supra),claims do arise from time
to time.
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The forms of contract in civil engineering recognised the concept of

claims at an early stage and express provisions for additional payment in
certain circumstances were a feature in these forms. The ICE conditions of
contract use the term 'claim' whereas the RIBA and JCT forms of contract
generally do not. Early RIBA forms of contract did not expressly provide
for any additional payment over and above the contract rates except where
it was appropriate under the variation clause. In the late 1920s and early
1930s the RIBA Model Form of Contract in general use contained no
express provisions for 'delay and disruption claims' unless they could be
dealt with as variations. Nevertheless it appears that architects and quan-
tity surveyors of the time were of the opinion that there was power to make
payment to the contractor without a variation being ordered. Horace W.
Langdon Esq., F.S.I., wrote in House and Cottage Construction (supra):
'EXTRAORDINARY CIRCUMSTANCES
At times during the progress of work, certain happenings may take place which
involve the contractor in a much greater expense than he had anticipated, such
as, for instance, not being given a clear site, as may have been first promised.
Under such circumstances, it is obvious that the cost per unit of the particular
work affected must be greater than would have been the case had he had
a clear run. Such a matter cannot be dealt with by the quantity surveyor,
whose business it is to ascertain actual measurements of work executed and to
value same as previously described. Extraordinary happenings of the kind
mentioned would be dealt with by the architect. If the contractor disagrees with
the architect's ruling, he may have recourse to the clause appertaining to
arbitration.'
The RIBA form of contract referred to by Langdon did not contain provi-
sion for the extra payment which appears to be contemplated, nor did it
provide for an extension of time for the breach of contract which was used
as the example' to explain 'extraordinary circumstances'. Misunderstanding
of forms of contract and the application of the law persists today and is
one of the reasons for disputes and actions for negligence.
The 1939 RIBA form of contract did not contain any provisions intended
to deal with failure to give possession of the site or other acts of preven-
tion by the employer, but it did contain new express provisions for addi-
tional payment in clause 1:
'If compliance with Architect's Instructions involves the Contractor in loss or
expense beyond that provided for in or reasonably contemplated by this con-
tract, then, unless such instructions were issued by reason of some breach of this
contract by the Contractor, the amount of such loss or expense shall be ascer-
tained by the Architect and shall be added to the Contract Sum.'
Provisions of the type quoted above are to be found in later editions of the
RIBA and JCT forms of contract. Bearing in mind the wide rules for valuing
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variations where there are changes in circumstances, this type of provision

appears to be intended to deal with the consequential effects of architects'
instructions on other work (which work may not in fact have been varied
by an instruction). This type of claim which involves delay and/or disrup-
tion to the regular progress of the works is troublesome for a variety of
reasons that will be dealt with in later chapters.
One important ingredient of delay claims is often interest or finance
charges. As a general rule this head of claim did not succeed unless it could
be dealt with as special damages. The most important cases which deal
with this matter came before the courts fairly recently and are discussed
in later chapters. However, as modern disputes sometimes take years
to settle, or to be decided, interest on the claim itself is often the largest
single element of it. Where interest is awarded in favour of the contractor,
a nominal amount over and above the bank rate is usually the measure of
damages. The benefit to the employer however is often the return earned
by 'turning the money over several times per annurn' which, even in a
moderately profitable business, may be up to ten times the amount of inter-
est awarded. This level of damages is not contemplated, but it is perhaps
difficult to reconcile this fact with the 'absolute rule of law and morality
which prevents a party taking advantage of his own wrong whatever
the terms of the contract: Alghussein Establishment v. Eton College
(supra).
An interesting feature of the 1939 edition of the RIBA form of contract
was an optional clause (24(d)[A])which provided for the retention fund to
be deposited in a joint account in a bank named in the appendix to the
contract. The interest which accrued was for the benefit of the employer,
but as this was small compared with the return which could be gained by
using the sum retained in a profitable business, the incentive for unscru-
pulous employers to seek to delay the release of the retention fund was
reduced.
The more recent contracts issued by the JCT (JCT63 and JCT80)
provide for the retention to be placed in a trust fund. This will provide a
level of protection for contractors and nominated subcontractors in the
event of the employer's liquidation and it will prevent employers using reten-
tion funds as working capital. At the outset of every contract, contractors
should ask employers for details of the trust fund and ensure that all reten-
tions are held in the said fund.
A number of recent cases have shown that contractors are being
more cautious and are insisting on retentions being placed in a trust
fund. If employers resist, the courts may issue an injunction to compel
them to place the'retention fund in a separate account: Wates Con-
struction (London) Ltd v. Franthom Property Ltd (1991) 53 BLR
23.
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1.6 Rolled-up Claims
It is generally a requirement that the party making a claim should be able

to illustrate that the damages claimed were caused by an event or circum-
stance which was a breach of contract or that it was a matter for which
there was an express provision in the contract to make a payment there-
for. It is not surprising that in complex building and civil engineering con-
tracts, where many delays are occurring at the same time, it is difficult to
allocate any particular element of damages to the appropriate event or cir-
cumstance which caused the damages claimed. In order to deal with this
difficult problem, it was no doubt a common practice to formulate a general
claim in which all of the damages which arose as a result of many interre-
lated causes were pursued as a 'rolled-up' claim.
This practice was challenged in J. Crosby & Sons Ltd v. Portland
Urban District Council (1967) 5 BLR 121. In this case there had been
some forty-six weeks' overall delay to completion due to various causes
of delay of which thirty-one weeks had been held by the arbitrator as
being attributable to causes of delay for which the contractor was entitled
to compensation. The arbitrator proposed to award a lump sum to com-
pensate for the delay of thirty-one weeks and the employer appealed
claiming that the arbitrator should arrive at his award by determining the
amounts due under each individual head of claim. The form of contract was
the ICE fourth edition. It was held that, provided the arbitrator did not
include an element of profit in the amount awarded, and that there was no
duplication, then if the claim depends on 'an extremely complex interac-
tion in the consequences of various denials, suspensions and variations, it
may well be difficult or even impossible to make an accurate apportion-
ment of the total extra cost between the several causative events', the
arbitrator was entitled to make a lump sum award for the delay and
disruption.
This type of claim appeared in the case of London Borough of Merton
v. Stanley Hugh Leach Ltd (1985)3 2 BLR 51, where the form of con-
tract was the 1 9 6 3 edition of JCT. The judge was persuaded to allow a
rolled-up claim on the basis of the findings in the Crosby case.
In another case, Wharf Properties Ltd and Another v. Eric Cumine
Associates, and Others (1988) 4 5 BLR 72, (1991) 5 2 BLR 1 PC, the
employer (Wharf) pursued a rolled-up or global claim against his architect
(Cumine) which relied on the same premise as both the Crosby and Merton
cases. The Court of Appeal of Hong Kong did not accept the claim. On
the face of it, there appears to be an anomaly which places doubt on the
validity of this type of claim. However, in this case, there appears to have
been a lack of evidence to link the damages claimed with the numerous
alleged defaults of the architect. The Wharf case should not be regarded
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as the death knell for all claims of this kind. It should be noted that the
judge in a subsequent case, Mid-Glamorgan County Council v. J
Devonald Williams & Partner [I992129 ConLR 129, considered the pre-
vious cases involving rolled-up claims (including the Wharf case) and held
that, provided the circumstances were appropriate, such a claim could
succeed.
Global claims were again scrutinised in Imperial Chemical lndustries v.
Bovis Construction Ltd and Others (1993) 32 ConLR 90, where the
plaintiff was ordered to serve a Scott Schedule containing:
the alleged complaint;
a the defendant against whom the claim was made;
which clause in the contract had been breached;
a the alleged failure consequences of such breach.
In GMTC Tools & Equipment Ltd v. Yuasa Warwick Machinery Ltd
(1995) 7 3 BLR 102, the use of a Scott Schedule was raised again. The
Judge had ordered that a Scott Schedule should be drawn up setting out
the details and effects of each of the plaintiff's complaints.
The plaintiff had difficulty in preparing the Scott Schedule and failed to
comply with the Unless Order. The matter was eventually dealt with on
appeal where Lord Justice Leggatt ruled that a Judge is not entitled to pre-
scribe the way in which the quantum of damage is pleaded and proved or
to require a party to establish causation and loss by a particular method.
His Lordship said:
'I have come to the clear conclusion that the Plaintiff should be permitted to for-
mulate their claims for damages as they wish, and not be forced into a strait-
jacket of the Judge's or their opponent's choosing.'
In British Airways Pension Trustees Ltd v. Sir Robert McAlpine and
Son (1995) 7 2 BLR 26, Judge Fox Andrews had ordered that the claim
be struck out and the action dismissed on the grounds that the plaintiffs
failed to properly particularise their claim. However, this decision was over-
ruled by the Court of Appeal where Lord Justice Savill said:
'The basic purpose of pleadings is to enable the opposing party to know
what case is being made in sufficient detail to enable that party properly to
answer it. To my mind, it seems that, in recent years, there has been a tendency
to forget this basic purpose and to seek particularisation even when it is not
really required. This is not only costly in itself, but is calculated to lead to delay
and to interlocutory battles in which the parties and the Courts pore over endless
pages of pleadings to see whether or not some particular points have or have
not been raised or answered, when in truth each party knows perfectly well
what case is made by the other and is able properly to prepare to deal with it.
Pleadings are not a game to be played at the expense of citizens nor an end in
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themselves, but a means to the end, and that end is to give each party a fair
hearing.'
In Amec Building Ltd v. Cadmus Investment Co Ltd [I997151 ConLR
105 the judge appears to have taken the view that each case will be dealt
with on its merits without laying down principles as to whether global claims
will or will not be accepted.
In summary, in spite of numerous recent cases, it appears that little has
changed since the principles laid down in Mid-Glamorgan County Council
v. J. Devonald Williams & Partner. In practice, global claims should be
a last resort, not just because it is difficult to particularise a number of
claims but because particularisation is impracticable or impossible owing to
complex entanglement with numerous overlapping and/or concurrent
matters.
1.7 Notice
Most building and civil engineering contracts contain provisions which

require the contractor to give notice of delay or of its intention to claim
additional payment under the terms of the contract. It is usual for the con-
tract to specify that notice should be given within a reasonable time, but
other terms such as 'forthwith', or 'without delay' or within a specified
period of the event or circumstance causing delay or giving rise to the claim
may be used. The courts have had to consider the meanings of various
terms and they have often been faced with the argument that the giving
of notice was a condition precedent to the contractor's rights under the
contract.
The ICE conditions of contract generally opt for a specified period within
which notice should be given. Two cases involving the ICE conditions of
contract are helpful in deciding if notice is a condition precedent.
In Tersons Ltd v. Stevenage Development Corporation (supra), the
engineer issued a variation instruction for the first contract on 24 July 1951.
The contractor carried out the varied work and gave notice of his intention
to claim on 3 December 1951. In the second contract the engineer issued
an instruction on 24 August 1951 and the contractor gave notice of his
intention to make a claim on 6 February 1952. Work on the second con-
tract commenced on 12 March 1952. The contractor did not submit his
claims on a monthly basis.
The Court of Appeal was asked to decide whether the contractor's
notices complied with the provisions of sub-clauses 52(2)and 52(4)of the
second edition of the ICE conditions of contract. Sub-clause 52(2) required
the contractor to give notice of his intention to claim a varied rate 'as soon
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after the date of the Engineer's order as is practicable, and in the case of
additional work before the commencement of the work or as soon there-
after as is practicable.'
Sub-clause 52(4) provided for claims to be made monthly and 'no claim
for payment for any such work will be considered which has not been
included in such particulars. Provided always that the Engineer shall be enti-
tled to authorise payment to be made for any work notwithstanding the
Contractor's failure to comply with this condition if the Contractor has at
the earliest practical opportunity notified the Engineer that he intends to
make a claim for such work.' It was held that clause 52(2) only required a
notice in general terms that a claim was being made and that clause 52(4)
only related to payment in monthly certificates. The proviso in clause 52(4)
which empowered the engineer to authorise payment, and the provisions
of clauses 60, 6 1 and 62, which contemplated that the contractor's rights
remained open until the final maintenance certificate had been issued were
sufficient to show that the contractor had complied with the contractual
provisions.
In Crosby v. Portland UDC (supra),the works were suspended by order
of the engineer and the contractor did not give notice within the period
specified in sub-clause 40(1) of the fourth edition of the ICE conditions of
contract which contained the proviso 'Provided that the Contractor shall
not be entitled to recover any extra cost unless he gives written notice of
his intention to claim to the Engineer within twenty-eight days of the Engi-
neer's order.' It was held that since the contractor had not given notice
within the specified period the claim failed.
The distinction between the Tersons and the Crosby cases is best
explained in Bremer Handelsgesell-Schaft M. B. H. v. Vanden Avenne-
lzegem F! V B. A. [I9781 2 Lloyds LR 109, in which Lord Salmon said:
'In the event of shipment proving impossible during the contract period, the
second sentence of cl. 21 requires the sellers to advise the buyers without delay
and the reasons for it. It has been argued by buyers that this is a condition prece-
dent to the seller's rights under that clause. I do not accept this argument. Had
it been intended as a condition precedent, I should have expected the clause to
state the precise time within which the notice was to be served, and to have
made plain by express language that unless notice was served within that time,
the sellers would lose their rights under the clause.'
In the Tersons case neither of the ingredients stated by Lord Salmon

were present, whilst in the Crosby case both ingredients were present (a
precise time and clear language to bar a claim if notice was not served
accordingly). If notice is to be a condition precedent, it is important to
take account of these essential requirements when drafting the relevant
provisions.
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Very little change has been made to subsequent editions of the ICE and
FIDIC conditions of contract. Both ICE and FIDIC relaxed the conditions
precedent with respect to suspension. However, the 1999 FIDIC contracts
(Red, Yellow and Silver Books) now contain strict provisions to give notice
within twenty-eight days for all claims (sub-clause20.1). The giving of notice
in accordance with this sub-clause (but not the requirements to provide par-
ticulars and accounts of claims) is a condition precedent to the contrac-
tor's rights to claim for delay or additional payment (see 4.9, infra).
The requirements to give notice in RIBA and pre-1980 JCT standard
forms of contract were less stringent than the requirements in the ICE
conditions. Notice of delay under the extension of time clause (clause 2 3
in the 1963 edition of JCT) is required to be given by the contractor 'forth-
with'. The case of London Borough of Merton v. Stanley Hugh Leach
Ltd (supra) dealt with a host of issues, one of which involved extensions
of time if the contractor fails to give written notice upon it becoming rea-
sonably apparent that the progress of the works is delayed. It was held that,
if the architect was of the opinion that the progress of the works is likely
to be delayed beyond the completion date by one of the specified causes
of delay for which there was power to extend time for completion of the
works, the architect owes a duty to both the employer and the contractor
to estimate the delay and make an appropriate extension of time. The
giving of notice of delay by the contractor was not a condition precedent
to an extension of time. However, failure on the part of the contractor to
give notice in accordance with the contract was a breach of contract and
that breach may be taken into account when considering what extension
should be made.
1.8 Interference by the Employer
Most building and civil engineering contracts provide for the architect or
engineer to be responsible for granting extensions of time and certifying
payment of sums due under the contract. In carrying out these duties the
architect or engineer is required to act fairly and impartially and the
employer is not permitted to influence or obstruct them in the performance
of their duties. Several early cases show that the courts have taken a con-
sistent view in cases where the employer has sought to influence the person
appointed by him to certify or value in accordance with the contractual pro-
visions, even if there was no fraud on the employer's part: Hudson's Build-
ing and Engineering Contracts, tenth edition at pp 460-463. In the case
of Morrison-Knudsen v. B.C. Hydro & Power (1975) 85 DLR 3d 186,
all of the contractor's requests for an extension of time were rejected and
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no extensions of time which were due to the contractor were granted. The
contractor accelerated the progress of the work and the project was com-
pleted shortly after the contractual date for completion. It was subsequently
discovered that the employer was instrumental in securing an agreement
with a government representative that no extensions should be granted.
The Court of Appeal of British Columbia held that the contractor was enti-
tled to recover the acceleration costs which he had incurred as a result of
the breach of contract. Further, the contractor would have been entitled to
rescind the contract and sue for payment in quantum meruit if he had
been aware of the breach.
In a recent Scottish case, the contractor claimed to be entitled to inter-
est on a sum which the contractor claimed to be due but which had not
been certified by the engineer. The contract was the ICE fifth edition which
provided for interest to be paid in the event of failure to certify (clause
60(6)).The Judge held that the clause did not allow for interest if the engi-
neer certified sums which were less than the sums which the engineer
ultimately certified as being due. If the engineer had certified what
in his opinion was due at the time, it could not be construed as a failure
to certify.
However, it was discovered that the employer had instructed the engi-
neer that under no circumstances should he certify more than a specified
sum without the employer's permission. The engineer appeared to ignore
the employer's instructions and prepared a draft letter to the contractor
indicating that a sum exceeding the employer's ceiling was due. The
employer sacked the engineer. The Judge held that the employer's inter-
ference was sufficient to deny effect to the engineer's certificates in which
case there must have been a failure on the part of the engineer to certify
within the meaning of clause 60(6) of the contract. In these circumstances
the contractor was entitled to interest: Nash Dredging Ltd v. Kestrel1
Marine Ltd (1986)SLT 62. [This decision, on the general matter of inter-
est payable in accordance with the provisions of clause 60(6) of the ICE
conditions, should not be regarded as being applicable in England. See
Morgan Grenfell v. Sunderland Borough Council and Seven Seas Dredg-
ing Ltd, Secretary of State for Transport v. Birse-Farr Joint Venture and
other cases, (infra) Chapter 5.1
1.9 Claims Against Consultants
It has long been held that if a consultant acts negligently in the performance
of his duties, and the employer suffers loss as a result, then the employer
would have a claim for damages against the consultant. This was held to
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be the case in Sutcliffe v. Thackrah and Others (1974) 4 BLR 16. It

appeared from the judgement in this case that the contractor may have
a claim for damages against the consultant.
Several cases involving claims by contractors against consultants
have been reported and the industry seemed to have a clear picture of the
law in this regard when the contractor in Michael Salliss & Co Ltd v.
E. C. A. Cali1 and William E Newman & Associates [I989113 ConLR
68, successfully claimed damages arising out of the architect's failure to
exercise properly the duty of care owed to the contractor. The law, as it
appeared after the Michael Salliss case, was turned upside down in Pacific
Associates Inc and Another v. Baxter and Others (1988) 44 BLR 33.
In this case the Court of Appeal rejected the contractor's claim for damages
arising from the engineer's negligence. The contractor had settled with
the employer and sought to claim against the engineer on the grounds
that:
'By their continual failure to certify and by their final rejection of the claims the
engineers acted negligently and alternatively were in breach of their duty to act
fairly and impartially in administering the contract.'
As it now stands, contractors are unlikely to succeed in claims for damages
against consultants if the claim is one which the contractor can make against
the employer. The situation may be different if there is no arbitration clause
in the contract.
1.10 The Future
The law relating to construction contracts has evolved rapidly in recent years
and it looks set to continue at a similar pace in the future. Recent cases
have put new interpretations on some aspects of the law but many grey
areas still exist. The wide range of new or revised forms of contract will
bring with them new problems that will need resolution. An increasing
awareness of contract law and its application in modern contracts will be
in evidence and new contractual provisions will be drafted to deal with the
decisions of the courts. A considerable effort needs to be made in the direc-
tion of contracts administration, monitoring progress, claims formulation
and presentation, and this is likely to be evidenced by the ever increasing
number of seminars and training courses on the subject.
Resolution of disputes has become an increasingly costly exercise where
the costs of arbitration are often no less than the costs of litigation. Pro-
cedures, extensive pleadings, tactics and joining of several parties have been
the cause of escalating costs of managing an arbitration. The use of Alter-
native Dispute Resolution (ADR) is bound to find favour with all sides of the
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industry if there is a willingness to find better and cheaper means of set-

tling disputes.
The end of the 1990s saw several changes in UK legislation. In par-
ticular, the Housing Grants, Construction and Regeneration Act 1996 (The
Construction Act) incorporated (inter alia) mandatory provisions for reso-
lution of disputes by adjudication (see 8.4, infra).
The Construction Act applies to all construction contracts made in
writing except for the following types of work:
extraction of oil, natural gas or minerals;
plant where the primary activity is plant and machinery for pharmaceu-
ticals, gas, oil, food and drink, nuclear processing, power generation and
water treatment;
manufacture or delivery of components, equipment and materials, plant
or machinery - except where the contract also provides for the installa-
tion of the component equipment or materials;
making, installing and repair of artistic works;
domestic property with a residential occupier.
The New Engineering Contract (NEC), now reissued as the Engineering
and Construction Contract, provides for adjudication and standard UK
forms of contract have followed suit. Internationally, all four of the 1999
Editions of the FIDIC International Contracts provide for dispute resolution
by a Dispute Adjudication Board which may comprise a single member or
three members.
Whilst these moves towards resolution of disputes by adjudication are
likely to improve cash-flow as a result of much earlier decisions, and also
reduce the costs of settling disputes, it is likely that alternative methods will
continue (Chapter 8 , infra).
What may become evident is a potential battle between FIDIC contracts
and NEC in the international arena. The NEC has been in use since the
mid 1990s and has proved to be successful in the UK and as far afield as
South Africa and Thailand where efficient management and fewer disputes
are evident. The NEC encourages co-operation between all members of the
construction team (taking on board many of the recommendations of the
report Constructing the Team, published under the chairmanship of Sir
Michael Latham (The Latham Report)). On the other hand, the new FIDIC
conditions have continued to emphasise and tighten up the contractual
machinery regarding notices and claims.
By way of example, the NEC requires the contractor or the employer's
project manager (as the case may be) to give the other an early warning of
any matters which may increase the price, delay completion or impair the
performance of the works. For example, if the project manager is aware
of any design delay on behalf of the employer, after giving the contractor
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an early warning of the problem, both parties can put their heads together
to find the best possible solution which may involve rescheduling some of
the work (very often at no extra cost). If the contractor is aware of a poten-
tial delay, such as late delivery of equipment, then following an early
warning notice, both parties try to resolve the problem which may include
the authorisation of alternative equipment. Properly used, these useful pro-
visions may save time and money for both parties and avoid unnecessary
delay and/or claims for additional payment. The employer also has a better
chance of keeping the project on schedule.
The 1999 FIDIC Red, Yellow and Silver Books, intended for use on
major international contracts (generally exceeding US$500 000.00), only
provide for an early warning to be given by the contractor to the employer.
There appears to be no machinery for the employer to respond to an early
warning by the contractor by way of a solution in the best interests of both
parties. By way of contrast, in the Green Book, its contract for smaller
works (generally less than US$500000.00), FIDIC goes part of the way to
improve the matter by stating that both the employer and the contractor
shall give an early warning. Unfortunately, the contract only provides for
the contractor to '.. . take all reasonable steps to minimise these effects.'
What are the employer's obligations?
It remains to be seen if co-operation (NEC) wins the day or if adversity
(FIDIC) continues to stay in front in international contracting. No doubt
the major funding agencies, such as The World Bank, will influence the
outcome.
The Single European Market and the changes which have occurred in
the 1980s and 1990s have lead to greater flexibility in contracting. Foreign
firms often compete against British firms for work in the UK, and British
firms are equally keen to compete in mainland Europe. There is still a long
way to go. Harmonisation of products and standards is well advanced but
differences in legal systems and forms of contract have not allowed any sig-
nificant harmonisation in this area. Perhaps the NEC and FIDIC contracts
will help to change the face of domestic contracting throughout Europe and
that the days of having numerous different standard forms of contract in
the UK will disappear. The NEC is already well established in the UK and
overseas and there are no reasons why FIDIC contracts should not be used
in the UK, France or Germany as a domestic contract. The NEC and FIDIC
contracts go a long way to providing a solution to almost any type of con-
tract under any contractual arrangements, thereby substantially satisfying \
\
the recommendations in the Latham Report (and in the Banwell Report of
1964)- that is, one form of contract for all types of building and civil engi- '
neering is desirable.
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Choice of Contracts
2.1 The First Steps
There are three main categories of client who require the construction of,
or alterations, or extensions to, a building or civil engineering project. The
first category consists of clients who embark upon a building or civil engi-
neering venture only once or perhaps a few times. The second category
consists of clients who regularly have the need to refurbish, alter or expand
existing premises or develop new projects in the course of their business.
The third category comprises a variety of speculative developers who con-
struct projects for sale or lease.
Clients who embark upon any construction venture for the first time are
often faced with a number of alternative routes but usually the first stop will
be at the office of a qualified architect or engineer. For the majority of pro-
jects this approach may be sufficient. Most professional firms of architects
and engineers are well versed in the use of standard forms of contract and,
unless the client has unusual requirements, a standard form of contract will
be available to suit most purposes. They are, however, not without their
pitfalls and some architects and engineers fail to provide the necessary
advice which may make the difference between ultimate client satisfaction
and a potential claim for professional negligence.
Whether it is an architect, engineer, quantity surveyor, solicitor or a
lawyer specialising in construction contracts, the best advice is usually given
by someone who has had 'hands on' experience in administering or man-
aging contracts and is well versed in contract law, including all of the recent
developments in case law which affect the interpretation and application of
standard forms of contract. An unamended standard form of contract may
be more appropriate than a masterful piece of legal drafting which fails to
take account of practical reality and commercial practice. In most cases a
good contract will comprise the appropriate standard form suitably
amended to rectify its deficiencies and incorporating reasonable client's
requirements.
Clients who are familiar with the pitfalls of contracting often have their
own amendments for use with a standard form or they may have a tailor-
made form of contract to suit their own requirements. This is a step in the
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right direction but recent cases in the courts have shown that many amend-
ments to tried and tested standard forms of contract, and some provisions
in hybrid forms of contract, fail to contain the standard of clarity necessary
to ensure that the draftsman's intentions are understood. The application
of the 'con tra-proferentern rule' and other well established principles in
English law may assist contractors when the terms of the contract are
decided in the courts.
The criticism of contractual provisions introduced by major corporations
and public clients suggests that some of them should approach the prob-
lems of contracting with equal caution to first time venturers. The vast
sums of money which may be at stake merit special attention to the con-
tract conditions and one of the first steps which ought to be taken by any
client embarking on a major project should be to obtain expert professional
advice from someone who is not a member of its own organisation. If
this is done, the incidence of provisions which may appear to be in the
client's interests, but which are likely to have the opposite result, may be
reduced.
Some clients may be advised to proceed on the basis of an outline design
brief and contractors may be invited to tender for the design and con-
struction of the project. Independent advice is essential at all stages if this
is to be adopted. If the client has confidence in a particular contractor, it
may choose to go directly to the contractor to negotiate for the design and
construction of the project. Only in exceptional circumstances should a
client contract for work in this manner without the guidance of an inde-
pendent professional throughout the contract.
2.2 Clients' Objectives

The principal objectives of any client will be to have the project completed
on time, within budget and to an appropriate standard of design, work-
manship and materials. The priority or emphasis placed on these objectives
will depend on a number of factors. Cost or time may determine the scope
for design and specification for the work.
In view of the commercial pressures to minimise finance costs and to
obtain revenue at the earliest possible date, priority may have to be given
not only to a method of construction which is conducive to speed of erec-
tion, but to 'lead-in' times, phasing of design and construction, phased com-
pletion of the project, design by contractor and subcontractors, installation
of client's equipment and many other factors depending on the complex-
ity of the project. Major subcontractors or packages of work may have to
be settled in advance of selection of the principal (or main) contractor. If a
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Choice of Contracts 35
client has a generous budget, he may insist on the best quality and design
whilst cost and time are secondary.
Whatever the client's objectives it is important to set out a master pro-
gramme, showing the various anticipated design and construction phases,
at an early stage. This may have a bearing on the type of contracting
methods to be used and should not be overlooked. The most common
causes of construction delay claims stem from insufficient time allowed for
design and commencing on site before sufficient design and detailing has
been completed.
2.3 Contracting Methods
The most common method of contracting is where a contractor undertakes

to complete the project for a lump sum according to the design prepared
by an architect or engineer at the outset. This 'traditional' method of con-
tracting envisages the design being complete subject only to explanatory
details and limited provisional items. Any change to the original design will
be dealt with by way of a variation. The size and complexity of the project
may determine whether or not bills of quantities are to be used. In build-
ing contracts the bills of quantities are not generally subject to remeasure-
ment (except for correction of errors in the quantities). In civil engineering
it is generally accepted that the design may be dependent on factors outside
the control of the employer (ground conditions) and the contract is subject
to remeasurement.
This method of contracting, by its nature, contemplates substantial com-
pletion of the design by the designer at tender stage. That is not to say that
every detail has been drawn. It envisages issuance of details which do not
change the original design, but merely explain more fully what is shown
on the contract drawings. In the normal course of events, provided the
designer had considered the details necessary to make the overall design fit
together, explanatory drawings should not constitute a variation to the orig-
inal design.
It is often the case that some critical aspects of design cannot be prop-
erly represented on a drawing before the designer has drawn the details.
This is fundamental drawing practice. Because of pressure to get tender
documents together at the earliest possible stage, too many contracts get
off to a bad start due to insufficient attention to detail before invitations
to tender. in short, this type of contract envisages a design phase which
is almost complete before the construction stage commences, and the
only design to be done after commencement of construction is of an
explanatory nature and variations to the original design for which there is
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OWLINE
ezzF/7m
TENDER DRAWINGS
C / / / / / ~ r / m
WORKING DRAWINGS DETAILS
e z z z z z a ~ ~ r n e a
TENDER DOCUMENTS
AWARD
-1-
TENDER CONSTRUCTION
TOT& DESIGN PERIOD TOTAL CONSTRUCTION PERIOD
Figure 2.1 Traditional contracting
machinery to adjust the contract sum and/or the contract period (see Figure
2.1).
Support for the view that a lump sum contract should be designed in all
its essential elements at tender stage is found in The Banwell Report (The
Placing and Management of Contracts for Building and Civil Engi-
neering Work, HMSO, 1964). The JCT standard forms of building con-
tract used for this method of contracting clearly contemplate the design
being substantially, if not wholly, complete at tender stage. The recitals of
the JCT forms expressly state that the employer 'has caused Drawings and
Bills of Quantities showing and describing the work to be done to be pre-
pared by. . . .' Clause 1.3 of JCT80 defines these Drawings as the Con-
tract Drawings, and clause 2.1 requires the contractor to 'carry out and
complete the Works shown on the Contract Drawings. . . .'
It has long been an accepted practice, and provided for in most forms
of contract, that some work may not be fully designed at tender stage. This
is usually dealt with by provisional sums or provisional quantities. In recent
years the proportion of work covered by provisional items has increased
beyond that for which this type of contract was intended. In some cases as
much as forty per cent of the contract sum has been made up of provi-
sional items, leaving the contractor unsure as to the scope of the work and
the employer without a realistic budget for the project.
Other forms of abuse include the use of provisional sums under the guise
of PC (Prime Cost) Sums. Very often the prime cost sum is no more than
a provisional sum, whereas on the strict interpretation of the contract, a
prime cost sum should be a reasonable estimate based on a design which
was in existence at tender stage. This will be dealt with in more detail in
later chapters.
Some practitioners are bent on using a form of contract intended for
use in the above circumstances (such as JCTSO), when it was known at the
outset that the design stage would extend well into the construction phase.
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This practice may work if the designer co-ordinates the design into a master
programme which is synchronised with the contractor's construction pro-
gramme. However, there are many risks, such as under-estimation of 'lead-
in' times for procurement, limitation on the flexibility in the contractor's
programme (in the event that the contractor needs to change sequence for
his own convenience) and an unacceptable incidence of variations caused
by lack of foresight. All of these factors may lead to late completion and
claims for compensation of one kind or another.
Another disadvantage of traditional contracting is that it does not usually
permit the contractor to have an input at design stage. Many contractors
are able to contribute to the design so that savings in cost and time can
be made for the benefit of the employer. Sometimes contractors offer
alternative designs, but very often this is so late in the day that it places
more pressure on the design team to take account of the contractor's pro-
posals in the overall design. Variants on the traditional forms of contract
include an element of design by the contractor such as JCT80 used with
the 'Contractor's Designed Portion Supplement (CDPS) 1981 (revised
1998)'.
It is becoming increasingly popular for employers to move in the direc-
tion of design and build or turnkey contracts. A degree of competition may
be introduced by a comprehensive design brief and a schedule of the client's
requirements. It is important to ensure that firms bidding for work of this
nature have a sound track record which can be verified and that a detailed
inspection of previous projects is undertaken by the client's professional
advisers. Care should be taken to investigate previous performance. Have
the projects been completed on time and within budget? What are the main-
tenance costs? In addition to written testimonials from previous clients, it
may be advisable to obtain permission to discuss the bidding contractors'
performance and the quality of the buildings with clients and consultants
for previous projects.
It is important to select a contractor in whom the client has complete
faith and confidence. That is not to say that the client should go ahead
without professional advice throughout the project. This may take the form
of a project manager and possibly a quantity surveyor. An architect or engi-
neer may also be engaged to advise on technical matters. A good project
manager can make the difference between the success or failure of this
method of contracting. It is essential that the person selected to carry out
this role is given the freedom to act fairly and impartially. Whilst the
employer's interests must be given priority, it is very often counter-
productive to adopt an adversarial position which creates distrust between
all parties. Much more benefits can be obtained for the client if the project
manager helps to preserve trust and confidence by showing authority,
integrity and competence at all levels.
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SUB-
OUTLINE
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STRUCTURE
- DRAWINGS
DOCUUENTS
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DETAILS
DRAWINQS DETAILS
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DOCUUENTS
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FINISHES
TOTAL DESIGN PERIOD

TIUE
TOTAL CONSTRUCTION PERIOD
Figure 2.2 Phased design and construction
There are circumstances in which it is advantageous for the design stage

of the project to overlap with a considerable period of the construction
phase (see Figure 2.2). If this is carefully structured, it is possible to com-
mence construction much earlier than in traditional methods of contract-
ing. The total effect of this method of contracting may be to give rise to a
higher overall expenditure on construction: however, if the client can get
beneficial occupation earlier than it otherwise would have done by tradi-
tional contracting, there may be considerable savings or benefits such as
earlier rental income and reduced finance charges.
There are several methods of contracting which are suitable where it is
intended that the design stage and the construction stage overlap. Man-
agement contracting is one method which lends itself to this process. In its
purest form it is based on the prime cost plus the fixed (or percentage) fee
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method of contracting which has been used for many years. The outline
design of the project, together with a detailed brief, is prepared by the
design team and bidding contractors are required to submit their proposals
for the management and 'procurement of construction'. The criteria used
as a basis for selection will include:
reimbursable costs of site management, supervision and general services
(similar to 'Preliminaries' in traditional contracting);
lump sum or percentage to be added to the prime cost of the project;
management capability and resources;
ability to contribute to the design of the project - 'buildability';
programme and methods of construction;
methods of ensuring quality control;
systems for cost control;
industrial relations;
proposed packaging of work to be done by subcontractors;
buying power and negotiation skills;
previous track record.
The selected management contractor does not usually execute any work
himself. His obligations are, in collaboration with the design team and the
employer, to procure completion of the project on time and within budget,
by subcontracting various parts of the work and by purchasing materials to
be fixed by subcontractors. Balance will have to be made when consider-
ing the size and scope of work packages.
Large packages will not enable the employer to obtain the benefit of
buying margins, but a lower management fee may be required. On the other
hand, a large number of small work packages will usually reduce the prime
cost, but the management fee and reimbursable costs may be higher to
reflect the increased management, supervision and risk involved.
In this method of contracting, the management contractor enters into
an agreement with the employer in the same way as the contractor in tra-
ditional contracting. The contracting structure is shown in Figure 2.3. It is
often the case that the management contractor's liability for late comple-
tion is limited to any damages which it can recover from subcontractors.
This can cause serious problems if the subcontractors are financially vul-
nerable. Subcontractors carrying out small work packages may be faced
with damages for late completion which are out of proportion to the value
of work undertaken by them.
In traditional contracting, the employer may recover all of the damages
from the contractor without being concerned about which subcontractors
were the culprits. In management contracting, the liabilities of several sub-
contractors responsible for overlapping delays can cause difficulties and may
often lead to disputes and arbitration or litigation.
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UANACEUENT
DESIGN AND
CONSTRUCT10
I *no managomant
MANAGEMENT CONTRACTING
TRADITIONAL CONTRACTING
Figure 2.3 Management of design and construction
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Some hybrid forms of management fee contracts place greater respon-

sibility on the management contractor. It is possible to devise a scheme
where the management contractor is also responsible for the execution of
the work in the same way as the traditional contractor. The advantages are
that the management contractor is involved in the design and selection of
subcontractors, but once the subcontracts are awarded, the management
contractor takes full responsibility as if the subcontractor was a normal
domestic subcontractor in the traditional sense. The management contrac-
tor may also execute some of the work himself. The management fee is
likely to be higher to reflect the greater risk in this form of contracting.
There are also many methods of project management or construction
management which permit overlapping of design and construction. It is
impossible to define these methods of contracting as there appears to be
numerous variations on a theme. In very broad terms the project manager
is responsible for co-ordinating and managing the design and construction
of the project as part of the project team. The manager will enter into a
contract with the client to manage the project, but he may not enter into
subcontracts. Each work package is undertaken by direct contracts with the
client and the work is carried out under the direction and supervision of the
project manager (see Figure 2.4).
2.4 Standard Forms of Contract
Why use a standard form of contract? Firstly, it will have been prepared
having regard to the nature of the work to be undertaken. Secondly, prac-
titioners in the industry are more comfortable using a standard form of
contract with which they are familiar and which is usually capable of
interpretation by reference to readily available text books and case law.
Thirdly, they are often drafted and agreed by recognised bodies represent-
ing all sides of the industry which will be affected by them. This last point
is to some extent a disadvantage in that a form of contract, 'by commit-
tee', is often a compromise containing some defective aspects of one form
or another.
Standard forms of contract are available to suit contracts of almost
any size and complexity and to suit most methods of contracting. Some
practitioners select forms of contract with which they are familiar without
having sufficient regard to their suitability or limitations. This practice is
not to be recommended and should be regarded as 'short changing' the
client. Any client embarking upon a construction project is entitled to expect
sound advice from his professional advisers on all aspects of the contract,
not least of which is the selection of the right form of contract for the
purpose.
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EMPLOYER
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r - - - - -I--- -- - T----- '
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CONTRACTOR CONTRACTOR CONTRACTOR CONTRACTOR CONTRACTOR
A
- CONTRACTUAL RELATIONSHIPS
----- ADMINISTRATIVE RELATIONSHIPS
Figure 2.4 Project management structure
The methods of contracting discussed in this chapter will be a major con-

sideration for many larger projects and for small or medium projects that
require a considerable amount of preplanning. The type and size of con-
tractors bidding for the job will also be important. For example, the use of
a lengthy standard form, such as JCT80, may not be appropriate when the
tendering contractors are little more than 'one man' firms having no under-
standing of the complicated provisions in the contract. The use of this form
of contract in such circumstances will increase the price and/or lead to all
sorts of problems in administration of the contract. At the other end of the
scale, the use of one of the simpler forms of contract may not be appro-
priate for a project with a high building services content.
In spite of the recommendations of both the Banwell Report of 1964
and the Latham Report of 1994 (that ideally, a single form of contract
should be required for all types of building and civil engineering work), there
are now well over one hundred different standard forms of contract for use
in the UK alone. In many cases (particularly JCT) so many amendments
have been and continue to be made that tender and contract documents
often include not only the standard printed conditions, but several amend-
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ments which need to be referred to in order to fully understand the

contract.
It is not possible to deal with all of the standard forms of contract in one
chapter. However, some of the most common are considered very briefly.
2.5 The Joint Contracts Tribunal Standard Forms of Contract
The most commonly known standard forms of contract are those issued by
The Joint Contracts Tribunal (JCT).The first standard form issued by the
JCT was in 1963 which superseded the RIBA forms of contract. It was
published in four main variants; the private and local authorities' versions,
each with, or without, bills of quantities. Today there are a number of stan-
dard forms for a variety of needs.
The contract references given below for the most common forms of
JCT contract are the original references upon first publication. In many
instances, later publications have been issued to incorporate amendments
since the original issue. The latest issue and reference at April 2000 is given
after the original reference.
The Minor Works Form, MW80 (MW98)

A simple form of contract embodying the essential ingredients of a build-
ing contract. Suitable for a project of limited value (not recommended for
projects exceeding £70000 at 1992 prices) where there are no bills of
quantities. It is not suitable where nominated subcontractors are contem-
plated. The recommended limits on its use are contained in practice notes
issued by the JCT. The practice notes are for guidance only and do not
form part of the contract. As the title implies, the form is intended to be
used for minor works which can be adequately defined in drawings and
specification.
The Intermediate Form of Building Contract, IFC84 (IFC98)

This form of contract was drafted to fill the gap between the minor works
form and the standard form of building contract. It combines the simplic-
ity of the minor works form of contract but many of the procedural provi-
sions of JCTSO are incorporated. The same form can be used for private
and local authorities' use, and it contains alternative provisions so that it
can be used with a specification, or schedules of work or bills of quantities.
Limitations as to its intended use are printed on the cover of the form of
contract and further guidance is given in practice notes.
Supplementary conditions are provided if it is intended to have partial
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possession or sectional completion. Without these supplementary, condi-

tions, difficulties may arise when applying the liquidated damages pro-
visions. Whilst this is a simplified form of contract when compared with
JCT80, it is contained in more than thirty pages, making it almost as long
as the predecessor of JCT80 (that is JCT63). With very little amendment,
it is an extremely flexible form of contract which finds favour outside of its
intended limitations.
The Standard Form of Building Contract, JCT80 (JCT98)

Ignoring the fact that versions of its predecessor (JCT63) are still used in
many parts of the world, this standard form of contract is perhaps the most
widely used in building works today. Many aspects of JCT63 have been
retained, including some which have received criticism in the courts over
the years. Some of these will be discussed later. Provisions for dealing with
nominated subcontractors have become unnecessarily complicated. Several
amendments and practice notes have been issued. It is available in private
and local authorities' editions with, or without, (bills of) quantities.
The JCT forms of contract referred to above are all intended to be used
where the design has been substantially completed at tender stage. Other
forms of contract issued by the JCT contemplate some of the design being
a continuing process after tender stage (and after commencement of work).
They include:
The Standard Form of Contract with Approximate

Quantities: 1998
This form of contract may be suitable where the general contract philoso-
phy of the JCT80 standard form of contract is to be retained but where
the design is less complete than that required when using the standard form.
It may be used if it is intended to bring forward the date of selection of a
contractor with a view to earlier commencement on site. The quantities are
subject to remeasurement. This contract is sometimes abused. It should not
be a device to permit less accurate bills of quantities to be used.
The Prime Cost Contract, PCC98

This form of contract has replaced the Fixed Fee Form of Contract. This
contract may be suitable where the design has not progressed sufficiently
to accurately define the Works. However, the scope of the work to be done
has to be defined and sufficient information to describe the items of work
to be done is necessary. An estimate of the prime cost of the work to be
done and a fixed fee form the basis of the estimated total cost to the
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employer. There is no provision to vary the scope of the work. The final
cost to the employer is the actual prime cost ascertained from the con-
tractor's accounts and invoices plus the fixed fee quoted by the contractor.
There is provision for reimbursement of loss and expense caused by dis-
turbance of the regular progress of the works.
The 1987 publication of this form of contract retains the format of the
1963 JCT standard form of contract. Some of its provisions, therefore, are
subject to the same criticism as JCT63.
The Standard Form of Management Contract 1998

The principle of ascertaining the cost to the employer, in this form of con-
tract, is similar to the fixed fee form. The main differences between the
fixed fee form and the management form are:
a the management contractor must co-operate with the design team as
part of his contractual obligations;
a there is provision for a pre-construction stage and a construction
stage;
a the management contractor does not cany out any work himself.
a in addition, there are optional contractual provisions dealing with instruc-
tions involving acceleration or revised sequence of work.
Control of cost and time is dependent upon the close co-operation between
all members of the design team and the management contractor. The man-
agement contractor manages and supervises the construction of the work
and the execution is done by several works contractors.
The Standard Form of Building Contract with Contractor's

Design, CD98
This form of contract contemplates a reasonably detailed outline of the
employer's requirements based upon which competitive tenders are invited,
incorporating the bidding contractors' design solutions and price for design-
ing and constructing the works. The same form of contract is often used
as a basis for a negotiated contract.
Whilst it is possible for the design to be complete prior to construction,
the form of contract envisages design by the contractor during the contract
period. Insufficient thought to design by the contractor prior to acceptance
of the contractor's proposals by the employer often leads to disputes as to
what constitutes a variation to the employer's proposals and what ought to
have been contemplated by the contractor as part of the original design.
Comprehensive and detailed proposals by the employer can reduce the
scope for such disputes.
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2.6 Other Forms of Contract
Government forms of contract, such as GC/Works/l, are used extensively

in the public sector. Amended versions exist for overseas projects. In the
latest editions (Edition 3 and 1998) much of the administrative work falls
on the project manager appointed by the authority (the employer). There
are contractual provisions for acceleration. Variations and amendments to
the standard publication enable alternative methods of contracting to be
used, such as design and build.
Other standard forms of contract issued by professional bodies are avail-
able and are worth considering as alternatives to some of the better known
standard forms of contract.
In the civil engineering field, the ICE forms of contract (traditional,design
and build and minor works contracts) are well established in the UK. The
sixth edition of the traditional contract is being phased out. The seventh
edition (substantially the same as the sixth edition) is now in use and it
remains to be seen if this form of contract can maintain its almost univer-
sal recognition in the face of competition from new alternative forms of
contract devised by leading experts in construction contracts.
The Model Form of General Conditions of Contract for use in connection
with Home or Overseas Contracts for the Supply of Electrical, Electronic
or Mechanical Plant - with Erection 1988 (MF/l) Revision 3 1995 is com-
monly used for major projects such as water or power plants.
FIDIC Contracts
The first contracts designed specifically for international contracts were
probably initiated in the United States. These were largely defence project
orientated and the most well known is probably the Corps of Engineers
contracts. The Associated General Contractors of America and the Feder-
ation of Americana de la Industria de la Construction led the way for the
US construction industry to move in the direction of the international
conditions of contract known as FIDIC (Fkdkration Internationale des
Ingbnieurs-Conseils) which was based almost entirely on the pre-Fifth
Edition ICE conditions of contract. The First Edition of FIDIC was published
in 1956 and has gone through several revisions, the latest edition which
followed the ICE format being the Fourth Edition (commonly known as the
Red Book) published in 1987. This form of contract was intended for use
where the design was done by the employer and construction was done by
the contractor.
Because of a growing international demand for a variety of contracts to
suit different methods of procurement, other standard international forms
of contract issued by FIDIC up to 1999 were (for Electrical and Mechani-
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cal Works) the Yellow Book and (for Design-Build and Turnkey) the Orange
Book. Apart from the changes giving emphasis to the nature of some of
the specialist work in electrical and mechanical contracts, the main differ-
ence between these two forms is the degree of design responsibility placed
on the contractor. Both the Yellow and Orange Books contemplate design
by the contractor.
In 1999, FIDIC published a new family of contracts:
The Red Book

Conditions of Contract for Construction for building or civil engineering
works where the works are designed by the employer (or by his engineer)
and where the contractor constructs the works in accordance with the
design provided by the employer. However, the works may include some
contractor-designed civil, mechanical, electrical and/or construction works.
The 1999 Red Book is intended to replace the 1987 fourth edition (also
known as the Red Book).
The Yellow Book

Conditions of Contract for Plant and Design-Build for electrical and/or
mechanical plant, and for the design and execution of building or civil engi-
neering works. Under this form of contract, the contractor designs and
provides plant and/or other works, in accordance with the employer's
requirements.
The 1999 Yellow Book replaces the previous Yellow Book.
The Silver Book

Conditions of Contract for EPC Turnkey Projects for use in process or
power plants, factories and the like, infrastructure or other types of devel-
opment, where the employer requires a higher degree of certainty of final
price and time, and where the contractor takes total responsibility for the
engineering, design, procurement and execution of the project. Ideally there
should be little involvement by the employer.
The 1999 Silver Book is intended to replace the 1995 Orange Book.
The Green Book

Short Form of Contract for building or civil engineering works of relatively
small capital value and/or of a repetitive nature or short duration. Under
this form of contract, the contractor may construct the works in accordance
with details provided by the employer or it may be used for contractor-
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designed civil, mechanical, electrical and/or construction works. FIDIC's

guidelines for the use of the Green Book suggest that US$500 000.00 and
twenty-six weeks should be regarded as reasonable limits on capital value
and duration respectively, with the proviso that works of a repetitive nature
may exceed these guidelines.
In spite of the criticism levied at the FIDIC contracts (infra), the new stan-
dard layout incorporating a great deal of common or 'core' conditions is
welcome. Greater emphasis on definitions and a specific definition of 'force
majeure' is new. There are numerous minor changes to some definitions
and clauses between the three contracts for major construction projects
(Red, Yellow and Silver Books) but the principal changes appear in the fol-
lowing clauses:
Clause 3
In both the Red Book and the Yellow Book, these clauses are almost iden-
tical and deal with the powers and obligations of the engineer (the Red
Book provides for the contractor to confirm verbal instructions of the engi-
neer whilst the Yellow Book requires all instructions to be in writing). The
engineer does not feature in the Silver Book where clause 3 deals with
employer's administration.
Clause 5
In the Red Book this clause deals with nominated subcontractors. (In the
Yellow and Silver Books there are very brief provisions for nominated sub-
contractors in sub-clause 4.5.) The same clause in the Yellow Book and
Silver Book deals with design (by the employer). In the Yellow Book, the
contractor may lose his rights to any claim in respect of incorrect infor-
mation provided by the employer if he failed to properly scrutinise the
employer's information in accordance with the contract and failed to give
notice of the error within twenty-eight days. In the Silver Book, the con-
tractor is deemed to have scrutinised the information provided by the
employer before submitting the tender (before the base date) and shall be
fully responsible for any error, inaccuracy or omission in the employer's
information with the exception of:
(a) information stated in the contract as being immutable or the employer's
responsibility;
(b) definitions of the intended purpose of the works;
(c) criteria for testing and performance of the works; and
(d) information which cannot be verified by the contractor except as oth-
erwise stated in the contract.
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Clause 72
In the Red Book, this clause deals with measurement and valuation. In both
the Yellow and Silver Books, clause 1 2 deals with tests after completion of
the works.
The Red, Yellow and Silver books all have provisions for 'value engineer-
ing'. In the Red Book, the contractor and the employer share any saving
that the contractor may be able to make or any benefit that the employer
may receive as a result of:
(a) accelerated completion;
(b) reduction in cost to the employer of executing, maintaining or operat-
ing the works;
(c) improved efficiency or value to the employer of completed works; or
(d) other benefits to the employer.
Under the Yellow and Silver Books, any such proposal (for value engi-
neering) shall be treated as a variation. It is unlikely that value engineering
will feature in the Yellow and Silver Books as most contractors ought to
have 'value engineered' his design at the tender stage.
The Red, Yellow and Silver Books have much improved procedures for
better management, monitoring and control of the project (see Chapter 4).
The New Engineering Contract (NEC)

The New Engineering Contract (NEC) (1991) has now been replaced by
the Engineering and Construction Contract (NEC). The second edition was
published in 1995 and reflects a substantial move to recognise, and cater
for, the various forms of contract which have been discussed herein. It is
based on a core contract with flexible alternatives allowing the employer to
choose the appropriate version to suit his needs.
The tendocument package consists of a core contract containing pro-
visions which are universal to all versions. The various versions are:
a Document A - Conventional Contract with Activity Schedule;
a Document B - Conventional Contract with Bills of Quantities;
a Document C - Target Contract with Activity Schedule;
a Document D - Target Contract with Bills of Quantities;
Document E - Cost Reimbursable Contract;
a Document F - Management Contract.
An engineering subcontract, guidance notes, flowcharts and other optional
provisions pave the way for a better understanding of contracting methods
and their use should be encouraged.
Some of the important aspects of the NEC are as follows:
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The first core clause 10.1 sets out the philosophy behind the contract:
'The Employer, the Contractor, the Project Manager and the Supervisor shall
act as stated in this contract and in the spirit of mutual trust and co-operation.
The Adjudicator shall act as stated in this contract and in the spirit of
independence.'
In general terms, the project manager and the supervisor carry out the
duties of 'the Engineer' in ICE and FIDIC contracts. The adjudicator settles
disputes between the employer and the contractor.
As stated in Chapter 1 , there is provision for an 'early warning' to be
given by the contractor or by the project manager. The response to an early
warning contemplated by the contract is refreshing and should be taken on
board in any form of contract if the employer is really going to have the
best possible chance of getting his project on time and within budget. Clause
16.3states:
'At an early warning meeting those who attend co-operate in:
making and considering proposals for how the effect of each matter
which has been notified as an early warning can be avoided or reduced,
seeking solutions that will bring advantage to all those affected, and
deciding upon actions which they will take and who, in accordance with
this contract, will take them.'
The various main options (A-F) use most of the core clauses and each
option requires changes to particular clauses to suit the method of con-
tracting. In addition, there are numerous secondary options. Some exam-
ples are:
Option L: Sectional completion

This option is used should the employer require completion of various parts
of the works at different times. If this option is not used, then there is only
one completion date for the whole of the works.
Option M: Limitation on the contractor's liability for his design to

reasonable skill and care
It is usually the case that where a contractor designs the works, his liability
for design is 'fit for purpose'. This means that the design must work and
the contractor will be liable for any failure in design. In contrast, where the
design is done by the employer's designer and the contractor builds in accor-
dance with the employer's design, then the employer's designer's liability
for design is 'that of a professional man'. That is to say, provided that the
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employer's designer exercised reasonable skill and care (of the standard
expected of a competent professional man), using all relevant and univer-
sally known codes and standards, then he will not normally be liable if the
design fails. This Option M limits the normal liability for design by the con-
tractor to the same as 'that of a professional man'. This may be of signifi-
cance, particularly if it is impossible to insure for design defects if the liability
is 'fitness for purpose'.
Option Q: Bonus for early completion

Bonuses for early completion are more often used in international contracts
and most standard forms do not contain provisions for bonus. FIDIC con-
tracts contemplate bonus for early completion in Part I1 (Conditions of Par-
ticular Application). NEC provides for bonus for early completion if this
Option Q is used.
Option R: Delay damages

Delay damages is a term used for liquidated damages. Both NEC and the
1999 FIDIC contracts use this term in preference to liquidated damages.
Most standard forms have a provision for delay (liquidated) damages in the
standard conditions. It is possible that the drafters of the NEC took the view
that with an increasing number of clients wishing to opt for general or
unliquidated damages, this option (which could therefore apply or other-
wise) was preferable to having a standard provision which if deleted or had
'nil' inserted against it, resulted in the problems which could arise if the em-
ployer sought to recover general damages (see Temloc Ltd v. Erril Prop-
erties Ltd, infra).
Option S: Low performance damages

This option is particularly useful if the employer wishes to specify perfor-
mance criteria which must be achieved. It is commonly used for design and
construct or turnkey contracts for process or power plants (such as the
FIDIC Yellow and Silver Books). If the specified criteria are not achieved,
damages may be deducted until such time as the problem is rectified. Dam-
ages are commonly measured as a fixed sum per percentage of shortfall
in performance (or overrun in operating cost).
Build, Operate and Transfer Contracts (BOT)

These forms of contract (sometimes known as Build, Own, Operate and
Transfer - BOOT) are becoming more common, particularly in countries
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where the government does not have sufficient public funds available to
finance vital infrastructure, power or water projects and the like. Whilst this
method has seen most growth in developing countries such as India, Thai-
land, Malaysia, China and Vietnam, it is also popular in developed coun-
tries. In the UK, BOT or BOOT is the basis of the Government's Private
Finance Initiative (PFI).
Projects which attract revenue by way of tolls or levies -a re candidates
for this type of venture. A project is founded by the granting of a 'conces-
sion' for a period of years (say twenty to thirty years) to the promoter or
concession company. The promoter will seek equity funding from inter-
ested investors and long-term finance from banks and financial institutions.
Normally banks and financial institutions need to be satisfied on the
debt:equity ratio and a minimum ratio may be set by the government. The
promoter designs and constructs the project or it enters into a turnkey con-
tract with a contractor for the design and construction of the works. Unlike
a traditional contract, the concession company does not receive payment
in stages or on completion, but relies on the income generated from tolls
or levies throughout the life of the concession. The remuneration (and
profits) are generated over the period of the concession by tolls or levies,
out of which the capital and interest charges are repaid to the lenders, and
dividends are paid to the investors. If there is delay to the construction of
the project, then the promoter suffers a loss of revenue. Depending on the
discount rate, one-year delay to completion of construction may require
more than five years' extension to the concession period in order to recover
the loss.
Any project which has the potential to earn revenue over a number of
years which is more than sufficient to pay back loans and interest and
produce a reasonable return for investors is suitable for a BOT scheme.
The contractual structure of a typical BOT scheme is shown in Figure
2.5 and the flow of expenditure and income for most models of BOT
schemes is shown in Figure 2.6.
The comparison of costs incurred and the income does not, by itself,
indicate whether or not the bid is profitable. The costs and the income must
be brought back to a similar basis by discounted cash flow (DCF)techniques.
Lenders to a project want to be sure that the project has a potentially
satisfactory financial position. Lenders will measure the financial position
of the concession company investors, for example, ROE (Return on Equity),
and they expect to see a financially attractive scheme. Lenders fully realise
that the project is more likely to succeed if the persons or bodies investing
in the concession company have an excellent opportunity to earn a very
good return.
In the early years of the operating period, all or most of the 'surplus'
revenue will be used to repay loans - 'debt service and repayment of inter-
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CONCESSION
AGREEMENT
CONCESSlON INDEPENDENT
CONSULTANT
Figure 2.5 Contractual structure (BOT)
est'. The ratio of debt to equity will diminish as years pass until, at a certain
point, all the debt is repaid.
Diagrams showing how costs and revenue can be reconciled are given
in Figures 2.7 and 2.8. Figure 2.7 shows expenditure and income and
Figure 2.8 shows equity against dividends.
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INVESTORS
DIVIDENDS
CONCESSION
CONTRACTOR OPERATOR
UTILITY USER
Figure 2.6 Costs and finance
The repayment of the loan and interest in Figures 2.7 and 2.8 assumes
that the concession company must repay capital in equal instalments over
nine years with interest on the reducing amount (commencing in the first
year). Other options include a flat annual repayment, whereby the capital
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GROSS INCOME
, , , I t
, , , , I
I I I I I
T I , , ,
N E n INCOME
NOTE BANKS MAY INSISTON MINIMUM SURPLUS M RESERVE

FINANCE COSTS REPAIR COSTS THIS EXAMPLE DOES NOT MEET THIS REQUIREMENT
GOVERMENT SHARE OF MCOME
Figure 2.7 Expenditure and income (BOT)
KEY INVESTMENT (EQUITY)

- NETT INCOME (REVENUE - COSTS)
DIVIDENDS
Figure 2.8 Equity and dividends (BOT)
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repaid in the first year is small and the interest is large. The amount of
capital repaid each year increases and the interest decreases. In some cases,
repayment may be deferred for three to twelve months (after commence-
ment of operation). An important factor to be taken into account in some
developing countries is the fact that much, and in some cases all, of the
loans and equity will be provided in hard currency, but the revenue (out of
which the loans have to be repaid and dividends paid) will be in local cur-
rency. The long-term effect of exchange rate fluctuations may be critical or
even disastrous unless the concession agreement has a built-in remedy to
compensate the concession company.
It should be noted that these 'financial models' in Figures 2.7 and 2.8
represent a poor investment on a number of grounds:
ideally, there should be a reasonable surplus (income over expenditure)
throughout the concession period (very often the lenders will insist on
this);
the breakeven point for investors should be within the first third of the
total concession period;
investors would normally expect dividends within a few years of com-
mencement of operation;
any delay to the project is likely to cause the project to be a failure
because there is insufficient margin in the financial model (the breakeven
point will disappear at the end of the twenty-five year concession period
if there is one-year delay to the project with a ten per cent discount
rate).
Where a BOT project involves the use of land or facilities owned by or
controlled by government, it is necessary to pass specific legislation to cover
the project. This may be done by enacting specific legislation governing the
granting of a concession agreement and its terms for a particular project,
or by enacting general legislation governing the terms of concession agree-
ments and specific legislation for each particular project.
It will be seen from Figure 2.5 that there are a number of contracts
between the various parties. There are no standard forms for BOT con-
cession contracts (between government or public authority and the con-
cession company). Likewise, there are no standard forms for operating
contract, loan agreement or shareholder's agreement. The independent
consultant agreement and the agreement between the contractor and the
designer may be based on one of the standard forms, such as the FIDIC
Consultants Agreement (1990).
Whilst there are no standard forms of construction contract (between the
concession company and the contractor), a number of standard forms of
design and construct or turnkey contracts may be modified to suit the BOT
model. FIDIC promotes its 1999 Silver Book as a form of contract suited
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to BOT (suitably amended). It is perhaps here that the debate over whether
to use FIDIC or NEC (suitably amended) will be the hottest. On the one
hand, there are good grounds to argue that a 'tough' contract such as FIDIC
should be preferred. On the other hand, having regard to the fact that all
parties suffer from increases in cost or delay in a BOT project, there is all
the more reason for the parties to co-operate to ensure completion on time
and within budget (hence the choice of NEC may be the better one). As
long as the amendments to FDIC take on board the constructive elements
of NEC, it is probable that FIDIC will be equally, if not more, appropriate
than NEC in these types of project.
One of the factors to be considered in any construction contract within
a BOT model (FIDIC, NEC or any other) is how to deal with the contrac-
tor's conflict of interest (where, as is often the case, the contractor is a sig-
nificant shareholder of the concession company). Such matters as loading
construction costs, or errors in compiling the estimate of construction costs
and variations which might have been avoided, need to be addressed by
the use of deferred payment (but only if there is sufficient surplus in
revenue). All shareholders and lenders should be aware that contractors will
often look for short-term gains (profit in the construction contract) rather
that long-term returns (dividends from the concession company).
However, the wise contractor will see that a sensible mixture of short-
term gains (from construction) and long-term gains (from shareholdings in
a number of concession companies)will be advantageous over several years,
during which there may be cycles of 'boom and bust' in the construction
industry.
2.7 Special Conditions and Contract Documents
In many building contracts, the standard conditions of contract are intended

to stand on their own to be used without amendment. Where partial pos-
session or sectional completion of the works is intended, some forms of
contract may need special attention to enable these provisions to be incor-
porated. The Joint Contracts Tribunal have published several supplemen-
tal conditions of contract designed to be used with the appropriate standard
forms of contract for these purposes. Failure on the part of professional
advisers to give sufficient thought to these matters is a common cause of
dispute which is often resolved against the interests of the employer.
The general rule of law is that a specially written document which forms
part of a contract will take precedence over a standard document. Many
construction contracts have gone to considerable lengths to negate this rule.
The widely criticised provisions in clause 12(1)of JCT63 have survived and
appear in JCT80:
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'Clause 2.2.1 Nothing contained in the Contract Bills shall override or modify
the application or interpretation of that which is contained in the Articles of
Agreement, the Conditions or the Appendix.'
Similar provisions appear in many other JCT standard forms of contract

(clause 4.1 of the Minor Works form; clause 2.2 With Contractor's Design
and clause 1.3 of the Intermediate Form).
It is self-evident, on the wording of the above-mentioned provisions, that
intended amendments appearing in other contract documents, such as the
contract bills (of quantities) may be of no or limited effect. It is also inap-
propriate to delete the relevant clause (such as clause 2.2.1 in JCT80). The
deletion may cause everything in the other contract documents to override
or modify the standard conditions, which may not be the intention without
the most careful drafting of the other contract documents. If other provi-
sions are intended to take precedence over the standard document, such
provisions ought to be incorporated by additional clauses in The Condi-
tions [of Contract]. Alternatively, supplemental conditions of contract may
be used with an appropriate amendment to clause 2.2.1 of JCT80 (or the
corresponding clause in other forms of contract) to give full effect to the
supplemental conditions.
In Barry D Trentham Ltd v. McNeil (1996) SLT 202 it was held that
the wording of clause 2.2.1 of JCT80 giving precedence to the conditions
of contract (and appendix) over the contract bills, in the circumstances of
this case, did not have the same effect as would have been the case under
JCT63. The judge's reasons included the fact that the words 'or affect in
any way whatsoever' which had appeared after 'modify' in JCT63 had been
deleted from JCT80. This change, together with the same priority of the
conditions and the appendix were sufficient to enable the employer to rely
on the provisions for phased completion and liquidated damages for phase
one which appeared in the contract bills. Reliance on this decision in all
circumstances may not be sufficient to avoid problems when the intended
amendments to the contract are set out in the contract bills, otherwise
clause 2.2.1 would be redundant.
For the avoidance of doubt, the contract documents should be clearly
specified. In the JCT forms of contract, the contract documents are
described in the contract (for example, see clause 2.1 of JCT80). Some-
times other documents, such as exchanges of correspondence, are bound
into the documentation with the intention of incorporating such documents
into the contract. It is advisable to make the appropriate amendment in the
conditions of contract giving full effect to other documents, setting out the
order of priority in the case of ambiguity. If the latter is not done, it is likely
that these other documents will take precedence (under the general rule).
This may be acceptable if the entire contents of the other documents are
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to take precedence. However it is sometimes the case, after negotiation

and clarification, that parts of the contents of such documents are not
intended to apply. It is better practice to summarise any special provisions
which may have been agreed in correspondence and incorporate such pro-
visions in the contract. This will avoid the necessity to include correspon-
dence in the documentation.
In civil engineering contracts, the contract documents are intended to be
mutually explanatory of one another (clause 5 of the ICE (fifth, sixth and
seventh editions)). The engineer is empowered to explain any ambiguities
and make any necessary adjustment resulting therefrom. This is a poten-
tial cause of disputes, particularly where the drafting and editing of the
contract documents (by the engineer who may be responsible for the ambi-
guities) are done without the necessary care.
In international contracts, the FIDIC conditions of contract provide
for other documents to be incorporated by reference in the letter of accep
tance or in the contract agreement. The order of priority of the documents
forming the contract is specified (clause 5.2 of the fourth edition, and
clause 1.5 of the 1999 Red, Yellow and Silver Books). This is a valuable
feature which assists in dealing with ambiguities. Part I1 of the FIDIC con-
ditions of contract contains the special conditions which take precedence
over the standard conditions of contract. The use of this method encour-
ages the standard of care necessary to draft clear and unambiguous
contracts.
Other documents such as drawings, specifications and bills of quantities
need careful attention to ensure that there are no ambiguities in, or between
them. A common practice (to be discouraged) is the use of standard spec-
ificationsor preambles which have not been edited to remove clauses which
are not applicable to the work to be done. Every specification clause or
preamble should be relevant to the work shown on the drawings. If it is
decided to change the specification during the course of the project, then
a new specification clause can be issued as part of a variation order. Some
engineers and architects try to argue that contractors are required to carry
out work which is not in the contract, at no extra cost, merely because it
is mentioned in the specification.
Only the most careful editing of all of the documents forming the con-
tract will minimise the exposure to claims arising out of ambiguities. Each
contract should be treated as being unique and reliance on standard docu-
ments for all contracts should be discouraged in many instances.
Part I1 of the fourth edition of FIDIC contemplates a number of changes
and additional clauses to suit particular circumstances. Unfortunately, it is
common practice for employers or their professional advisers to modify
the standard FIDIC conditions in such a way that the modifications go far
beyond that reasonably contemplated. Some examples are:
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the deletion of contractor's rights to an extension of time for adverse

physical conditions and delays by public authorities;
contractor's rights to interest on late payment, suspension of work due
to late payment (with extensions of time and additional costs) deleted;
contractor's rights to determine his employment for non-payment
changed from twenty-eight days to one-hundred days;
almost all of the grounds for the contractor to terminate his employment
due to the employer's default deleted;
employer's additional rights to terminate the contractor's employment if
the contractor fails to accelerate the progress of the works after being
instructed to do so (even if the works had been delayed by matters for
which the contractor would be entitled to an extension of time);
deletion of all of the employer's risks and special risks: the contractor to
be responsible for all of the risks described as employer's risks or special
risks in clauses 20.4, 65.1 and 65.2 of FIDIC fourth edition.
The contractor to be responsible for:
existing ground conditions;
existing underground services (whether or not they are shown on the
drawings supplied by the employer);
data provided by the employer;
any design provided by the employer;
general damages to apply in addition to liquidated damages (fortunately,
this provision could not be enforced under the laws of the country in
which this particular contract was to be carried out).
Some of the above revisions may be suitable for a turnkey contract (and
some are in fact incorporated in the 1999 FIDIC Silver Book). However,
they are not appropriate for a traditional 'Red Book' type of contract where
the design is done by the employer and the contractor constructs the work
in accordance with the employer's design.
Other examples of modifications to the fourth edition of FIDIC which
illustrate a degree of incompetence on the part of the employer's advisers
are:
Contractor's rights to an extension of time due to the employer's failure
to give possession of site deleted (see Rapid Building Group Ltd v.
Ealing Family Housing Association in 1.4).
Deletion of the standard extension of time clause (44.1)and its replace-
ment with the text of the extension of time clause (23) from JCT63.
Owing to the cross-referencing of another clause dealing with delays qual-
ifying for extensions of time (in the standard FIDIC conditions) to the
standard clause 44.1 of FIDIC (which refers to any cause of delay referred
to in these conditions) and the fact that the replacement clause (23 of
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JCT63) does not include 'any other cause of delay referred to in these
conditions', there may be some doubt as to how the revised provisions
will be construed.
It remains to be seen if the 1999 FIDIC contracts will be subject to the
same sort of abuse. Lessons may be learned from the fact that contractors
sometimes conspire to boycott the contract by refusing to tender if the
abuse justifies it.
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Tender and Acceptance
3.1 Selection of Tendering Contractors: Pre-qualification
Many mistakes and potential claims can be avoided if sufficient thought and
planning is put into the pre-tender stage of a contract. A common mistake
is to invite too many contractors, at the last possible minute, to submit a
tender for a project. There have been cases of over twenty contractors
being invited to bid for a project. In a recession, all or most of the invitees
will oblige. This process may provide the lowest possible tender figure.
However, it does not guarantee the lowest final account and very often com-
pletion of the project on time (if the contractor survives the course) may be
in doubt because of the failure to resource the project properly. In a buoyant
market, some contractors may submit cover prices (not a genuine tender,
but one based on another tendering contractor's price and uplifted to ensure
that it will not be successful). It has not been unknown for only one serious
bid to be made alongside several cover prices. In such circumstances, the
contractor submitting the serious bid usually discovers that fact and the
tender price increases accordingly.
Substantial benefits can be gained by early selection of contractors who
are willing to submit a bona fide tender and who are capable of carrying
out the work. This can be done by carefully selecting potential contractors,
giving them reasonable notice of the proposed tender and inviting them to
indicate their willingness to submit a tender for the project. The invitation
should contain sufficient information to enable the invitees to consider their
ability to submit a tender and execute the work, such as:
date for issuance of complete tender documents;
date for receipt of tenders;
date of award of contract;
date for commencement of the work;
contract period;
form of contract (with or without bills of quantities);
liquidated and ascertained damages;
brief description of the project.
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Tender and Acceptance 63
It should be made clear that any firms wishing to decline from submitting
a tender would not prejudice their chances of being invited to tender for
future work. Firms who accept the invitation should be given the oppor-
tunity to attend a preliminary meeting and view the drawings which are
available.
If the above procedures are followed, the employer will be reasonably
confident that he will receive serious bids from contractors. In the event
of insufficient positive replies, the employer can widen his net to make
enquiries of other firms. In addition, each contractor will be able to prepare
for the necessary staff to be available and it can begin to make enquiries
of potential subcontractors and suppliers.
In the case of large complex projects it may be desirable to invite con-
tractors to prequalify to tender for the work. The procedures described
above will be equally applicable to this process. However, in addition to
providing the information mentioned hereinbefore, the employer will wish
to find out more about the potential tenderers' capability. Prequalification
enquiries should cover:
previous track record on similar projects;
proposed management structure and staff responsible for the project;
financial standing of the firm;
resources which can be made available for the project;
details of any joint venture if tenders are to be submitted in the name
of more than one firm;
a outline proposals for method of construction and programme.
In some circumstances it may be appropriate to include all of the matters
described for management contracting in Chapter 2.
Pre-qualification enquiries should inform tenderers of the criteria to be
used for selection. After receipt of pre-qualification documents from the
invitees, a shortlist should be prepared according to the applicants'
responses, measured against the relevant criteria. This should be followed
by interviews of the shortlisted firms and the final tender list should be
drawn up as soon as possible so that all firms can be notified without
delay.
With the advent of the Single European Act, a number of Directives
issued by the European Commission have come into effect. The EC
Public Procurement Directives cover work in the public sector, that is,
work to be done by Contracting Authorities (government departments,
local authorities, nationalised industries and private sector bodies receiv-
ing more than fifty per cent of their funding from government and all
bodies governed by public law), the value of which exceeds specified thresh-
olds (subject to review). The principal EC Directives relating to procurement
are:
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The Public Supplies Directive, 77/62/EEC (amended 22 March

1988, 88/295/EEC) superseded by 93/36/EEC dated 1 4 June 1992 -
governing supplies where the contract exceeds ECU 200000
(£132000). Exclusions include transport, distribution of drinking water,
energy, telecommunications, contracts subject to secret or national secu-
rity measures and certain contracts under international agreements.
The Public Works Directive, 71/305/EEC (amended 18 July 1989,
89/440/EEC) superseded by 93/37/EEC dated 1 4 June 1993 - govern-
ing contracts for works exceeding ECU 5 million (£3.3 million).
The Excluded Sectors Directive, 90/531 EEC OJ L2791/29 October
1990 superseded by 98/4/EC dated 1 6 February 1998 - governing
public works and supply contracts for water, transport, energy and
telecommunications sectors where contracts exceed the thresholds
given in the following table:
Sectors (Works) - ECU 5 million (£3.3 million)
Water (Supplies) - ECU 400 000 (£264000)
Transport (Supplies) - ECU 400 000 (£264000)
Energy (Supplies) - ECU 400 000 (£264000)
Telecommunications (Supplies) - ECU 600 000 (£396000)
The Directives quote the threshold in ECUs. The ECU was converted to
euros at the rate of 1: 1 when the single currency was adopted. The
Excluded Sectors Directive contemplates a revision of the values in national
currencies of the thresholds every two years. The values quoted above in
pounds sterling are 1992 levels and should therefore be adjusted accord-
ing to the relevant revision (to be revised in 2000). The Directives also
require prior indicative notice (planning approvals) and contract notice
(details of the work which is the subject of the tender).
The criteria for selection of contractors include evidence of capability and
a proven track record for five years, details of key staff, plant, equipment,
labour and technical resources. References and financial information may
be required. Failing to comply with certain laws, such as legal requirements
to pay taxes and social security contributions, may be grounds for
disqualification.
3.2 Time Allowed for Tendering
It is unreasonable to allow only a few weeks to tender for a construction

project of any reasonable size. Nevertheless, this is often the case. It is
understandable that employers wish to start construction as soon as possi-
ble and it is this pressure which leads to insufficient time being allowed to
enable tenderers to prepare a tender properly. Insufficient time often leads
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to numerous potential errors. A survey carried out in the United States

in the 1970s indicated the following incidence of bid mistakes (Anatomy
of a Construction Project by Kris Nielsen, International Construction,
November 1980):
extension errors - 1 9 per cent (errors in multiplication to calculate quan-
tities or price);
lack of knowledge of work required - 1 6 per cent (insufficient attention
to a11 of the work involved);
lack of knowledge of contract administration requirements - 15 per cent
(failure to identify risk or insufficient allowance for cost of administra-
tion);
under-estimating escalation - 1 2 per cent;
transposition errors - 1 0 per cent (transposing incorrect figures from one
sheet or document to another);
poor pre-bid planning - 9 per cent;
poor resource planning - 9 per cent;
incorrect measurement of quantities - 8 per cent;
others - 2 per cent.
Given more time to tender for the work, the incidence and magnitude of
errors ought to be reduced. A distinction must be drawn between mistakes
in pricing by the contractor and mistakes on the face of the documents,
such as incorrectly extending a rate for an item of work. It must be in the
interests of both the employer and the contractor to avoid errors in the
tender. A low bid due to one or more mistakes often causes the successful
contractor to try every means to reduce costs and/or to pursue unmerito-
rious claims based on varying degrees of fiction.
However, it is not necessarily correct to assume that tenders will be
higher if more time is allowed and errors are avoided. If competent con-
tractors are given sufficient time to tender, they will be able to incorporate
savings brought about by detailed studies into methods of construction, pro-
gramming and procurement of plant and materials. Given that tenderers
are in competition, some, if not all, of these savings will be passed on to
the employer.
Many problems and mistakes can be avoided without delaying the date
for receipt of tenders. Tenderers can be given more time if some of the
tender documents are issued in advance of the entire set of tender docu-
ments. For example, drawings and sections of bills of quantities or specifi-
cations can be issued to tenderers before the preparation of the final tender
bills is complete. A considerable part of a contractor's pre-tender planning
and pricing will be based on the drawings. A detailed method statement will
be prepared almost exclusively from drawings.
Tenderers often have to measure quantities of work from the drawings
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to determine plant size and other resources. This is the case even where
bills of quantities are provided by the employer. Prices for special items
are often obtained on the basis of the drawings. In many cases, tenderers
may be able to establish, with reasonable accuracy, the cost of carrying
out the works, before the final set of tender documents is issued. All
that may remain to be done, during the relatively brief period allowed to
submit the tender, is to thoroughly check the tender documents, obtain
confirmation (or adjustment) of prices from subcontractors and sup-
pliers, adjust costs where necessary, adjudicate on the final tender sum
and compile the rates in the tender to arrive at the proposed tender
sum.
A suggested timetable for the above is shown in Figure 3.1.
The EC Public Works Directive 89/440/EEClaid down strict rules for
tenders which are covered by the legislation. The open tendering pro-
cedure must allow a minimum of 52 days from dispatch of tender notice
to receipt of tenders. The restricted (or selected) procedure must allow a
minimum of 37 days from dispatch of tender notice to receipt of applica-
tions to tender and a minimum of 40 days from dispatch of written invita-
tions to tender to receipt of tenders. The accelerated tender procedure may
be permitted in some cases of emergency, in which case the periods may
be reduced. Where no suitable tenders have been received during the
normal tendering procedures, or where additional work is required in
connection with an existing contract, direct negotiation with one or more
contractors may be permitted.
Directive 93/37/ECdated 14 June 1993 provides for certain amend-
ments and relaxations to the tendering procedures having regard to the
increasing number of concession contracts (BOT).
3.3 Exploitation of Poor Tender Documents by Contractors
An increasing number of firms engage staff to scrutinise all of the tender

documents to find ambiguities and other deficiencies that may be exploited
to produce a lower tender and a potential claim for additional payment
during the course of the project. It may be argued that all tenderers have
the same opportunity to exploit such deficiencies, and the employer will
end up paying no more, at the end of the day, than it would if the tender
documents had contained no deficiencies.
This is far from the case. The successful contractor will often recover
more, by way of claims, than it would if all of the costs had been included
in the tender sum at competitive rates. In addition, extensions of time for
completion of the works may flow from these deficiencies, whereas no addi-
tional time would result if there had been no deficiencies. Claims which
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INITIAL
INVITATION RESPONSE SHORTLIST
TO TENDER
I
PREPARE TENDER DRAWINGS
- - - 'I
DETAILS
I
PREPARE B U S OF QUANTITIES (8.9.) I
I
I
I4
:
I
SUB-STRUCTURE SUB-STRUCTURE I
DRAWINGS B.Q. I
i
STRUCTURAL SUPERSTRUCTURE
I
DRAWINGS B.Q. !
:
4
FINISHING
I
COMPLETE
TENDER
DRAWINGS DOCUMENTS
I SUBM~SSION AWARD
I
I
I
k
TOTAL PERIOD TO PREPARE TENDER
V
Figure 3.1 Suggested timetable for phased issue of tender documents
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arise out of innocent misinterpretation of the contractual intentions, or

exploitation, where there is an ambiguity or deficiency, are often the most
difficult to resolve amicably, since they reflect on the competence of the
employer's professional team.
Contractors can assist in avoiding problems that arise out of ambiguities
by notifying the employer's professional team of any ambiguity discovered
at pre-tender stage. These ambiguities should then be rectified and brought
to the attention of all tenderers prior to submission of tenders. If this is
done, all tendering contractors will be tendering on an equal basis and the
risk of exploitation will be minimised.
The employer's professional team should take care when evaluating
tenders so that any obvious pricing anomaly (between tenderers) is reviewed
with the tenderers to establish the reason for it.
3.4 Preparing the Estimate: Adjudication: The Tender
The estimator's task is to accurately calculate the cost of carrying out the
works and to apportion the cost to the various elements (or items in a bill
of quantities) of the job. In order to do this he may have to rely on several
other departments, or individuals, in the company. The cost of carrying out
the works is very much determined by the method of construction and the
programme for the project. The method of construction will determine the
type of plant to be used and the productivity to be expected. The pro-
gramme will determine the cost of time-related items such as external scaf-
folding, tower cranes and hoists. The amount of work to be subcontracted
may determine the number of supervisory staff and the cost of attendance
on each subcontractor. Compiling the estimate is a completely separate task
from tendering. The estimator should not make decisions or allowances
which are influenced by external market forces or post-contractual matters
such as front loading the rates (increasing the rates for work executed early
in order to improve cash flow). He may, however, advise management on
such matters.
Once the estimate has been compiled and the cost of executing the work
has been established, management will consider external factors such as
the competition and the probable successful tender sum. The existing work-
load of the company and the requirement to obtain further work will also
be considered, as well as the assessment of risk, staff resources, profit and
possible savings in cost which can be made. This process is known as adju-
dication. After due consideration of all of these factors, the estimate will
be converted into the tender for the works. The estimator will then make
all of the necessary adjustments to the rates in accordance with the deci-
sions of management. The form of tender will then be completed and
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submitted. In times of recession, the tender sum may be less than the esti-
mate of cost for executing the works.
A typical estimating and tendering process is shown in Figure 3.2.
3.5 Qualified Tenders
Some public corporations and government departments are bound by rules

which preclude the acceptance of a qualified tender unless all tendering con-
tractors are allowed to modify their tenders to incorporate the same terms
and conditions. Some are prohibited from considering a qualified tender at
all. Apart from the above considerations, are there any reasonable grounds
to qualify a tender?
Tendering contractors may suspect a risk if certain representations are
made by the employer such as the availability of materials provided by the
employer or as to the ground conditions. Careful examination of the pro-
posed contract conditions or knowledge of the general law may render a
qualification unnecessary, in which case none should be made as it detracts
from what would otherwise be a complying tender. On the other hand, the
proposed contract terms may be particularly onerous. The tendering con-
tractor then has the option of pricing the onerous terms (which may not
be possible without an element of gambling) or qualifying the tender in order
to have the onerous terms modified or removed.
From a practical point of view, if the employer is properly advised, it
may be sensible to invite a complying tender and an alternative tender incor-
porating certain changes which may be proposed by the tenderer. It could
be a condition of tender that all proposed changes should be notified several
days before the date for receipt of tenders, with the proviso that all ten-
dering contractors will be informed of the proposed changes. If that is done,
all tenderers will have the opportunity to submit an alternative bid incor-
porating those changes that they saw fit to adopt. If each adopted change
was required to be priced individually as an omission from, or addition to,
the complying bid, it would assist in evaluation of tenders and there would
be no delay in making an award. If qualifications are permitted without prior
notification on the date for receipt of tenders, there will almost certainly be
delay caused by evaluation and possible re-tendering. By that time all of the
tendering contractors will have a reasonable idea of the lowest tender, in
which case there is room to make other adjustments in order to make the
revised tender more competitive.
If a qualification is made to a tender, it is important to ensure that it is
couched in terms which make it a condition and that it is incorporated in
the contract. If extra costs are involved, the contract terms should clearly
state how these extra costs are to be added to the contract price and in
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TENDER
I I
I I
1 EXTENSION I
I I
-I
1 I
1
I ESTIMATE I
I I
+ADJUDICATION
(3 TENDER
Figure 3.2 Typical estimating and tendering process
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1 what circumstances. Qualifications contained in the tender, or in a letter

attached to the tender, will only be effective if the tender (or letter) is a con-
tract document: Davis Contractors Limited v. Fareham U.D.C. 119561AC
696. Alternatively, the qualification should become a contract term by
modifying the conditions of contract.
3.6 Tender Programme
The preparation of a tender programme is essential. It is an important aid

to the contractor when assessing cost and resources and to the employer
when evaluating the tender. In many cases a simple bar chart will suffice.
However, for complex projects, a detailed programme showing the logic
and restraints is required. The programme should be realistic. All too
often, the programme which is submitted is no more than a tool to
form the basis of potential claims which may arise. The contractor is
usually required to complete the project on or before the date for com-
pletion. Some contractors deliberately show early completion. If this is
possible without a disproportionate increase in cost it is often in the
interests of both parties to agree an earlier completion date. Problems can
occur if the contractor's tender is accepted and completion is shown, on
the programme, at an earlier date than the contractual date for completion
(Glenlion Construction Ltd v. The Guinness Trust (1987) 3 9 BLR
89 and Ovcon (Pty) Ltd v. Administrator Natal 1991 (4) SA 71 - see
Chapter 5).
The tender programme 'kill not usually be a contract document, but it is
often relied upon when formulating claims. For this reason it must be a
document which is a genuine reflection of the contractor's intention and
evidence to support this may be necessary. Estimated productivity, logic,
proposed plant and methods are some of the matters which may have to
be considered in detail to justify the contractor's programme.
Considerable areas of doubt may exist in any programme which relies
upon prime cost and provisional sums for important elements of the project.
The tendering contractor is required to allow for the completion of all of
the work by the contractual completion date. It is good practice to indicate,
on the programme, the sequence and duration of work to be done in
respect of each and every prime cost and provisional sum. Ordering
periods, relationship to other work and durations of the prime cost or pro-
visional work, which have been assumed, should be clearly indicated. Wher-
ever possible, the employer should inform all tendering contractors of
proposed, or potential, nominated subcontractors and suppliers so that the
programme requirements can be based on realistic information obtained
from them. Any additional information regarding provisional items should
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be given to the tendering contractors so that the element of guesswork is

reduced or minimised.
3.7 Evaluation Criteria
Some public bodies are prohibited from accepting tenders on the basis of
any other criteria than the lowest price (errors excepted). The lowest price
does not guarantee the lowest final account, and a detailed analysis of
tenders can sometimes indicate a possible exposure to a higher price than
the tender sum.
Save where tenders are very close, the acceptance of the lowest tender
may not be in the employer's best interests. A very low tender should not
normally be accepted without first discussing every contentious matter with
the tenderer. Errors should be dealt with in accordance with one of the
codes of practice (which should be notified to tenderers prior to submission
of tenders).
However, for some projects, price alone may not be the criterion which
determines the best bid. The tender programme may indicate to what
extent the tenderer has appreciated the complexity of the design. Proposed
methods may indicate to what extent the tenderer has appreciated the
details and co-ordination of services. It is essential that the employer sets
out the criteria, giving each a standard, or yardstick, by which tenders are
evaluated. Tendering contractors should be made aware of the evaluation
criteria to be used so that the tender can be prepared accordingly.
Evaluation can be assisted if tenderers are required to submit additional
information in support of the tender. This may include:
breakdown of major items into labour, plant, materials, overheads and
profit;
breakdown of costs related to time, volume, method and event;
cash flow forecast.
Rates inserted in schedules, or bills of quantities, by the tenderers should
be examined and compared to ensure that there are no obvious and sig-
nificant departures from what is considered to be reasonable. Suspect
rates may be due to ambiguous descriptions, mistake as to quality, failure
to allow for materials or other causes. Inconsistencies in rates (between
sections of bills of quantities) should be adjusted by agreement if it is
appropriate.
Final selection should not take place before interview with the tenderer.
Key staff proposed by the tenderer should attend the interview and all
important matters should be discussed in detail to ensure that there are no
problem areas that cannot be resolved.
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The criteria for the award of contracts laid down in the EC Directives
are lowest price or most economically advantageous tender. In most cases,
lowest price will be the deciding factor. If the latter is to be adopted, the
contracting authority is required to advertise the fact giving a list (and if pos-
sible, the order of priority) of the criteria to be used in evaluating tenders.
Matters such as completion periods (which may be a competitive element),
maintenance costs, costs in use and technical specifications may be used
for evaluation purposes.
3.8 Rejection: Acceptance: Letters of Intent
In the normal course of events (and subject to certain criteria laid down in
the EC Directives), there will be no problem if a tender is rejected. However,
in the event that a tenderer has been required to do a substantial amount
of preparatory work which is outside the scope of that which is normally
required, the tenderer may be entitled to payment. In the case of William
Lacey (Hounslow) Ltd v. Davis [I9871 2 All ER 712, it was held that there
was no distinction between work done which was intended to be paid for
under a contract erroneously believed to exist and work done which was
intended to be paid for out of proceeds of a contract which both parties
erroneously believed was about to be made. Such work was not done gra-
tuitously and a reasonable price must be paid for it. The same principle was
applied in Marsden Construction Co Ltd v. Kigass Ltd (1989) 15 ConLR
116.
The EC Directives provide that tenders may not be rejected because they
appear to be too low, without allowing the tenderer to give an explanation.
In Fratelli Costanzo SpA v. Comune di Milano (Municipality of Milan)
[I9901 3 CMLR 239, an unsuccessful tenderer commenced proceedings
against the Municipality on the grounds that his tender had been rejected
pursuant to the Municipality's formula which automatically rejected all
tenders which were more than ten per cent lower than the average of all
tenders. It was held that the tenderer had the right to seek enforcement of
the Directive.
The Directives also forbid rejection on the grounds that the tender is
based on equivalent alternative specifications which meet IS0 standards. In
Commission of the European Communities v. Ireland (1988) 44 BLR 1,
an Irish company complained that its tender was rejected because the
Spanish products offered by the tenderer did not comply with Irish stan-
dards specified in the tender documents. The Spanish products complied
with IS0 standards and it was held that the contracting authority (Dundalk
Urban District Council) had failed to comply with Article 3 0 of the Treaty
of Rome by excluding products of equivalent IS0 standards. It should be
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noted that this particular contract was excluded under the threshold provi-
sions of the Public Works Directive, but it was not exempt from the general
provisions of the Treaty of Rome for nondiscriminatory technical
specifications.
Errors in tenders should not normally be cause for rejection. Where
errors in the tender are discovered and dealt with in accordance with the
relevant codes of practice, many potential problems can be avoided. In any
event, if the employer discovers an error in the tender before acceptance,
and the tender is accepted without adjustment, the contractor will not be
bound by the error: McMaster University v. Wilchar Construction Ltd
(1971) 22 DLR (3d) 9 - High Court of Ontario.
Tenderers are often asked to keep their tenders open for acceptance for
a specified period. This does not prevent the tenderer from withdrawing
his tender at any time. Tenderers may be bound by their tenders if there is
consideration. The amount of consideration may only be nominal. Alter-
natively, a Bid Bond may be required by the employer. Once the employer
has unconditionally accepted a tender within the time for acceptance of
tenders (or within a reasonable time if there is no specified time) and pro-
vided that the tender has not been withdrawn, there is a binding contract.
Post-tender negotiations often take place, particularly in the private
sector. Public tenders are less likely to be subject to negotiation. Current
EC law does not cover post-tender negotiations. However, the Council of
Ministers have issued a statement on this matter:
'The Council and the commission state that in open or restrictive procedures all
negotiations with candidates or tenderers on fundamental aspects of contracts,
variations in which are likely to distort competition, and in particular on prices,
shall be ruled out; however, discussions with candidates or tenderers may be held
but only for the purposes of clarifying or supplementing the content of their
tenders or the requirements of the contracting authorities and providing this does
not involve discrimination.' Public Procurement Directives, conference paper
by Robert Falkner, 10 December 1990.
It is not unusual for acceptance to be conditional, usually by way of a letter
of intent. Care should be taken by the employer when drafting a letter of
intent. Equally, the contractor should carefully consider the terms of a letter
of intent in order to understand fully to what extent he has been authorised
to proceed and how payment for work done will be established. Matters to
be addressed when drafting a letter of intent should include:
a detailed instructions clearly describing the work which is to proceed,
distinguishing between design, ordering, taking delivery and execution
of work;
full compliance with the tender documents so far as they apply to matters
for which authority to proceed has been given;
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terms of payment to be made in respect of the matters for which author-

ity to proceed has been given;
provision for termination of contractor's rights to proceed pursuant to
the letter of intent and the employer's liability for payment in the event
of termination;
provision for cancellation of orders placed pursuant to the letter of intent
and the employer's option to pay cancellation charges or to take deliv-
ery of goods ordered;
care of, and responsibility for, work and materials including insurance;
goods and materials to be vested in the employer;
provision to terminate the terms of the letter of intent in the event of
award of the contract and provisions to credit payments made under the
letter of intent against certificates issued under the contract;
provision for settling disputes (usually retaining the same provisions as
the proposed contract).
It is important that the letter of intent should make it clear that it is not an
acceptance of the contractor's tender. It should, however, also make it clear
that the employer has the option to accept the contractor's tender.
Even the most carefully prepared letter of intent may have its problems.
In British Steel Corporation v. Cleveland Bridge Engineering Co Ltd
(1981) 24 BLR 94, the courts had to consider whether, or not, a contract
had been created by a letter of intent. It was considered that each case must
depend on the particular circumstances. However, it was decided that if
a party acted on a request in a letter of intent and was simply claiming
payment, it did not matter if a contract was not created as payment could
be based on quantum meruit.
In C.J. Sims Ltd v. Shaftesbuy PIC(1991) QBD;8-CLD-03-10, the
court had to consider the payment terms of a letter of intent. The terms
provided for reimbursement of reasonable costs, including loss of profit and
contribution of overheads, 'all of which must be substantiated in full to the
reasonable satisfaction of our quantity surveyor'.
At first glance it would appear that the above terms were reasonable
commercial requirements for payment. The employer successfully argued
that it was a condition precedent to any payment being made to the con-
tractor that the costs should be substantiated in full and to the satisfac-
tion of the quantity surveyor. The judge was not disposed to the view that
the contractor should be paid something on account pending full substan-
tiation (which, with respect, is what would normally be expected).
A potential disaster area exists when contracts proceed on the basis of
protracted correspondence and exchanges of letters, all of which contain
elements of change to previous documents and there is no clear definition
of the terms agreed between the parties. In Mathind Ltd v. E. Turner &
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Sons Ltd [I9861 2 3 ConLR 16, the contract was intended to be JCT63.
Exchanges of correspondence and an addendum bill of quantities dealt with
phased handover. The works proceeded but the contract was never signed.
Disputes arose over phased completion dates and liquidated damages. The
court had to consider when and how the contract was made. In doing so
it came to the conclusion that both parties had agreed to phased comple-
tion. As no contract had been signed the contractor could not rely on the
words in clause 12(1)of JCT63 which prohibited modification to the stan-
dard printed form in the contract bills. (It should be noted that in M.J.
Gleeson (Contractors) Ltd v. London Borough of Hillingdon (1970) 215
EG 165, provisions for phased completion were contained in the contract
bills. The provisions were held to be ineffective on the grounds that the
contract stipulated that nothing contained in the contract bills should over-
ride or modify in any way the contract conditions.) The effect of the pro-
visions in the post JCT63 forms of contract regarding precedence of the
contract conditions over the contract bills may be quite different (see Barry
D Trentham Ltd v. McNeil in 2.7, supra).
It is not uncommon to agree to change the conditions, or specification
or details, in the tender documents, prior to signing the contract. Failure
to amend the contract documents to reflect the change may mean that the
change, when made, is a variation to the contract despite the fact that the
parties had agreed to the change prior to signing the contract. In H. Fair-
weather & Co Ltd v. London Borough of Wandsworth (1987) 3 9 BLR
106, the contract was signed after both parties had agreed that the speci-
fied Clifton bricks would not be used and that Funton bricks would be
substituted therefor. There was delay in delivery of Funton bricks. The
contractor claimed that the delay arose out of a variation and claimed an
extension of time under clause 23(e) and loss and expense under clause
l l ( 6 ) of JCT63. The architect granted an extension of time under clause
23(j)(ii)for unforeseen shortages of materials, and refused a claim for loss
and expense. It was held that the substitution was a variation.
In view of the above, it is essential that all agreed changes to the tender
documents should be reflected in the contract to be signed by the parties.
Any agreed change which would otherwise constitute a variation should be
reflected in revised contract bills. If any change affects the completion dates
previously mentioned in the tender documents, the appropriate adjustment
should be made in the contract documents prior to signature. If necessary,
the tender (or contract) programme should be revised.
Finally, with the exception of essential key dates, it may be fatal to incor-
porate the contractor's programme as a contract document. Acceptance of
a tender may be on the basis of the contractor's programme, but its use as
a contract document can cause considerable problems. This aspect will be
dealt with in Chapter 4.
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Monitoring Delay and
Disruption Claims:
Prevention
4.1 Contracts Administration
All forms of contract contain express or implied duties and obligations to

be performed by the employer (or his agents) and the contractor. Contracts
do not usually set out in detail how these duties and obligations should be
performed. It is self-evident that the employer must give access to the site
and provide information in sufficient time to enable the contractor to carry
out the works by the due completion date. The contractor must give rea-
sonable notice of delay or of any claim and the architect, or engineer, must
decide and make extensions of time or certify additional payment.
Whatever the form of contract, it is important that all parties co-operate
with each other in order to ensure that each is provided with sufficient infor-
mation to enable them to carry out their respective duties and obligations.
Too often, contractors believe that they have complied with their contrac-
tual obligations by giving notice of delay and very brief information (if at
all) to support their contention that they are entitled to more time and/or
money. It is not unusual for contractors to complain that no extension (or
insufficient extension) of time has been granted by the architect or engi-
neer. These complaints sometimes persist several years after the contract
has been completed when the first pleadings are being prepared for arbi-
tration. Even at this stage some contractors are unable to show what period
of delay occurred and its effect on the progress of the works. Criticism of
the architect, or engineer, for failing to make an extension which satisfies
the contractor is hardly justified (provided of course that an honest attempt
was made to assess the effects of the delay) if the contractor, himself, cannot
illustrate the effects of the delay.
These problems can be avoided if all parties examine the contract terms
to establish their express duties and obligations and what procedures need
to be adopted in order to ensure that these duties and obligations can be
performed in accordance with the contract.
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Whatever procedures are to be adopted, they should not become a costly

and time-consuming burden so that resources are diverted from the main
objectives of any building and engineering contract - to design and build
the works.
4.2 Possession of Site: Commencement
Before award of the contract, the employer and the contractor should agree
on the period of notice to commence, in order to allow for mobilisation
and the taking of records and photographs showing the condition of access
and of the site prior to possession by the contractor. Any restriction or limi-
tation on the free use of the site should be recorded and the effects (if any)
on programme or cost should be established as soon as possible. Contrac-
tual provisions which envisage possession of the site being given to the con-
tractor within a short period (for example, seven days) should be avoided
if possible. Consideration should be given to allowing the contractor to
mobilise and set out even if there are outstanding approvals which are
essential to commence construction of the permanent works. Early access
to the site should be distinguished from the contractual date which is the
commencement of the period for completion of the works.
4.3 Pre-commencement Meeting
Prior to possession of the site (if practicable before award of the contract)
the parties and their professional advisers should convene a meeting to
discuss and record certain important matters. These should include:
the role and authority of each member of staff participating in the
project;
where the contract provides for delegating powers to other persons,
these powers should be clearly established;
status of the programme, key dates for information, periods for approval,
long delivery periods and special problems;
requirements for named, nominated and selected domestic
subcontractors;
works or materials to be provided by the employer;
procedures for interim valuations and certificates;
procedures for measurement, records, notices, particulars to be provided
and response;
procedures for monitoring the progress of the works, photographs,
video, progress records and updating programme.
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Monitoring Delay and Disruption Claims 79
It is important that the representatives of both parties understand the need

to recognise potential delays and to acknowledge that they may lead to
claims from the contractor and subcontractors. Whatever procedures are
adopted at this initial meeting, they should include measures to avoid or
minimise delay by regular monitoring of design and detailing so that the
construction of the works will not be affected by late issuance of essential
information.
4.4 Regular Progress Meetings
Meetings should be kept to a minimum, but should be sufficient to satisfy

the needs of the project. Each meeting, or series of meetings, should be
designed to suit specific objectives, have the right persons present and take
place at the right time or at sensible intervals.
Three categories of person should attend; those who can inform; those
who can advise; and those who can (and are authorised to) decide on the
issues and delegate action.
The most important features of successful meetings are:
the correct agenda;
accurate records of the meeting;
decisions taken;
identify responsibility for action;
record of action taken (or outstanding) in respect of previous matters;
accurate forecasts or projections;
prompt distribution of minutes.
Where minutes of meeting are inaccurate, or where there are important
omissions, it is essential that these are brought to the attention of the
attendees and the necessary corrections made. Matters which require imme-
diate attention should be dealt with in writing before the next meeting.
Failure to follow these procedures causes major difficulties when trying to
establish facts several years after the event. It is not unusual, when inter-
viewing material witnesses in preparation for arbitration, to be told that the
minutes of meetings did not record what was agreed. Even if it is possible
to verify such allegations, it is sometimes difficult to reconstruct the history
of events.
Records of meetings can often mislead investigators searching to estab-
lish causes of delay several years after the event. A common practice
adopted by contractors is to table a long list of alleged outstanding infor-
mation at each meeting. Many items reappear week after week and month
after month. It is often difficult to distinguish between information requested
far in advance of being required and information which was essential but
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which was neglected by the architect or engineer. Each alleged outstanding

item should be addressed during the meeting, or by written response before
the next meeting, giving the status and anticipated date of issue, together
with a note indicating the programme and progress of any work which may
be affected by the outstanding information.
The agreed minutes including any amendments should be signed by
authorised representatives as a true record of the meeting.
4.5 lnstructions and Drawing Issues
Many instructions and drawing issues are of an explanatory nature to enable

the contractor to construct the original works. Late issuance of information
will lead to claims for delay and/or disruption. The designer must be able to
understand the contractor's programme and make allowance for shop draw-
ings (if applicable),obtaining quotations, ordering and delivery. The designer
should not rely solely on the contractor's requests for information (some-
times the contract does not place an obligation on the contractor to make
any such requests). It is essential to have regular meeting to determine when
information is required in order to meet the programme or to prevent delay.
Few construction contracts proceed without changes of some kind.
Revised drawings should clearly indicate the revisions so that the contrac-
tor can identify appropriate action without searching to find each revision.
Such drawings should be accompanied by a variation order/instruction to
facilitate cost monitoring and control, as well as indicating a possible review
of the effects on the programme.
Some architects and engineers issue drawing under cover of instructions,
letters, transmittal sheets and other forms, without distinguishing between
explanatory details and changes to the original design. This practice does
not facilitate control and often contributes to failure, by the contractor, to
give notice of delay, or extra cost at the earliest possible time.
4.6 Site Instructions: Verbal Instructions
There is an increasing tendency to design and detail the works as they

proceed at site level. This indicates lack of knowledge of design and con-
struction detailing. Projects which end in protracted disputes have often suf-
fered from an unusually high proportion of design and detailing by way of
verbal instructions and hand drawn sketches issued by the designer's site
representative during a regular 'walkabout' on site. It is not unusual, when
investigating causes of delay and disruption, to discover numerous refer-
ences in minutes of meetings to the effect that the contractor was instructed
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to proceed in accordance with a sample, or method, agreed on site. Records

of what was agreed are often difficult, or impossible, to find. Interviewing
site staff months, or years, after the event sometimes assists in this exer-
cise at considerable expense. A dimensioned sketch and/or photograph at
the time of the agreement would avoid any misunderstanding about what
was required and built.
Site instructions and verbal instructions should be used in an emergency
only and not as a method of designing the works. Where verbal instruc-
tions are given, the architect, or engineer, should take the initiative in
making sure that they are confirmed (whether or not there is provision in
the contract for confirmation by the contractor which would give effect to
such instructions).
Most JCT forms of contract, the ICE conditions of contract, the 1987
fourth edition of FIDIC and the 1999 FIDIC Red Book all contain provi-
sions for the contractor to confirm architects' or engineers' verbal instruc-
tions, and such instruction will be deemed to be architects' or engineers'
instructions if not dissented from in writing within the period specified in
the contract. In contrast (possibly a drafting error), there are no provisions
for confirming verbal instructions in the 1999 FIDIC Yellow and Silver
Books. All instructions must be in writing. Under these two FIDIC contracts,
it is unclear as to what the contractor's obligations are if he receives an
engineer's verbal instructions which are not promptly confirmed.
4.7 Form of Instructions
Most contracts do not require an instruction, or variation order, to be in a

particular form. A written site instruction, provided that it is issued by a
person with the contractual authority to give instructions is, for all the pur-
poses of the contract, an instruction authorising the contractor to proceed.
It is effective without the need for a standard form of instruction to confirm
its contractual effect. Likewise, a drawing issued by an authorised person
is an instruction in its own right, regardless of the form of the accom-
panying covering instrument (or if there is no accompanying covering
instrument).
Without proper agreed procedures and consistency for the issuance
of instructions, whether they are explanatory or variations, there is an
increased probability that monitoring and control of cost and delay will be
ineffective. Very often, the full effects of all of the instructions issued during
the course of the project do not come to light until the final account is on
the table and the contractor is reconstructing (with hindsight) the history
of events in order to resist a claim for liquidated damages levied for late
completion.
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4.8 Programme and Progress
With the exception of some of the more recent engineering forms of con-
tract, and the latest editions of GC/Works/l, most standard forms of con-
tract do not place sufficient emphasis on a construction programme. It is
sometimes not even mentioned or required. Having regard to the sums of
money spent on some modern projects and what might turn on events
which affect the contractor's programme and progress, it is essential that
a realistic programme showing how the contractor intends to construct the
works should be available at the outset (see Chapter 3).
There may be problems if the contractor's programme becomes a con-
tract document as failure to follow it in every detail may be a breach of con-
tract. The contractor's obligations are normally to complete the works (or
sections of the works) by given dates. Departures from the programme will
be of no significance so far as the employer's remedies for performance
are concerned. It there are good reasons for introducing key dates (for
example, to facilitate installation of plant and equipment by the employer
or specialists), these can be incorporated as contractual requirements, with
appropriate remedies in the event of the contractor's failure to meet these
key dates.
Another problem (when programmes become contractual documents)
arises in the event of it being impossible to carry out the work in accor-
dance with the programme. In the case of Yorkshire Water Authority v.
Sir Alfred McAlpine and Son (Northern) Ltd (1985) 3 2 BLR 114, the
contractor's programme and method statement became contract docu-
ments. The method statement, which was the contractor's own chosen
method of working, provided for an outlet to a culvert to be constructed by
proceeding upstream. The contract obliged McAlpine to execute the works
'in all respects in accordance with the contract documents.' It was found
that this method was impossible and McAlpine successfully argued that it
was entitled to a variation order to enable it to carry out the work. (It should
be noted that the contract was based on the ICE conditions which provided,
in clause 13(1),for the contractor to be relieved of its obligations to carry
out work which is physically impossible.)
The 1987 fourth edition of FIDIC contains similar provisions regarding
impossibility in clause 13. However, the 1999 family of FIDIC contracts do
not provide for any similar relief in the event where the works are physi-
cally impossible to execute.
ICE and FIDIC contracts are well known for their 'clause 14 programme'.
These provisions require the submission and acceptance of a first pro-
gramme at the outset and regular updates in the event where actual pro-
gress departs significantly from the first or subsequent programmes. The
1999 FIDIC family of contracts continues this practice with much improved
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provisions in clause 4.21 (progress reports) and clause 8.3 (programme).

The provisions of these two clauses, if put into practice, are likely to
minimise delays and disputes.
Having commenced work on the basis of a realistic programme, any sig-
nificant departures from it should be monitored. Once delay has occurred
which affects any important activities, it is essential that the effects of the
delay are monitored, and that the programme is immediately updated to
show the effects of the delay. If actual progress is monitored against a pro-
gramme which is no longer valid, it is difficult, or even impossible, to estab-
lish the effects of a particular delaying matter on the overall programme
and completion date. All progress, and delays, should be monitored against
a programme which represents the contractor's proposed 'programme of
the day', that is, a programme which has been revised to take account of
all previous delays. As delays occur, these affect critical and non-critical
activities. If regular updating is not done, the critical path may change,
making the assessment of the effects of further delays a matter of guess-
work. An example of how a critical path may change is given in Figure
4.1. In practice, this is no simple matter, and on contracts which have
numerous, and often, continuing delays, it can only be achieved by addi-
tional staff and the use of various software and computers. It can be a costly
exercise, and periodic updating may be a compromise which achieves rea-
sonable results at an acceptable cost.
4.9 Notice: Records and Particulars
Many delay claims by contractors fail owing to lack of notice and/or failure
to justify any (or sufficient) extension of time, or additional payment,
because of a lack of records. No truer comment has been made than that
of Max W. Abrahamson in his book Engineering Law and the 1.C.E Con-
tracts, fourth edition at page 443; quote: 'A party to a dispute, particu-
larly if there is arbitration, will learn three lessons (often too late): the
importance of records, the importance of records and the importance of
records.'
Whether, or not, there are contractual requirements to give notice of
delay, or extra payment, contractors must, if they are to maximise the relief,
or compensation, within the contractual remedies, give written notice of
the delay or circumstance giving rise to the claim. Where the contractual
provisions are stringent (and particularly where they are conditions prece-
dent), contractors should ensure that each, and every, member of staff be
made aware of these requirements and that each knows what role to play
within contractual procedures designed to manage all delay and disruption
claims. Where the contractor's staff have a good working relationship with
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YY PROGRAMME
A-B
I \
I C-E
\ - L
A-D
- --
0-E L1
-
7
PROGRAMME
DELAY TO
A-B COMPLETION
I
I-+
I =-
-
I a- C
w C-E 3
-
D-E
PROGRESS
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z = EVENT 21-22 = ACTNlrY
0 DURATION OF
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Figure 4.1 Example of change in critical path caused by delay
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the employer's staff, all notices should be clearly set out, identifying the
contractual provisions under which the notice is being given, together with
sufficient information to enable the recipient to be aware of the actual, or
likely, effects of the matters in respect of which the notice is being given.
In the unfortunate (and sadly, too frequent) cases where notice of any kind,
no matter how well justified, produces a hostile reaction and continuous
allegations aimed at 'muddying the waters', there may be some justification
in couching the terms of any notice so that it is almost disguised. If this
approach must be adopted, the significance of the notice must be capable
of being understood in the light of other documents and the surrounding
circumstances.
Having given notice, the contractor should keep contemporary records
in order to illustrate the effects of the events, or circumstances, for which
notice has been given. The recipient (the architect, or engineer) should also
keep contemporary records. It is good practice to agree what records should
be kept, to jointly monitor events and to agree facts during the progress of
the works. Many contracts now contain express provisions for keeping
records. Failure to agree facts is often caused by attempting, at the same
time, to establish liability and entitlement. If both parties address their minds
solely to agreeing facts as facts, leaving liability and entitlement for another
day, agreement may be more readily achieved.
The most common records which ought to be kept are:
a MasterDetailed Programme and all updates with reasons for each

update (preferably showing delays to each activity);
a adverse weather conditions, including high winds and abnormal
temperatures;
a Progress Schedule indicating actual progress compared with each
revision of the programme;
a Schedule of Resources to comply with the original and each revision of
the programme;
a records of actual resources used based on progress;
a cash flow forecast based on the original and each revision of the
programme;
a records of actual cash flow;
a schedule of anticipated plant output;
a records of actual plant output on key activities;
a records of plant standing and/or uneconomically employed (with
reasons);
a schedule of anticipated productivity for various activities;
a records of actual productivity on key activities;
a schedule of anticipated overtime (and the costs thereof) in order to
comply with the original and each revision of the programme;
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records of actual overtime worked and the costs thereof;

progress photographs and (where appropriate) photographs of work to
be covered up;
where appropriate, video records showing sequence and method of
working;
drawing register with dates of each revision and notes of amendments;
site diaries and diaries of key staff;
minutes of meetings and notes kept at meetings;
cost and value of work executed each month (for the project);
cost and value of work executed each month for all projects (company
turnover);
allowance for overheads and profit in the tender sum;
cost of head office overheads each month (quarterly or yearly if not pos-
sible on a monthly basis);
profit (or loss) made by the company for each accounting period.
Many contractors do not have the management information systems or pro-

cedures to keep all of these records. However, many of them are capable
of being kept on site with the minimum of extra effort. It is important to
specify what records should be kept by different members of staff. For
example, the contents of the diary, and records kept by the project manager
will be different from those kept by a section foreman. Company policy
should lay down procedures and guidelines so that there is the minimum
of duplication (save where it is essential for verification) and that there are
no gaps in the information to be collected.
The effect of failure to give notices and particulars varies from contract
to contract. JCT, ICE and FIDIC contracts up to and including the 1987
fourth edition of FIDIC, for example, did not provide for notices and/or
particulars to be a condition precedent to the contractor's rights to a claim
for extensions of time or additional costs. However, the 1999 FIDIC Red,
Yellow and Silver Books have changed all that. These new contracts require
written notice of all claims (for time and money) within twenty-eight days
(clause 20.1). This provision is a condition precedent and the contractor
will therefore lose his rights to such claims if he fails to give notice in accor-
dance with this clause (see 1.7, supra). The 1999 FIDIC Green Book makes
provision of an early warning a prerequisite to an extension of time or addi-
tional costs (clause 10.3), with the proviso that some relief may be given
having regard to any reasonable steps that the engineer may have taken to
reduce the effects if an early warning had been given.
Such provisions, which effectively 'time-bar' claims if the contractual
machinery is not followed, are extremely onerous. It may be easy to comply
with a provision to give notice within twenty-eight days in some circum-
stances, but not in others. The demand on management resources to iden-
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tify potential claim events in order to comply with the contract is likely to
increase costs. Many notices will be for minor events which may not sub-
sequently affect the works. Paperwork will increase unnecessarily and the
resources required to deal with these notices and respond to them will also
be increased.
It should be noted that in some civil law jurisdictions, contracts may not
be permitted to oust a party's legal rights to a remedy or compensation by
the incorporation of 'time-bar' provisions. In such jurisdictions, contractors
may be able to claim even if there has been failure to give notice within a
specified period. However, it is advisable to follow the contract whenever
possible to avoid the potential high cost of finding out if a late notice is
good enough. Where time-barring of claims is outlawed, it should not be
seen as an excuse to leave all notifications to the last minute.
MF/l, a contract used extensively on major projects, contains very
onerous provisions. Whilst sub-clause 33.1 (extensions of time) contains
requirements to give notice 'as soon as reasonably practicable' (not a con-
dition precedent), sub-clause 41.l(a) (notification of claims) requires notice
to be given within twenty-eight days, failing which the claim will not be
allowed (a condition precedent).
The requirements to keep particulars and submit accounts of claims in
the ICE and FIDIC contracts (including the 1999 FIDIC Red, Yellow and
Silver Books) are subject to the proviso that the contractor does not lose
his rights to any claims if he fails to comply, however his entitlement may
be severely prejudiced by such failure (clause 53 of ICE and 1987 fourth
edition of FIDIC and clause 20.1 of 1999 FIDIC contracts).
On the employer's side of the fence, the architect, engineer, clerk of
works and other staff should know what records they should each keep.
If they are not kept jointly with the contractor, they should be agreed
wherever possible. Keeping records for the purposes of defeating a claim
in an arbitration may appear to be good practice, but it is more sensible
to use them to settle contentious issues at the time so as to avoid costly
disputes. In addition, if the contractor is aware that his grounds for a
claim are doubtful (having regard to better records kept by the employer's
professional team), it is more likely that the claim will be dropped and
he will make an effort to get on with the job and possibly make up some
lost time.
The employer's professional team should keep additional records to
monitor delays by the contractor and delays for which no additional
payment is payable.
Whatever records are kept, they are likely to be invaluable in the prepa-
ration of particulars in support of a claim. It should be remembered that
particulars should, in addition to supporting the claim, be persuasive. It is
all very well merely submitting all relevant records as particulars without
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some argument and illustration to set out the contractor's case and the enti-
tlement sought, on the basis that it is the architect, or engineer, who is
responsible for assessing the claim; but, once the architect, or engineer, has
made their assessment, it is sometimes difficult to persuade them to change
their minds. Their assessment may be insufficient because they did not
appreciate the effects of some delays on the method, sequence or timing
of an operation, or because they did not recognise the significance of some
of the records submitted. Naturally, they may be reluctant to admit this fact,
particularly if it will bring to light their inexperience, or emphasise that the
delay was due to their own incompetence. Good particulars should, in addi-
tion to providing supporting records, illustrate the effects of the events, or
circumstances giving rise to the claim. To this end, the contractor is well
advised to provide details and diagrams indicating:
what ought to have occurred if there had been no delaying event, or
circumstance;
what actually occurred as a result of the delaying event, or circumstance;
analysis of facts, calculations, explanations and arguments to show how
the delaying event, or circumstance, was responsible for the change in
the method and/or programme.
4.10 Delays after the Contract Completion Date
The best advice that can be given to any employer is not to cause any delay
after the contractual completion date (extended, if applicable) has passed
and when the contractor is in culpable delay. Very few contracts deal with
delays by the employer after the completion date, and in many cases, once
such a delay has occurred, the time for completion is no longer applicable
and the contractor is allowed a reasonable time for completion of the works.
Even where the contract does provide machinery for extending the date for
completion in the event of such delays, there are few guidelines as to how
the extension should be dealt with, and the effects on the employer's rights
to liquidated damages. The Singapore Architects Standard Form of Con-
tract contains very detailed provisions in clause 24 (see Figure 4.2). In this
form of contract, it is intended that the employer may recover liquidated
damages during a period of culpable delay by the contractor (even if a con-
current qualifying delay should occur during the period of culpable delay).
Only if the contractor is not himself in delay is it intended that the
employer's rights to recover liquidated damages be suspended during a
further delay caused by a qualifying event or circumstance. However, with
the greatest respect to the distinguished author of these provisions, they
are unduly complicated, and they are likely to fail to protect the employer's
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ORIGINAL COMPLETION PROGRAMME
EXTENDED COMPLETION PROGRAMME
(DUE TO D M Y S DURING CONTRACT PERIOD)
PROGRESS CD
r ////////////I a&
L
I 1 2
lDC DELAY CERTIFICATE

(Contract not cornplata by axtondad dote)
I I Q
3
TERMINATION OF DELAY CERTIFICATE I I fa
l- (Contractor's dolay caasos)
LD 4% 0
6'
lFDC FURTHER D E U Y CERTIFICATE
(Contractor's dolay rscornrnoncos)
CD - CULPABLE D E U Y (by Contractor)
- DELAYING MATTER (after extended date)
lCc COMPLETION CERTIFICATE
(Practlcal cornpletlon)
DM
LD - PERIOD FOR LIQUIDATED DAMAGES
Figure 4.2 Clause 24 - Delay in completion and liquidated damages; SIA form of contract
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rights to liquidated damages if the delay which occurs (after the completion
date has passed) is one within the employer's control and which was caused
by an event which would in any event have prevented the contractor from
completing by the due date (provided of course that the employer was not
relying on the contractor's progress in order to comply with a contractual,
or statutory provision). Possible circumstances which give different results
are given in Chapter 5.
If such delays cannot be prevented, careful monitoring and records are
vital where there are several causes of delay after the completion date has
passed.
4.11 Minimising Exposure to Claims: Prevention
Stringent notice provisions and requirements to give particulars may be

effective in avoiding claims by contractors who do not follow such provi-
sions. However, this may increase the contract price and lead to conflict
throughout the contract.
Whether, or not, there are sensible contractual provisions, and whether,
or not, the contractor complies with them, the employer's professional advi-
sors can minimise exposure to claims by ensuring that they do not cause
delay by matters within their control (such as issuing late information). It is
a mistake to assume that information can be delayed on the grounds that
the contractor is in delay and is not ready for it. In many cases the con-
tractor will be able to make out a case for an extension of time (or even
time at large), particularly if the information is received at a time when it
can be shown that it would have been impossible to complete the works
by the due date having regard to all of remaining activities (see Figure 4.3).
Scheduling issuance of information in accordance with the contractor's
progress is a recipe for disaster and to be avoided at all costs.
Where delay and/or disruption claims occur, careful attention to records
and constant monitoring of the effects will enable the employer to minimise
his exposure. Inflated, or exaggerated, claims can be refuted. Costs which
are partly to be borne by the contractor can be identified and adjustments
made (see Chapter 7 - concurrent delays). Even where delays on the part
of the employer justify an extension of time, the contractor's claim for
payment can be reduced, or disallowed, where it can be shown that the
contractor was also in delay and the costs claimed would, in any event,
have been incurred by the contractor.
Delays, and claims arising out of them, are almost inevitable in con-
struction contracts. If this fact is acknowledged, and proper procedures are
devised to deal with them, then claims would be more palatable to those
having to pay for them. Usually, all parties are at fault to a varying degree,
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@ CONTRACTOR'S DELAY
@ DELAY IN ISSUING INFORMATION
@ TIME REQUIRED TO COMPLETE ALL REMAINING ACTIVITIES

WHICH CANNOT PROCEED UNTIL INFORMATION ISSUED
@ DELAY TO COMPLETION
V DATE INFORMATION REPUlRED IN ACCORDANCE WlTH PROGRAMME
DATE INFORMATION ISSUED IN ACCORDANCE WlTH PROGRESS
Figure 4.3 Time required to complete remaining work after late instruction
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and adversity thrives on one or more parties attempting to place all of

the blame on someone else. Contractual provisions do not, in themselves,
avoid these problems. Education and training in contracts administration
should be encouraged to improve the understanding of claims and how they
arise.
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Formulation and
Presentation of Claims
5.1 Extensions of Time Claims
All modern building and engineering contracts contain provisions for exten-
sions of time in the event of delay. The nature of the work and the envi-
ronment in which the work is carried out are such that it is almost inevitable
that events and circumstances will cause completion of the work to be
delayed beyond the original completion date. Notwithstanding, claims for
extensions of time probably cause more disputes than any other contrac-
tual or technical issues. Major obstacles to prompt settlement of claims for
extensions of time claims are:
a the erroneous assumption that an extension of time is automatically
linked to additional payment;
a late, insufficient or total lack of notice of delay on the part of the
contractor;
a failure to recognise delay at the appropriate time and maintain contem-
porary records;
a failure to regularly update the programme so that the effects of delay
can be monitored against a meaningful 'programme of the day';
a poor presentation of the claim to show how progress of the work has
been delayed;
insistence, on the part of the employer's professional advisers, that
unreasonably detailed critical path programmes are essential in order to
assess the effects of the delay;
a the probability that the cause of the delay will reflect on the performance
(or lack of it) on the part of the employer's professional advisers;
a pressure, on the part of the employer, to complete on time, irrespective
of delays which occur.
The first obstacle - delay means money - is understandable. Nevertheless,
it should not be a consideration when dealing with extensions of time. It
should be clearly understood that an extension of time merely enables the
contractor to have more time to complete the works and the employer to
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preserve his rights to liquidated damages. An extension of time awarded

for a cause of delay which appears to have a financial implication (delay
within the control of the employer) does not necessarily lead to an entitle-
ment to additional payment. If the contractor is, himself, also in delay, then
the additional costs arising out of the extended period to execute the works
may (in total or in part) have to be borne by the contractor (see concurrent
delays, infra).
On the other hand, an extension of time awarded for neutral events (for
example adverse weather conditions) will not necessarily deprive the con-
tractor of a claim for additional payment. The latter point was clearly illus-
trated in the case of H. Fairweather & Co Ltd v. London Borough of
Wandsworth (supra). In this case the arbitrator had concluded that the
architect had been correct in awarding eighty-one weeks' extension of time
for the dominant cause of delay (strikes). The arbitrator had stated that the
extension did not give rise to a claim for direct loss or expense. The con-
tractor sought to establish that eighteen weeks' extension of time ought to
have been granted for causes of delay which would give rise to a claim for
loss or expense.
The contract was JCT63 in which some of the causes of delay (or dis-
ruption) in the loss and expense clause (24) are set out almost verbatim as
some of the causes of delay in the extension of time clause (23). This is
unfortunate and misleading and may be one of the reasons for some prac-
titioners to assume a link between extensions of time and claims for addi-
tional payment. This misconception was cleared up by Judge Fox-Andrews
QC in a hypothetical example which is summarised below:
A tunnelling contract proceeds through the winter and is due to complete on 31
July. A variation instruction is issued in April which requires a further three
months for completion of the works and for which an extension of time is granted
up to 31 October. Two weeks before the revised completion date a strike occurs
which continues until 31 March. The works cannot proceed and time passes
through a second winter. On 1 April, the contractor recommences work, but due
to the fad that it had not been able to protect its plant and equipment during
the strike it takes two months to complete the remaining work. An extension of
time for eight months for the strike (under clause 23(d) of JCT63) would not
prevent the contractor from recovering loss and expense under clause ll(6).
(See Figure 5.1.)
Nevertheless, in the circumstances of the case, the judge recognised the
practical difficulties in the event of the extension of time not being made
under the provision which linked the extension to the provisions of clauses
11(6)and/or 24(1) and he remitted the matter to the arbitrator for further
consideration. It should be noted that clause 26.3 of JCT80 contains pro-
visions which suggest a link between a claim for loss and/or expense and
certain extensions of time made under clause 25. Whilst this may be desir-
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Formulation and Presentation of Claims 95
ORIGINAL CONTRACT PERIOD
STRIKE
=
COMPLETE
WORK
EXTENSION OF TIME DUE TO STRIKE
*---
I QUALIFYING PERIOD FOR LOSS & EXPENSE
=I -4
Figure 5.1 H. Fairweather & C o Ltd v. London Borough o f Wandsworth
able from a practical point of view, practitioners should not be misled into
assuming that an extension of time for the specified relevant events will
bring with it an entitlement to additional payment.
The next three obstacles, notice, contemporary records and programme,
are all practical matters which can only be addressed by ensuring that ade-
quate contracts administration procedures are being followed from the date
of commencement of the works. Whilst the architect, or engineer, must do
their best to estimate the length of any extension of time which may be
due, irrespective of the lack of notice and particulars given by the contrac-
tor (London Borough of Merton v. Stanley Hugh Leach Ltd, supra,
Chapter I),contractors cannot complain if the extension made on the basis
of inadequate information does not live up to their expectations.
5.2 Presentation of Extensions of Time Claims
Most contracts do not require the contractor to do more than give notice
of delay, maintain records and provide particulars. Notice provisions vary.
Some examples are:
JCT80 - '. . .whenever it becomes reasonably apparent that the
progress of the Works is being or is likely to be delayed the Contractor
shall forthwith give written notice . . .' (Clause 25.2.1).
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GC/Works/l, Edition 3 and 1999 - Notice may be given at any time,

but not '. . . after completion of the Works' (clause 36(4)).Clause 35 con-
templates regular review of extensions of time, but there is no link to
clause 36.
ICE fifth edition - Full and detailed particulars '. . . shall be given within
28 days after the cause of the delay has arisen or as soon thereafter as
is reasonable in all the circumstances. . .' (clause 44(1)).Similar provi-
sions appear in the sixth and seventh editions.
JCTSO goes on to require the contractor to give particulars of the
expected effects of the delay (clause 25.2.2.1) and an estimate of the
extent of any delay in completion of the works beyond the completion
date (clause 25.2.2.2).
None of the above provisions requires the contractor to show the effects
of the delay or how it arrived at its estimate of the period of delay. Pro-
vided that the contractor has given details of all events, dates, what work
was affected and the like (together with an estimate of the delay in the case
of JCT80), it appears that the contractual provisions have been satisfied
and the onus is then on the architect, or engineer, to decide what exten-
sion is reasonable on the basis of the particulars provided and/or on the
basis of further information obtained from other sources. Many contractors
only provide information (often insufficient) and rely on the architect, or
engineer, to make a reasonable extension of time. This tactic can be suc-
cessful, but there is a risk that the extension made will be insufficient. Not
all is lost, as the contractor can always present his case at a later date,
hoping to persuade the opposition that more time is justified. The prob-
lems with this approach are:
it is usually more difficult to persuade someone to change their mind
after they have made a written extension of time unless there is addi-
tional evidence which can be used to explain a change in the period of
the extension;
there will almost certainly be a period of protracted discussion during
which the current (extended or otherwise) completion date and the
progress of the works are inconsistent with a realistic programme and a
subsequently revised extended completion date.
The NEC and the 1999 FIDIC contracts partially address the above
problems.
Clause 32.1 of the NEC requires the contactor to show the effects of
implemented compensation events and of notified early warning matters
on each revised programme. Clause 64.1 requires the project manager to
assess a compensation event if the contractor has not submitted a revised
programme.
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Clause 4.21 of the 1999 FIDIC Red, Yellow and Silver Books requires
the contractor to compare actual and planned progress and to show details
of any event or circumstance which may jeopardise completion.
The two problems listed above must be avoided or their effects will be
compounded, making it difficult to monitor future delays and to make real-
istic extensions of time having regard to all of the circumstances. The better
approach, on the part of the contractor, is to present his claim for an exten-
sion of time, showing how he arrived at his estimate of delay and the effects
on completion of the works. If the contractor has a detailed critical path
programme using one of the well-tried software packages, or a tailor-made
package, then this task can be simplified. Unfortunately, many contractors
who use such packages become complacent, believing that the programme,
and the software used, is the answer to all of their problems. Computer
applications can only be truly effective if the delays are quickly identified
and steps are taken immediately to monitor events and update the pro-
gramme. In many instances, full-blown computer applications are not
necessary. Carefully prepared linked bar chart programmes can be very
effective provided that the original logic is right.
Example 1: A single cause of delay on the critical path

A linked bar chart showing how the contractor intended to complete the
works in twenty-two weeks is shown in Figure 5.2.
A qualifying delay (Dl)of two weeks occurred during weeks six and seven
affecting progress of activity B-E (which is on the critical path - see Figure
5.3).In these circumstances it is a relatively simple matter to recognise that
completion of the works was likely to be delayed by two weeks and an
extension of time should be made for the full period of delay giving a revised
completion period of twenty-four weeks.
The above example is straightforward as it deals with delay which is on
the critical path and there are no concurrent delays. What is the situation
in the event of delay which is not on the critical path? Some authorities
exist which may be of some assistance (see Example 2).
Example 2: A single cause of delay - not on the critical path

Using the same linked bar chart in Figure 5.2, a qualifyiig delay 032) of
two weeks occurred during weeks six and seven which affected the progress
of activity F3-G (which is not on the critical path - see Figure 5.4). In these
circumstances there is no effect on the completion date and no extension
of time is necessary.
In Glenlion Construction Ltd v. The Guinness Trust (supra), the judge
had to consider matters of extensions of time where the contractor had pre-
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pared a programme showing completion of the works before the contrac-

tual date for completion. Tenders were invited on the basis of a contract
period of 104 weeks. Glenlion submitted an alternative tender for com-
pletion in 1 1 4 weeks which was accepted by Guinness. The completion
date inserted in the contract was 114 weeks after the date for possession.
The contract required Glenlion to produce a programme showing com-
pletion 'no later than the date for completion' and Glenlion complied by
producing a programme which showed completion in 1 0 1 weeks. There
were delays and disputes arose as to Glenlion's entitlement to an exten-
sion of time. The crucial text of the judgement is (at page 104):
'Condition 23 [extensions of time] operates, if at all, in relation to the date for
completion in the appendix. A fair and reasonable extension of time for com-
pletion of the works beyond the date for completion stated in the appendix might
be an unfair and unreasonable extension from an earlier date.' [Emphasis added]
It must be concluded that if any delay occurs then it is not necessarily correct
to make an extension of time equal to the period of delay. Some, or no,
extension of time may be required. How much extension (if any)? The fol-
lowing quote from Hudson 's Building & Engineering Contracts, tenth
edition, First Supplement at page 639 may be helpful:
'. . . a contractor may be in advance of planned progress and an event justify-
ing an extension will only have the effect of his losing that advantage, should
some later default occur, but not imperil the actual date. Ideally such an exten-
sion need only be given if the contractor later has need of it - i.e. by being in
culpable delay. . . .'
The above quote from Hudson confirms the widely held view that any float
in the contractor's programme is for the benefit of the contractor and
any delay on the part of the employer which reduces that float may have
to be taken into consideration when considering the time required for
completion.
This concept can be applied to Glenlion v. Guinness as shown in Figure
5.5. Bar A indicates the period for completion stated in the tender docu-
ments (104 weeks), bar B indicates the period for completion stated by
Glenlion in the alternative tender (114 weeks, which was accepted by
Guinness) and bar C indicates the period indicated in Glenlion's pro-
gramme (101 weeks). The programme shows completion thirteen weeks
before the contractual date for completion.
Assume that a delay of five weeks occurs at the outset of the contract
for which there is power to make an extension of time (that is, a qualify-
ing delay or relevant event - bar D). This has the effect of reducing the
contractor's float from thirteen weeks to eight weeks. No extension of time
is necessary as completion is not likely to be delayed beyond the contrac-
tual date for completion.
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--
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A further qualifying delay of four weeks occurs during the contract period
(bar E). Again, this only reduces the contractor's float from eight weeks to
four weeks and no extension of time is necessary. Another qualifying delay
of four weeks occurs towards the end of the contract which takes up the
remaining float (bar F). Again, no extension of time is necessary.
Four weeks before completion, a further delay of four weeks occurs
which does not qualify for an extension of time (for example, culpable delay
on the part of the contractor). In these circumstances the contractor has
need of an extension of time and it would therefore be reasonable to make
an extension of time of four weeks. Difficulties may arise under JCT80
because the extension of time clause (25.3.1) contemplates an extension
of time being made if '. . . completion of the Works is likely to be delayed
[by the relevant event] beyond the Completion Date. . .'. In the above
example, completion of the works was delayed beyond the completion
date by an event which did not qualify for an extension. However, the cir-
cumstances described in this example may be covered by the provisions of
clause 25.3.3 which empowers the architect to '. . . fix a Completion
Date later than that previously fixed if in his opinion the fixing of such later
Completion Date is fair and reasonable having regard to any of the
Relevant Events . . .' [Emphasis added]. Some may argue that clause
25.3.3 does not apply in these circumstances. Even if that view were to be
correct, the employer would be unlikely to succeed in claiming liquidated
damages for late completion when it has been partly responsible for the
delay to the progress of the works. Regard may have to be paid to the
nature of the contractor's culpable delay. Sheer dilatoriness on the part of
the contractor may be viewed in a different light from matters such as a
plant breakdown or failure to obtain materials in spite of taking all reason-
able measures.
Those who resist making an extension of time in circumstances similar
to the above example may be persuaded to change their view by consid-
ering the position if any (or all) of the delays in bars D, E and F had been
due to the contractor's own delay and the delay in bar G had been due to
a qualifying delay. In these circumstances, there is no room to argue that
an extension of time is not required. This would appear to be the case even
if the contractor's own delays had been due to dilatoriness, since the con-
tractor would not be in breach of its obligation to complete until the com-
pletion date had passed.
The Glenlion case only dealt with delays and extensions of time when
the contractor's programme showed early completion. The South African
Case, Ovcon (Pty) Ltd v. Administrator Natal (infra), also dealt with delays
when the contractor's programme showed early completion. However, the
Ovcon case did not deal with extensions of time because the contractor's
programme showed completion four months earlier than the contract com-
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MONTHS 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5
CONTRACT PERIOD
FLOAT
OVCON'S PROGRAMME 0 I- I
,
ACTUAL PROGRESS
PROLONGATION 0
Figure 5.6 Ovcon (Pty)Ltd v. Administrator of Natal 1991 (4) SA 71
pletion date, and the contractor finished one month early as a result of a
three months' delay by the employer (see Figure 5.6). The Ovcon case was
concerned with the additional costs claimed by the contractor (which Glen-
lion did not have to consider) and is discussed in 5.9 (infra).
It should be noted that clause 63.3 of the NEC contains the following
provision:
'A delay to the completion date is assessed as the length of time that, due to
the compensation event, planned Completion is later than planned Comple-
tion as shown on the Accepted Programme.' [Emphasis added]
It follows that if the accepted programme showed early completion, any
qualifying delay which affected the planned completion date would merit
an extension of time. Therefore, provided that the original float in the con-
tract was not eroded by the contractor's own default, the period of float
would be preserved.
Note - Clause 33 of GC/Works/l, Edition 3 and 1998 Edition, requires
the contractor's programme to '. . . use the whole period for completion.'
Example 3: Concurrent delays - critical and non-critical

Using the same linked bar chart in Figure 5.2, the delays referred to in
examples 1and 2 above occurred at the same time (see Figure 5.7). If both
of the delays were qualifying delays, an extension of time of two weeks is
necessary for the delay (Dl) which affected activity B E . If the delay to
activity 5 E is a qualifying delay, and the delay (D2) to activity J3-G is due
to the contractor's culpable delay, an extension of time of two weeks is
necessary. This is the case even when it is clear that the concurrent delays
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are operating during identical periods. This would also be the case if the
contractor's culpable delay (D2) to activity B-G was on a parallel critical
path and therefore also delaying completion by two weeks.
If the delay (Dl) to activity J3-E was due to the contractor's culpable
delay, and the delay (D2) to activity B-G was a qualifying delay, then no
extension of time would be necessary.
Example 4: Concurrent delays followed by

subsequent delays
Using the same linked bar chart in Figure 5.2, the delays referred to in
Examples 1-3 above were followed by further delays of seven weeks (D3)
and five weeks (D4) to activities B-G and H-K respectively. If delays (Dl)
and (D2) were both qualifying delays (or if delay D2 was a nonqualifying
delay), an extension of time of two weeks should already have been made
(completion in twenty-four weeks). If delay (D3) was also a qualifying delay
it would have the effect of delaying commencement of activities G H and
H-K, but no extension of time would be necessary because the float allowed
for activity H-K is more than sufficient to absorb the delay (the float is
reduced from five weeks to four weeks - see Figure 5.8).
However, for the reasons given previously, if delay (D4)occurred because
of some event which did not qualify for an extension of time (for example,
non-availability of materials, such as road surfacing, which could not be
stored on site for use), an extension of time may be necessary because the
contractor had need of it (see Figure 5.9). In these circumstances, quali-
fying delays 0 2 ) and (D3) had reduced the contractor's float and non-
qualifying delay (D4) had used up more than the remaining float, thereby
causing completion to be delayed by one week (completion in 2 5 weeks).
If delays (D2) and (D3) had not occurred, there would have been sufficient
float remaining in activity H-K to absorb the delay (D4) and there would
have been no delay to completion beyond the previously extended com-
pletion period of twenty-four weeks.
Numerous permutations may arise and each delay and its effects on the
remaining float and the completion date need to be considered using the
principles described above.
5.3 Delays After the Contract Completion Date
It is well known that the extension of time provisions of JCT63 (clause 23)
do not deal with delays which occur after the contract completion date
(extended or otherwise) has passed and the contractor is in culpable delay.
Indeed the clause is drafted in terms which appear to preclude making an
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extension of time for any delay which occurs after '. . . any extended time
[date] previously fixed. . . .' [Emphasis added] That is to say, even if an
extension of time ought to have been made for previous delays, if the exten-
sion has not been made by the (then) current extended completion date,
and a new (otherwise qualifying) delay occurs, there is no power to extend
time for completion. This situation does not appear to be capable of rec-
tification by subsequently making an extension of time for the previous
delay, thereby causing the new delay to occur before the subsequently
revised extended completion date.
It is doubtful if any current contract in the United Kingdom is executed
under the terms of JCT63. However, extensions of time provisions identi-
cal to JCT63 are still in everyday use in many parts of the world. Bahrain,
Cyprus, Hong Kong and Jamaica are a few examples. Wherever these con-
tracts are in use, it is therefore essential to make extensions of time for all
known delays (whether, or not, notified by the contractor) before the exist-
ing completion date has passed. Failure to do so may cause time to be at
large and invalidate the liquidated damages provisions.
Problems associated with delays after the completion date are not con-
fined to JCT63, Hudson's Building & Engineering Contracts, tenth
edition, First Supplement at page 653:
'One further matter not covered by the vast majority of extension of time clauses
is whether they are intended to operate during a period of culpable delay in
respect of matters which, but for the contractor being in delay and already liable
for liquidated damages, would entitle the contractor to an extension. Careful
analysis shows that, if so, additional machinery is required. . . . No UK standard
form as yet contains any such provision.'
The distinguished author of Hudson has gone to great lengths to introduce

the necessary 'additional machinery' in clause 24 of the form of contract
issued by the Singapore Institute of Architects. It is not considered to be
necessary to deal with this clause at length in this chapter. However, a
diagram showing how the clause is intended to operate is shown in Chapter
4 (see Figure 4.2, supra).
Other widely used forms of contract at the time of publication of the
First Supplement to Hudson were: the fifth edition ICE conditions of con-
tract, third edition FIDIC, GC/Works/l Edition 2 and a few minor works
forms of contract. These forms of contract do not appear to prohibit exten-
sions of time after the completion date has passed. However, the provi-
sions are unclear and there is no guidance as to the period of extension,
and its effect on the employer's rights to liquidated damages. Later forms
of contract, such as JCTSO and fourth edition FIDIC, offer nothing to assist
in this situation. The Intermediate Form of Contract (IFC84)expressly pro-
vides for extensions of time to be made for delays which occur after the
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1 10 Construction Contract Claims
ORlClNU PROCRANUE
V//////////////////////////////A
DELAY (Dl)
w PROGRESS \ EOT (NCD1)
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Figure 5.10 Delay by employer after completion date
completion date has passed, but there are no rules setting out how this
should be done.
These problems are addressed in the following example (see Figure
5.10).
In this example it can be seen that a delay (Dl) which occurs before the
contract completion date is capable of being dealt with by an appropriate
extension of time. A new completion date (NCD1) can be fixed according
to the circumstances.
When a new qualifying delay (D2) occurs after the completion date has
passed and the contractor is in culpable delay, what period of delay should
qualify for an extension of time? Should it be the total period of delay (TD)
from NCDl to the earliest completion date caused by the new qualifying
delay, or should it be for the nett period of the new qualifying delay (ND)?
Can liquidated damages be levied?
Consider two possible alternatives:
Alternative A
Eight weeks after the contract completion date, the contractor commences
excavation for the final connections to the foul drainage. The work ought
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to have been carried out not later than two weeks before the completion
date. With the exception of delay (Dl),there have been no delays for any
reason other than the contractor's failure to proceed in accordance with its
programme. Unknown existing gas main and power cables are discovered
which necessitate a variation to change the routing of the drainage and
the construction of an additional inspection chamber. The additional work
causes a delay of one week (D2) and completion of the works is delayed
by one week.
In these circumstances, had the contractor not been in culpable delay,
the necessity for a variation would have come to light before the comple-
tion date and an extension could have been made at the time. Therefore,
if the contractor had been proceeding in accordance with his programme,
one week extension of time (beyond the date already fixed as a result of
delay D l - NCD1) would have been reasonable (ND).
Alternative B
In the same circumstances as Alternative A, eight weeks after the
completion date has passed, the contractor is instructed by the architect
to cease work on the excavation for the foul drainage. The architect
then instructs the contractor to vary the levels and diameter of the
pipes and construct an additional inspection chamber and two additional
branch connections for a future extension. The additional work causes a
delay of one week (D2) and completion of the works is delayed by one
week.
In these circumstances, the architect could, and ought to have, ordered
the additional work in sufficient time to enable the work to be carried
out before the completion date and without causing delay. The variations
ordered by the architect were not dependent upon the contractor's progress
and could not be attributable to the contractor's culpable delay. If the
contract permitted an extension of time for delays which occurred after the
completion date had passed, an extension of time for a period of ten weeks
may be reasonable in the circumstances (TD).
In Balfour Beatty Building Ltd v. Chestermount Properties Ltd (1993)
62 BLR 1it was held that on the wording of clause 25 of the 1980 Edition
of JCT (The Joint Contracts Tribunal - JCT80) form of contract, an
extension of time granted retrospectively, after the completion date, for
delay caused by the employer was valid. This decision seems to have
put an end to the uncertainty regarding delays which occur after the
completion date has passed and the contractor is in culpable delay. Or
has it?
This case, and its implications, are of sufficient importance for consid-
eration in detail. The facts of the case are summarised below (see also Figure
5.11).
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The original agreed works to the core were intended to be completed

by 1 7 April 1989. This date was extended on 11 October 1988 giving a
revised completion date of 9 May 1989.
By February 1990, Balfour Beatty were several months late and already
liable for liquidated damages. It was agreed that fitting-out works would be
carried out by Balfour Beatty and a number of architect's instructions were
issued between 1 2 February 1990 and 1 2 July 1990. It was agreed that
these were variations to the original works.
Balfour Beatty completed the original works (core only) by 1 2 October
1990 and went on to complete the fitting-out works by 2 5 February
1991.
The architect granted two further extensions of time to account for the
additional fitting-out works. The first, issued on 18 December 1990,
extended the previously extended completion date by 126 days (to 1 2
September 1989) and the second, issued on 14 May 1991, made a fur-
ther extension of 7 3 days (to 2 4 November 1989), that is, before the date
of the first variation instruction.
Balfour Beatty's arguments were two-fold:
(1)That the effect of issuing the variation instructions for the fitting-out
works rendered time at large, in which case Balfour Beatty were obliged
to complete the works within a reasonable time and Chestermount
would lose its rights to levy liquidated damages.
(2) Alternatively, if time was not at large, Balfour Beatty were entitled to
an extension of time calculated by adding the period required for fitting-
out to the date when the additional works were ordered. According to
Balfour Beatty, this should have resulted in an extended completion
date of 2 5 February 1991, that is 54 weeks after 1 2 February 1990
(when the work was actually complete).
Mr Justice Colman did not agree with Balfour Beatty. He held that clause
25.3.3 of JCT80 (the Form of Contract in this case) empowered the archi-
tect to grant an extension of time after the completion date had passed
and, when the contractor was in culpable delay, that it was right and proper
to add a reasonable period to the previously extended completion date (of
9 May 1989) and that the final extended completion date of 2 4 Novem-
ber 1989 was reasonable even though that date was before the date when
the additional works were ordered.
How does this judgement affect other forms of contract?
The Intermediate Form of Contract provides for extensions of time to
be granted for any qualifying causes (relevant events) occurring after the
date for completion. Many engineering contracts also contemplate exten-
sions of time for delays after the completion date. Contracts such as ICE
and FIDIC contemplate extensions of time which are fair and reasonable.
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The sixth and seventh editions of the ICE conditions also contain novel pro-
visions regarding liquidated damages (infra).
I One form of contract, still widely used internationally, the JCT63 form,
I
I by the peculiar wording of the extension of time clause, appears to pro-
hibit extensions of time for any delays occurring after the completion date.
Had this form of contract been used in the Balfour Beatty case, perhaps
the contractor's first argument would have succeeded.
However, this case left some issues unanswered.
Whilst some modifications were made to the standard form of contract
(it was said that these were of no consequence to the issue), there is no
explanation as to why the completion date was originally 1 7 April 1989
and why the first extension of time was added to that date when, on 16
June 1988, the parties signed a contract which expressly included a date
for completion of 16 June 1989. The extension of time clause in JCT80
contemplates extensions of time if completion is delayed beyond the com-
I pletion date. It appears that the first extension of time made on 1 0 October
1988 (giving a new completion date of 9 May 1989)did not extend the
completion date given in the appendix to the contract.
I The second extension of time made on 18 December 1990 (giving a
new completion date of 1 2 September 1989) appears to be outside the
powers given to the architect in clause 25.3.1. However, this may be a
sterile argument on the grounds that the architect could subsequently make
a valid extension under clause 25.3.3.
Why did Balfour Beatty not ask for an acceptable extension of time
before agreeing to carry out the extra works? (See Fairclough Building
Ltd v. Rhuddlan Borough Council in 6.3, infra). Perhaps Balfour Beatty
thought that instructions to carry out the extra works would get them off
I the hook for damages of any sort.
Why was it fair and reasonable in all the circumstances to grant an exten-
sion of time to 2 4 November 1989 (before the date of the instruction
for the extra works) when it was clearly impossible for Balfour Beatty to
complete the works until several months after the issue of the variation
instruction?
With respect to the last of the above questions, close examination of the
facts, as shown in Figure 5.11, indicates that it was highly likely that the
commencement of fitting-out works was dependent upon Balfour Beatty
completing a substantial part of the original core works. Chestermount may
have been justified in wondering whether or not Balfour Beatty would ever
finish. Had Balfour Beatty been proceeding according to programme and
heading for completion by 9 May 1989 (the first extended completion date),
Chestermount could have ordered the fitting-out works by (say) December
1988 and works could have been completed by 2 4 November 1989 (see
I Figure 5.12). If that was the case, the architect was fair and reasonable in
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for fifflngaut war*.
I
I Pnctkd c o m ~ ofn worts 4
I lncludlngmtingout wads
I
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EMrnlon oftlms made for mting>utworks
I
Figure 5.11 Balfour Beatty Building Ltd u. Chestermount Properties Ltd

(1 993) 62 BLR 1
PnctlUl mphmof
I 2U11
Extsnlon ofthwmadefiwmtingwtwodm Bnlfour8ealty's IlnbllHy for LD
I
Figure 5.12 Balfour Beatty Building Ltd u. Chestermount Properties Ltd

(1993) 62 BLR 1: possible effect of uariation to add fitting-out works if no
delay by Balfour Beatty (explanation of extension of time to 24 November
1989)
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making the extension to 24 November 1989. (This analysis and explana-

tion is consistent with Alternative A above.)
However, what would have been the verdict if the cause of the delay
(occurring after the completion date) had been independent of Balfour
Beatty's progress as described in Alternative B above? Assume that on 1 2
February 1990, it was discovered that the design of the structural core
was defective on all floors. Discovery of the defect was not dependent
upon Balfour Beatty's progress. Remedial works would have to be designed.
Demolition of part of the completed works would be required and no further
work on the remaining (incomplete)structure could proceed until the reme-
dial works were complete. In these circumstances, perhaps it would be
reasonable to make an extension of time on a gross basis, that is until the
date when the remedial works and remaining works could reasonably be
expected to be complete. If a gross extension was not made, Chestermount
would, in these circumstances, benefit from its own default by being able
to levy liquidated damages during a period when the building could not, in
any event, have been completed because of the design fault.
What would be the situation, if, for example, a strike had occurred after
the completion date had passed? Would it have been reasonable to argue
that if Balfour Beatty had completed on time, the works would not have
been delayed by the strike (hence, no extension)? Imagine the difficulty if
numerous delays such as strikes, adverse weather conditions and extra
works were affecting the progress of the works after the completion date
had passed.
It would seem, therefore, that each case may have to be looked at on
its merits. The Balfour Beatty case dealt with a single delaying matter by
the employer concurrent with Balfour Beatty's own delay. In practice, many
delays may occur after the completion date. It may not be correct to rely
on the decision in Balfour Beatty v. Chestermount to justify variations or
late issuance of information after the completion date has passed. All that
this case appears to do is set out what should be decided in the particular
circumstances which arose in connection with this contract.
What are the alternatives?
It can be seen from Figure 5.13 that Balfour Beatty were ultimately given
an extension of time to 2 4 November 1989 and were liable for liquidated
damages after that date until completion on 25 February 1991.
Under the ICE conditions of contract, clause 47(6) provides for liquidated
damages to be suspended in the event of such a delay occurring after
the completion date when the contractor is already liable for liquidated
damages. Therefore, had this form of contract applied, Balfour Beatty
would have been liable for liquidated damages until 1 2 February 1990, after
which its liability would be suspended for the period of delay (in this case
twenty-eight and a half weeks). Thereafter, liquidated damages would con-
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Pnctlcal completion of wo
Banour Bemy's lhbllltyforLO

In ascordawe *mh the judement
I
I Unlipuld.t.ddaMpn
I
or altemnhely I
Unliquld.t.d danugm
Figure 5.13 Balfour Beatty Building Ltd v. Chestermount Properties Ltd

(1993) 62 BLR 1: comparison of various liabilities for damages for late
completion if extended date for completion (24 November 1989) is a
reasonable date
tinue until completion. The nett result would have been identical to that
which arose using JCT80.
Had Balfour Beatty been successful in arguing that time was at large and
that Chestermount had lost its rights to liquidated damages, one of the fol-
lowing alternatives may have applied:
(1) Liquidated damages would be payable from 10 May 1989 to 12
February 1990 and general damages (damages which Chestermount
could prove flowed from Balfour Beatty's default) would be payable
thereafter, or
(2) General damages would be payable for late completion calculated from
10 May 1989.
If either of the alternatives (1)or (2) above applied, Balfour Beatty may
have been no better off (or indeed worse off). There is at least the possi-
bility that general damages could exceed liquidated damages: Rapid Build-
ing Group Ltd v. Ealing Family Housing Association Ltd (see 1.4,supra).
Under the Singapore Institute of Architects standard form of contract,
as in the ICE contract, liquidated damages are suspended for the period
necessary to complete the variation (clause 24). However, it appears that
the suspension only comes into effect if the contractor is not also in default
during the same period (see 4.10, supra). In the circumstances of this case,
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Balfour Beatty may have been liable for liquidated damages for the entire
period from 1 0 May 1989 until completion on 25 February 1991, in spite
of the fact that Chestermount ordered extra works requiring twenty-eight
and a half weeks to execute. Perhaps clause 24 of the Singapore contract
will not stand up if tested in the courts of Singapore in similar circumstances.
Under the NEC, the matter appears to be simply dealt with in clause
63.3 (see 5.2, supra).
Under the NEC, there may be problems if the programme is not prop-
erly and regularly updated or if programmes are not accepted by the project
manager.
5.4 Summary on Presentation of Extensions of Time Claims
In any claim for an extension of time, and whether or not there is a require-
ment to give details and particulars, it is good practice to include the
following:
a description of the cause of delay and the contractual provision which
is being relied upon for the extension;
the date when the delay commenced and the period of delay (giving
details of intermittent effects, if appropriate);
the date of notice of delay, specifying the reference of the relevant
document;
a summary of records and particulars relied upon (with copies included
in an appendix);
a narrative of the events and effects on progress;
a diagrammatic illustration showing the status of the programme,
progress and current completion date prior to the commencement of the
delay;
a diagrammatic illustration showing the effects of the delay on progress
and the completion date (including subsequent delays which may have
reduced the float in the programme);
a statement requesting an extension of time for the delay to completion
for the period shown on the submitted illustrations.
5.5 Recovery of Loss and/or Expense and/or Damages
Whilst failure to give notice of delay for extensions of time is not usually
fatal to a claim, failure to give notice in accordance with the contract with
respect to additional payment may bar, or severely prejudice a claim.
There are good reasons for contracts to have provisions for the con-
tractor to give notice. No employer will wish to have a substantial claim
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appearing 'out of the blue' at the end of a contract. In J. and J.C.

Abrahams v. Ancliffe [I9381 2 NZLR 420, a contractor estimated the cost
of building two residential units at $30000. Several months later the
employer's architect issued a specification for the work and the contractor
commenced work. It became evident that the specification provided for
more expensive work than that which had been allowed for in the con-
tractor's estimate. There were also problems in the foundations which
increased the amount of work done and general building costs were esca-
lating. The employer repeatedly asked the contractor for details of the
expected costs but at no time did the contractor reply. When it came to
settle the account, the employer argued that the contractor was in breach
of a duty to give reliable information about the costs of building before the
employer became committed to completing the units at an uneconomic
cost. It was held that the contractor was under a duty of care to the
employer in giving its original estimate and to inform the employer as soon
as it was aware that costs were going to substantially exceed the estimate.
In most forms of contract, the onus is not entirely upon the contractor
to keep the employer informed of increases in the contract price. In most
instances, the employer relies to a great extent on his professional advis-
ers. In varying degrees (according to the terms of the contract) there must
be co-operation between the employer's professional advisers and the con-
tractor so that any increase in the contract price can be ascertained at the
earliest possible time: London Borough of Merton v. Stanley Hugh Leach
Ltd (supra). Where there are no express terms, co-operation is usually
implied. Most construction contracts have express provisions making it clear
as to what form this co-operation should take.
In the UK, contractors may normally seek remedies under the common
law in addition to, or alternatively to, rights under the contract: London
Borough of Merton v. Stanley Hugh Leach Ltd (supra). However, under
MFA, no such alternative remedy is available since the contract excludes
the contractor's rights under the general law (sub-clause 44.4). That is to
say, the contractor's rights are limited to the rights set out in the contract:
Strachan & Henshaw Limited v. Stein Industrie (UK)Limited (1998) 8 7
BLR 52. In some countries, it may not be possible to exclude rights under
the general law.
Exclusion clauses
It should be noted that if there are no remedies for breach set out in the
contract, or if a contractual remedy limits liability for breach of contract, a
clause purporting to exclude liability may not be effective in the UK (an
exclusion clause). In George Mitchell (Chester Hall) Ltd v. Finney Lock
Seeds Ltd (1983)1-CLD-05-18, it was held that a clause which limited the
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seller's liability to the costs of cabbage seed in the event of failure of the
crop could not prevent the buyer from succeeding in a claim for full
damages in the event of the crop being of no commercial value.
Similar provisions in construction contracts have arisen. In Miller v
London County Council (1934) 151 LT 425, the contract provided that
there should be no allowance in respect of money, time or otherwise, other
than such extensions of time as may be given. It was held, obiter (Du Parq
J), that the clause did not include delay due to extras or interference by the
employer or persons for whom the employer was responsible, that is the
contractor may be entitled to compensation if the employer causes delay
(whatever the clause says).
In some US jurisdictions 'no damages for delay' clauses are enforceable.
In Hudson's Building and Engineering Contracts, eleventh edition,
the author writes at page 1101:
'Clauses of this kind would appear to be prime candidates for avoidance under
the English Unfair Contract Terms Act 1976 [sic, 19771 or similar legislation
elsewhere.'
Most civil law jurisdictionsexpressly prohibit contractual provisions which
attempt to bar a remedy for breach of contract. For example, Section 3 7 3
of the Civil Code of Thailand states:
'An agreement made in advance exonerating a debtor from his own fraud or
gross negligence is void.'
Under South African law, nothing prevents an employer contracting out
of the consequences of his own breach. For example, extension of time
clauses frequently provide for an extension of time but no monetary com-
pensation. Where the extension of time arises from the employer's breach,
such as failure to grant possession of site, the contractor would be entitled
to the relevant time but nothing further.
5.6 Notice of Intention to Claim
Most contractors do give notice of their intention to claim at some time

during the contract. Some avoid any indication at all of their intention to
claim until after an extension of time has been made. The former may
barely comply with the contract and may prejudice the contractors' enti-
tlements to some extent. The latter will invariably be the beginning of
an uphill stru&le to obtain payment of substantially less (if anything at
all) than might otherwise have been possible if the contractor had given
prompt notice. Notice provisions in modern construction contracts vary
considerably:
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JCT80 - Clause 26.1.1 merely requires the contractor to make an appli-

cation '. . . as soon as it has become, or should reasonably have become,
apparent to him that the regular progress of the Works or of any part
thereof has been or was likely to be affected (by the matters referred to]
. . . .' It may be difficult to decide whether or not an application is late
in all the circumstances. The only significant difference between the
present clause and its predecessor (JCT63)is the addition of the words
'. . . or should reasonably have become [apparent]. . . .' The clause lacks
express language to bar a claim if an application is made 'late'.
GC/Works/l, Edition 3 and 1998 Edition - Clause 46(3)states that 'the
contract sum shall not be increased unless, (a) the Contractor, imme-
diately upon becoming aware that the regular progress of the Works or
any part of them has been or is likely to be disrupted or prolonged has
given notice to the [Project Manager] specifying the circumstances
causing or expected to cause that disruption or prolongation and stating
that he is, or expects to be, entitled to an increase in the Contract
Sum. . . .'
ICE fifth edition - Clause 52(4)requires the contractor to '. . . give notice
in writing of his intention [to claim] to the Engineer as soon as reason-
ably possible after the happening of the events giving rise to the claim.'
The sixth and seventh editions introduce a twenty-eight day period
after the event giving rise to the claim has arisen, but like the fifth edition,
if the contractor fails to comply with the contractual provisions, the con-
tractor is entitled to payment so far as the engineer has not been pre-
vented from investigating the claim.
1987 FIDIC fourth edition - Clause 53 contains similar provisions to the
ICE conditions.
1999 FIDIC Red, Yellow and Silver Books - Clause 20.1 requires a
notice within twenty-eight days. The giving of a notice within the stipu-
lated period is a condition precedent to the contractor's rights to claim.
MF/1 - Clause 41.l(a) requires a notice within thirty days, failing which
the claim is time-barred.
5.7 Particulars and Further Information to Support a Claim
If proper notice has been given pursuant to the terms of the contract, both
parties are aware of the claim and further steps can be taken to deal with
it. Various provisions include:
JCT8O - If requested by the architect, the contractor is required to
submit appropriate information for the purposes of enabling the archi-
tect to form an opinion as to whether or not the contractor has incurred
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or is likely to incur direct loss and/or expense (clause 26.1.2) and if

requested by the architect or quantity surveyor, the contractor is
required to provide details of the loss and/or expense (clause 26.1.3).
No time limits are specified for the architect's or quantity surveyor's
requests or for the contractor's response.
GC/Works/l Edition 3 and 1998 Edition - The contract sum shall not
be increased unless '(b) the Contractor, as soon as reasonably practica-
ble, and in any case within 56 days of incurring the expense, provides
full details of all expenses incurred and evidence that the expenses
directly result from the occurrence of one of the events. . .' (clause
46(1)).
ICE fifth and sixth editions - Require the contractor to give a first interim
account and details as soon as possible after giving notice, and there-
after further accounts at such intervals as the engineer may reasonably
require (clause 52(4)). The seventh edition contains similar provisions
(clause 53(4)).
1987 fourth edition of FIDIC is similar to the ICE conditions, save that
particulars and amounts claimed are required within twenty-eight days
unless otherwise agreed.
1999 FIDIC Red, Yellow and Silver Books require particulars and
accounts to be submitted within forty-two days but failure to comply will
not bar the claim (clause 20.1).
It appears that, with the exception of GC/Works/l, there is no bar to a
claim provided that notice and particulars are given within a reasonable
time. MF/1 and the 1999 FIDIC Red, Yellow and Silver Books bar a claim
if the initial notice is not given within the prescribed time, but failure to
provide particulars and accounts on time will not be fatal to the claim.
Notwithstanding the loose provisions which appear to prevail, contrac-
tors are advised to give prompt notice followed by detailed particulars
backed up by adequate contemporary records.
The methods of illustrating delay and disruption in support of claims for
additional payment are similar to those used for illustrating claims for exten-
sions of time.
5.8 Prolongation Claims
Qualifying delays on the critical path will usually support a claim for pro-
longation costs for the period of delay (if such delays are matters which give
rise to additional payment). For the purposes of claims for additional
payment, the term 'qualifying delay' means delay which brings with it the
right to additional payment (some qualifying delays for extensions of time,
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such as adverse weather conditions, do not normally give rise to additional

payment). Typical heads of claim arising out of prolongation of the con-
tract period are:
Site overheads or preliminaries

It is surprising how many claims are submitted on the basis that the extra
site overhead costs due to prolongation are those incurred after the origi-
nal contract completion date and up to the extended (or actual) completion
date. This is, of course, incorrect, but it may explain why some contractors
wait until the end of the project to give notice and submit a claim. The
following example illustrates how prolongation costs may be significantly
understated using the above assumption.
The qualifying delay on the critical path (Dl) shown in Example 1 (see
Figure 5.3) has caused the completion date to be delayed by two weeks.
The actual weekly costs of the contractor's general site establishment (time-
related costs) are shown in Figure 5.14.
It will be seen that the weekly costs incurred during the two-week period
of overrun (CD) are much lower than the weekly costs during the period of
delay (CO). It is the cost incurred during the period of delay which should
be the basis of the contractor's claim for prolongation costs. A claim based
on the costs incurred during the period of overrun will normally be sub-
stantially less than the actual costs incurred during the period of the delay.
The costs incurred during the period of delay may not reflect the true
additional costs of the delay. For example, the contractor may have
recruited an electrical engineer to commence on site in the ninth week to
supervise the electrical installation. There may be no other site at which
the engineer can be usefully employed and it may not be possible to post-
pone his employment. The delay may have caused the commencement of
the electrical installation to be delayed by two weeks, in which case the con-
tractor is faced with paying the salary of the engineer for two weeks (weeks
nine and ten) when there is no work being done which requires the engi-
neer's supervision. This additional cost is a direct result of the qualifying
delay and ought to be recoverable. However, the cost of the engineer is
not included in the costs incurred in weeks six and seven (the period of
delay). In order to overcome such problems, the contractor should show
the periods when every time-related resource was on site (and their costs)
and when they ought to have been on site (save for the delay) - see Figure
5.15.
In practice, some qualifying delays may occur in isolation (as in the pre-
vious example) and/or numerous qualifying delays may occur over a period
in which each qualifying delay overlaps with other qualifying delays. The
nett result of all of the qualifying delays may cause prolongation of the
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contract period. Provided that there are no major concurrent delays by the
contractor (which would be a matter of evidence) it may be reasonable to
base a claim for prolongation costs on the costs shown in Figure 5.16.
In the above example, the cost of the isolated delay (A) may be estab-
lished using similar principles as those in the previous example. The costs
arising out of the numerous continuing delays during the period (B) may be
COST *O = ORIGINAL COMPLETION

$ = COMPLETION CAUSED BY "A"
B = COMPLmION CAUSED BY "8"
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Figure 5.16 Extended preliminaries
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taken as four-tenths of the total costs incurred during period (B). Some
adjustments may have to be made for special circumstances such as the
case of the electrical engineer used in the previous example. Alternatively,
comparison between the resources which were utilised on site and the
resources which ought to have been utilised (save for the delay) may give
a more accurate result.
In any event, it is not the comparison between the actual resources and
those included in the contractor's tender which form the basis of the claim.
If the contractor can show that it was reasonable and necessary to employ
more weekly resources than those allowed in the tender he may be able to
claim on the basis of the increased resources. However, if there was no
good reason to employ additional resources, the contractor's claim may be
limited to the costs of resources which were consistent with the contrac-
tor's tender assumptions. If the contractor's actual resources were less than
the tender provisions, the employer would not expect to reimburse the con-
tractor any more than the actual costs incurred.
Prolongation of individual activities

Some delays may not be on the critical path, in which case there will be
no general prolongation costs. However, some time-related costs may be
solely attributable to a particular activity. If delay (D2) in Example 2 (see
Figure 5.4) is in respect of an activity which requires scaffolding for its total
duration, then the cost of the scaffolding for the period of the qualifying
delay of two weeks would be recoverable. Supervision and other plant and
equipment utilised solely for the activity may also be recoverable. This is
particularly valid where the activity is for work carried out by a subcon-
tractor. The subcontractor will have a prolongation claim against the con-
tractor and the contractor will seek reimbursement under the relevant
provisions of the principal contract.
Valuation at cost or using contract rates for preliminaries

If the delay was caused solely by a variation, it could be argued that the val-
uation of the variation should take into account the time-related rates in the
contract bills (see Variations, infra). Account would have to be taken of sig-
nificant changes in actual costs when compared with the time-related rates
in the contract bills. If the delay was caused by breaches of contract, such
as late issuance of drawings and details, the remedy is by way of damages,
thereby requiring the loss to be based on the contractor's actual costs irre-
spective of the contract rates. If the delay was caused by variations and
breaches of contract, and the periods of delay for each cause cannot be
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disentangled, it is suggested that actual costs should be used as the basis of

any claim.
Head office overheads in the event of prolongation

Various formulae may be used. However, some doubt was cast upon the
use of a formula in Tate & Lyle Food Distribution Ltd and Another v.
Greater London Council [I98211 WLR 149. It should be noted that in
this case very little evidence (if any) was put forward to establish the extent
of disruption and delay and there was no evidence presented to support
the percentage claimed. It is thought that where a contractor can show evi-
dence of delay, and the extent of it, and where there is evidence to support
the contention that resources were prevented from earning a contribution
to overheads and the percentage to be used, then one of the recognised
formulae may be used.
The Hudson formula

This formula was put forward in Hudson's Building and Engineering Con-
tracts, tenth edition, 1970 (page 599). It uses the percentage in the con-
tractor's tender for overheads (and profit, if applicable) as a basis for the
contractor's loss of contribution to overheads (profit), as a result of delay,
in the following formula:
Head office overheads (profit)% Contract sum
x x Period of delay
100 Contract period
Hudson's formula found favour with the judge in Ellis-Don v. Parking
Authority of Toronto (1978) 28 BLR 98. In this case, the judge stated
that neither counsel before him had been able to think of a better approach.
Emden's formula
This formula can be found in Emden's Building Con tracts and Practice,
eighth edition, Volume 2 (page N/46) by Bickford-Smith. The formula is
identical to the Hudson formula, save that the head office overheads per-
centage (and profit) used in the formula is the actual percentage based on
the contractor's accounts and is arrived at as follows:
Total overhead cost (Profit)
Head office overheads (profit)% =
Total turnover
Emden's formula was approved in the case of Whittall Builders Company
Ltd v. Chester-le-Street District Council (1985) unreported. The judge
clearly stated the principles behind Emden's formula as follows:
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'What has to be calculated here is the contribution to off-site overheads and profit
which the contractor might reasonably have expected to earn with these
resources if not deprived of them. The percentage to be taken for overheads
and profits for this purpose is not therefore the percentage allowed by the con-
tractor in compiling the price for this particular contract, which may have been
larger or smaller than his usual percentage, and may not have been realised. It
is not that percentage (i.e. the tendered percentage)that one has to take for this
purpose but the average percentage earned by the contractor on his turnover
as shown by the contractor's accounts.'
In J.E Finnegan v. Sheffield City Council (1989)43 BLR 124, the judge
endorsed Emden's formula as follows:
'I infinitely prefer the Hudson Formula which in my judgement is the right one
to apply in this case, that is to say, overhead and profit percentage based upon
fair annual average, multiplied by the contracts sum and the period of delay in
weeks, divided by the contract period.'
Note - The judge referred to the Hudson formula, when in fact it ought
to have been Emden's formula.
Eichleay's formula
A similar formula to Emden's formula was developed by Eichleay in the
United States in The Appeal of Eichleay Corporation, ASBCA 5183,
60-2 BCA (CCH) 2 6 8 8 (1960) and this has found approval in the US
courts: Capital Electric Company v. United States (infra). This formula
uses the actual overheads (and profit) in a similar manner to Emden, but
the total value of all certificates (the final contract price, including remeas-
urement and variations) is inserted in lieu of the contract sum.
The logic behind the use of a formula is shown in Figure 5.17. Line a-a
represents the contractor's anticipated or actual head office overheads
(depending upon the formula used). Line b-b represents the contractor's
anticipated turnover on all projects. Profile c-c represents the contractor's
anticipated turnover on the present project. Profile d-d represents the con-
tractor's actual turnover on the present (delayed) project. Profile e-e rep-
resents the contractor's actual turnover on all projects.
It will be seen that the delay has caused the actual turnover on the project
(d-d) in the early months of the project to be considerably less than would
have been the case if there had been no delay. Accordingly, the total actual
turnover (e-e) has fallen below anticipated level (b-b). During the latter
months of the project, the actual turnover on the present project (d-d) con-
tinues during the period of prolongation (making up for the shortfall in the
earlier months). In theory, the actual turnover on all projects during the
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SHORTFALL IN DISPLACED TURNWER

TURNOVER CAUSED CAUSED BY DELAY
BY DELAY
I,LI,
I YEAR 1 I YEAR2 I YEAR 3 I
Figure 5.17 Overheads and turnover
period of prolongation should increase (see x-x) because the turnover on

the delayed project in the latter months was not included in the planned
turnover for the same period. However, this increase can only be achieved
if the resources on the present delayed project can be released to generate
more work on a new project. Unless the contractor can take on more
resources, it will have to forego new work which it could otherwise have
taken. Therefore, as a result of the shortfall in turnover during the delay,
the contractor is unable to recover sufficient overheads from the delayed
project to make the requisite contribution to its total overheads.
In St Modwen Development Ltd v. Bowmer and Kirkland [I996138
BLISS 4 the arbitrator awarded head office overheads based upon a for-
mula method of recovery. The employer appealed, not with respect to the
formula itself, but on the basis that no evidence had been presented to
prove that the contractor was unable to use his head office resources else-
where during the period of prolongation to generate overheads and profit
as a result of the delay.
The Court appears to have been influenced by Hudson's Building and
Engineering Contracts, tenth edition:
'However, it is vital to appreciate that both these formulae (Hudson and
Eichleay)were evolved during the 1960's at a time of high economic activity in
construction. Both assume the existence of a favourable market where an ad-
equate profit and fixed overhead percentage will be available to be earned during
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the delay period. Both also very importantly, assume an element of constraint -
that is to say that the contractor's resources (principally of working capital and
key personnel, it is suggested) will be limited or stretched, so that he will be
unable to take on work elsewhere.'
The Court rejected the appeal on the grounds that both expert and evi-
dence of fact had been heard on which the arbitrator was entitled to base
his award.
In Amec Building Ltd v. Cadmus lnvestment Co Ltd [I9971 51 ConLR
105, Mr Recorder Kallipetis QC had this to say:
'. . . it is for the plaintiff to demonstrate that he has suffered the loss he is seeking
to recover. . . [and]. . . this proof must include the keeping of some form of
record that the time was excessive and their attention was diverted in such a way
that loss was incurred . . . [and he must]. . . place some evidence before the
Court that there was other work available which, but for the delay, he would
have secured . . . thus he is able to demonstrate that he would have recouped his
overheads from those other contracts and, thus, is entitled to an extra payment
in respect of any delay period awarded in the instant contract.'
It follows that in order to succeed in delay claims involving loss of over-
heads (and profit) using a formula, the contractor must be able to show:
(1) that the anticipated turnover was adversely affected by the delayed
project, and
(2) that he was prevented from earning a contribution to overheads (and
profit) as a result of the delay (see possible methods under 'profit',
infra).
The various formulae used will enable the contractor to calculate the loss
of contribution to its head office overheads as a result of the delay. As the
contractor has been unable to release his resources to earn the contribu-
tion to overheads on another project, he must earn a similar contribution
by making a claim on the delayed project.
It will not normally be necessary for the contractor to submit a graphi-
cal representation of its turnover and overheads in the above manner as
the use of formulae are well known. Where there is resistance to the use
of a formula, illustrations using actual data may be persuasive.
However, when a project goes seriously wrong, the use of a formula may
produce a substantial underestimate of the costs of prolongation. A contractor
may have to increase the time spent by its managerial and supervisory staff of
its head office to cope with the particular problems of the project. Numerous
variations and other delaying matters may place greater demands on mana-
gerial staff including purchasing, planning, costing, quantity surveying and
administration staff. It may be necessary to place a director, in a full time role,
to deal with the overall management of the project (where none would have
been necessary if the project had gone according to plan).
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Before leaving overheads, it is worthwhile considering the different cir-

cumstances between the Tate & Lyle case and those cases where a formula
was accepted as a fair means of calculating overheads to be reimbursed.
In the Tate & Lyle case, the court was considering the cost of mana-
gerial time spent on work done to remedy an actionable wrong. It had
nothing to do with a delayed project. In the cases which approved the use
of a formula, the courts were concerned not only with the cost of manag-
ing a project which was delayed, but they were also considering the loss
of productivity (lossof contribution)of the contractor's overhead resources.
That is to say, because of the delay, the managerial time could not be used
to earn the required contribution to overheads on the delayed project, nor
could it be used to earn the required contribution from other existing pro-
jects (as this would mean recovering additional expense from other employ-
ers who were not in default) or additional projects (which could not be
undertaken on account of key resources being retained on the delayed
project). With the greatest respect, the circumstances of the Tate & Lyle
case are sufficiently distinguishable from most cases involving delay and
there appears to be strong grounds to resist any suggestion that this case
places doubt on the use of an appropriate formula (subject, of course, to
reasonable evidence and the circumstances applicable to the delayed
project).
Profit
The principles behind a claim for loss of profit arising out of a delayed con-
tract are similar to those applicable to a claim for overheads. It should be
noted that some contractual provisions only provide for recovery of addi-
tional cost or expense. Where that is the case, a claim for loss of profit is
not permissible under the terms of the contract. However, unless there are
clear terms to limit the contractor's remedy to those contained in the con-
tract (that is, excluding a common law claim), the contractor may be able
to make a claim for loss of profit under the general law. The JCT forms of
contract permit reimbursement of loss of profit.
Having established that there is a contractual, or common law, right to
recover profit lost as a result of delay, what level of profit is reasonable and
what standard of evidence to support a claim for loss of profit is required?
It is an impossible task to show that, save for the delay, the contractor
would have been successful when tendering for a particular project (which
he declined, or submitted a deliberately high bid) and that, having been
awarded the contract for the project, he would have made a profit on it. If
that was the appropriate test, no claim for loss of profit would succeed.
However, it may be necessary for the contractor to show some evidence
that he was given the opportunity to tender for other projects and that he
could not reasonably take advantage of these opportunities because of the
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fact that his resources were retained on the delayed project. In formulating
a claim for loss of profit, the contractor would be advised to keep a record
of the following:
all tenders submitted and awarded (so that a success ratio can be
established);
all projects for which the contractor was irivited to tender, but which were
declined or a deliberately high tender submitted (this may cover a period
of several months before the present delayed project has overrun, since
decisions to decline new work may have to be taken in advance as soon
as the overrun is anticipated).
The former is relatively easy to illustrate. The latter may need some analy-
sis to establish that any bids were deliberately high. This should be possi-
ble by a bid ratio technique (a system of recording the nett cost included in
each tender as a percentage, or factor, of the successful tender).
Example
Nett cost for constructing a project = C , say £100000

Successful tender sum = T,say El05000
Bid Ratio = T/C = E 105000/£100000= 1.05
Any tenders with a bid ratio above an established competitive bid ratio
would qualify for deliberately high pricing. This technique may require sta-
tistical analysis and adjustment for 'rogue' bids and errors.
Other evidence, such as proximity of the submitted tender to the com-
petitive range of other tenders, may suffice. Further, a general analysis of
construction activity during the period of overrun may be acceptable. Limi-
tations on the contractor's bonding facility may also be a factor.
If the contractor can demonstrate that, on the balance of probability, he
would have been able to obtain other contracts during the period of overrun,
that alone ought to be sufficient to establish the claim in principle. In a
United States case, the employer, the United States Government, con-
tended that the contractor was required to prove that he was capable of
taking on the extra work which he alleged was lost as a result of the gov-
ernment's delay and that he could have made a profit on it. It was held that
the contractor had produced unrebutted evidence that he could not have
taken on any large construction jobs during the various delay periods owing
to the uncertainty of delays and limitation on his bonding capacity. The
mere showing of these facts is sufficient to transfer to the government the
burden of proof that the contractor suffered no loss or should have suffered
no loss: Capital Electric Company v. United States (Appeal No. 88/965,
7.2.84) 729 F.2d 743 (1984).
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A very simple approach was adopted in Whittall Builders Company

Ltd v. Chester-le-Street District Council (supra). The judge was satisfied
that there was sufficient activity in the construction industry at the relevant
time that it was reasonable to assume that Whittall would have been able
to obtain other profitable work.
Hudson, Emden or Eichleayt Percentage to be used:

period for calculating the relevant percentage
A great deal will depend on the nature of the delay. If the sole reason for
a particular delay is extra, or additional work, contemplated by the varia-
tion clause in the contract, it may be appropriate to use Hudson's formula
(see Variations, infra). If the reason for delay is breach of contract, or if
periods of delay caused by variations cannot be disentangled from periods
of delay caused by breaches of contract, it is suggested that the remedy is
by way of damages, in which case Emden's formula is appropriate.
At tender stage, the contractor will be looking at historical data (based
on several years' expenditure on overheads and the recorded turnover for
the same periods). Some adjustment may be made for anticipated changes
in turnover in the future overheads. In any event, the percentage for over-
heads in the contractor's tender should be a realistic estimate of the prob-
able apportionment of overheads in the rates for the work in the contract.
The level of profit in the tender may have no relationship whatsoever to
historical data, but it will depend on the profit (or loss) which the contrac-
tor anticipates should be allowed, having regard to external market factors
and operating turnover requirements. Where a positive profit has been
allowed in the tender, and where there has been no substantial change in
the market, the Hudson formula may be fair to both parties where delay
is caused by variations.
Where a negative profit has been allowed in the tender, adjustment to
the percentage may be considered, particularly if the delay is out of pro-
portion to the value of additional work and/or there had been an improve-
ment in the market (part Hudson, part Emden). Where the delay was not
unreasonable, having regard to the value of variations, adjustment for over-
heads only (ignoring the negative profit percentage) may be the applicable
solution. This would depend on the terms of the contract and the circum-
stances of the case.
Where a formula is used, there may be some difficulty in deciding upon
the appropriate period to be taken for establishing the turnover and over-
heads and profit in the formula (see Figure 5.18).
Period a (prior to commencement with possible adjustment for antici-
pated changes) represents the period used for Hudson's formula.
Period b (the original contract period) represents the period used for
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Eichleay's formula (see Construction Contracts: Principles and Policies

in Tort and Contract by I.N. Duncan Wallace at page 128). However,
period c (the extended contract period) would appear to be equally
appropriate.
Period d (prior to commencement of the qualifying delay) would appear
to be the most appropriate for Emden's formula, since it is the most con-
temporary period before the percentage is distorted by the qualifying delay
(which would normally reduce turnover and increase the percentage for
overheads).
Period e (the period of the qualifying delay) would normally be too short
for useful figures to be obtained and it would suffer from greater distortion
than period d.
Period f (from commencement of the qualifying delay until completion)
may be appropriate in certain circumstances but may be subject to distortion.
Period g (period of overrun) is most suitable for the loss of profit element
(since this is the period in which the profit ought to have been earned on
a new project). However, it is normally too short. Profit from the nearest
year's accounts may be appropriate as a basis of assessment.
Contractors may seek to use the period which gives the most favourable
result. In practice, the nearest accounting periods which include period d
are likely to be the appropriate periods for calculating the percentage for
overheads, whilst the nearest accounting periods which include period e are
likely to be the appropriate periods for calculating loss of profit. However,
since the use of a formula does not purport to produce an accurate result,
it is suggested that period c should be appropriate (for overheads and profit)
in most cases. If claims are to be settled prior to such information being
available, the most recent accounting periods may have to suffice.
The accounting periods will not usually coincide with the actual period,
in which case an adjustment may be made. For example, assuming that c
has been agreed as the appropriate period, the percentage overheads and
profit may be calculated as follows:
Year 1 Year 2 Year 3 Total
Turnover El 800000 £2000000 £2400000

x 8/12 x 12/12 x 4/12
El 200000 £2 000000 £800000 £4000000
Overheads £240000 £300000 £300000
and profit x 8/12 x 12/12 x 4/12
£160000 £300000 £100000 £560000
% overheads 13.33% 15.00% 12.50% 14.00%
and profit
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A more accurate assessment may be made by graphical means or by using

monthly or quarterly figures.
One pitfall when using actual audited accounts is that they may not
include any (or the correct) provision in them for the recovery to be realised
by payment of the claim on the delayed contract (and possibly other con-
tracts). Provisions in previous years' accounts may have been under or over-
estimated and amounts received in the years used for calculation may distort
the real figures. Adjustment may be possible if good management accounts
are kept. However, unless there are unusual circumstances, it is suggested
that these factors will be self-compensating in the long term.
It has been said that a formula produces a result which includes over-
heads and profit on the overheads and profit included in the contract sum.
However, this is not the case if the overheads and profit are expressed as
a percentage of the turnover income (and not annual cost), as can be seen
from the following example:
Annual cost of all projects = £60000
Overheads and profit = £5000
Annual turnover = £65000
Overheads and profit = 8.333% of
cost or
7.692% of turnover
Contract sum of delayed project = £345000
Less overheads and profit (7.692%)= £26 537
Cost of delayed project = £318463
Original contract period = 300 days
Period of delay = 70 days
Overheads and profit during period of delay (using contract sum and over-
heads and profit as percentage of turnover income in the formula)
--7.692 X
-
345000
x 70 days = f 6192
100 300 days
Overheads and profit during period of delay (using contract cost and over-
heads and profit as percentage of annual cost in the formula)
- 8.333
-- X
318463
x 70 days = f 6192
100 300 days
This example illustrates that there is no mathematical problem when the
percentage for overheads and profit included in the tender is the same as
the average percentage for overheads and profit on all projects. Adjustment
may be necessary if different percentages are evident (as will almost cer-
tainly be the case using Emden's formula). If this is so, it is a simple matter
to convert the percentages so that they are expressed as a percentage of
cost, in which case the formula becomes:
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Overheads % Contract cost

x x Period of delay
100 Contract period
In most cases the traditional use of the formula will be sufficiently accu-
rate. Only where there is a significant difference between average profit
and the profit on the delayed project will any adjustment be necessary.
A formula may also produce a suspect result (over-recovery)if the delay
being considered is at the end of a project, when most of the work has
been done and few key resources are retained on site. The opposite (under-
recovery) may occur when the delay takes place during the peak months
and the maximum resources are on site. All of the resources should earn
a contribution to the overheads and this can be catered for by sensible
adjustments to the formula. For example, the following factor may be suit-
able in some circumstances:
F = Value of work done per day during period of delay on contract

Average value of work done per day during total contract period
Amount of overheads (and profit) = Normal formula result x F
An alternative would be to examine total costs of all projects, the cost
of the delayed project and actual overheads during the period of delay
(similar to Eichleay). This could be ascertained by monthly records. For an
example (see also Figure 5.19):
Total cost of all projects, March and April = £160000
Total head office overheads, March and April = £12000
Cost of delayed project, March and April = £30000
12000
Overheads percentage = x 100 = 7.50%
£ 160000
Overheads allocated to delayed project during March and April =
£30000 x 7.5% = £2250
45
Overheads during 4 5 days' delay = £2250 x -= £1660
61
Head office overheads were considered in the case of Property and
Land Contractors Ltd v. Alfred McAIpine Homes North Ltd (1996) 76
BLR 59. JCT80 conditions applied with some amendments. The contrac-
tor was instructed to suspend the works which led to a claim being sub-
mitted in the alternative for head office overheads. The matter was referred
to arbitration.
The claim was based upon the application of Emden's formula. The
contractor usually undertook only one major project at any one time. A
second project at Tollerton was planned and it was agreed that the con-
tractor intended to carry out this development for its parent company after
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A = QUALIFYING DELAY OF 45 DAYS
B = DELAY TO COMPLETION
PROGRESS
Figure 5.19 Overheads and profit based on monthly accounts during period o f delay
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completing the current project (thesubject of the claim). It was claimed that,
due to the postponement, completion of the work was delayed from 20
May 1990 until 25 November 1990, and that the delay prevented the con-
tractor from carrying out the second project at Tollerton. The contractor
claimed that, due to the overrun, he lost an opportunity of carrying out
the second project which would have contributed to overheads. Emden's
formula was employed as a means of calculating the head officeoverheads.
This argument was rejected by the arbitrator, who was not convinced that
the suspension resulted in the contractor being unable to work at the second
project or elsewhere.
The contractor's alternative claim was for the recovery of head office
overheads actually expended. The arbitrator was satisfied that the head
office costs were related to the works for the delay period. The contrac-
tor's method of calculation was:
'to extract from the company's account the overhead costs excluding fixed costs
not related specifically to progress on the site (i.e. directors' remuneration, tele-
phone, staff salaries, general administration, private pension plan, rent, rates,
light, heat and cleaning and insurance to express such annual costs as weekly
averages for both 1990 and 1991, and multiply the resulting weekly averages
by the period of overrun in each year and thus produce a figure referred to as
'C').'
The total overheads for the period of delay and to be allocated between
the delayed project and other work being undertaken at the same time was
calculated as follows:
Value of work at Shipton
x Total overheads (C) = Amount claimed
Total value of work
The above formula contains a variant of the Eichleay formula and the
method described using Figure 5.19.
The employer argued that the arbitrator had erred in law because he had
awarded costs which would have been incurred by the contractor in any
event and could not therefore be classed as direct loss and expense.
The court found in favour of the contractor with the following
observations:
'All these observations like those of Lord Lloyd in Ruxley, of Forbes J in Tote
and Lyle, and of Sir Anthony May in Keating all suppose, either expressly or
implicitly, that there may be some loss as a result of the event complained of,
so that in the case of delay to the completion of a construction contract there
will be some "under recovery" towards the cost of fixed overheads as a result of
the reduced volume of work occasioned by the delay, but this state of affairs
must of course be established as a matter of fact. If the contractors overall busi-
ness is not diminishing during the period of delay, so that where for example,
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as a result of an increase in the volume of work on the contract in question

arising from variation etc., or for other reasons, there will be a commensurate
contribution towards the overheads which offsets any supposed loss, or if, as a
result of other work, there is no reduction in overall turnover so that the cost of
the fked overheads continues to be met from other sources, there will be no
loss attributable to the delay.'
It will be seen from Figure 5.17 (supra) that by comparing anticipated
turnover (b-b) with actual turnover (e-e) on a delayed project, the volume
of work ought to fall below the anticipated turnover. That is precisely what
the court was saying in the above observation.
Problems occur when the cause of delay is a suspension order which
applies to the whole, or a substantial part of the works. It is self-evident
that the above method would produce a result of zero if all of the works
were suspended and no costs were allocated to the project. Nevertheless,
fixed head office resources would have to be covered by a contribution
from the delayed project. It is possible that no management time would in
fact be spent on the delayed project. However, this does not mean that
more effective management time is spent on other projects. Management
resources would not be expended on the delayed project (so, in theory,
there would be no cost which could be allocated to the delayed projects)
thereby making it impossible to justify a claim based on costs as required
in Tate & Lyle v. GLC (supra). It must be reasonable to argue that the loss
of contribution to overheads should be recovered from the delayed project
on the grounds that the contractor's head office resources could not earn
the shortfall in contribution on any other project.
Numerous variations to the recognised formulae may be appropriate. In
Finnegan v. Shefield City Council (supra), the contractor argued (unsuc-
cessfully) that the percentage to be used in the formula should be based on
a notional contract and the contractor's direct labour cost (excluding su
contractors).
In summary, it is suggested that, unless there are compelling reasons to
modify one of the formulae, no adjustment should be necessary when cal-
culating the loss of contribution to overheads (and profit). In most cases,
Emden's formula, or Eichleay's formula, are preferable to Hudson's
formula.
Adjustment for overheads and profit in variations

Many practitioners argue that any recovery of overheads and profit in vari-
ations should be deducted from the overheads and profit included in a claim
for prolongation. This may be the case in the event of all of the variations
being the cause of all of the period of delay. It may not be the case where
some (or all) of the variations can be executed within the contract period
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or they do not cause delay. (See also The Presentation and Settlement
of Contractors' Claims by Geoffrey Trickey at pages 127 and 128.)
For example, if variations were executed during a period when there was
no delay, the contractor would be paid for them at rates which would include
additional overheads and profit. If the contract was to complete on time,
no adjustment would be made (but see Variations, infra). Therefore, if (after
completion of all varied work) there should be delay for another reason
(such as suspension),the overheads and profit recovered for this delay (using
a formula) would be the appropriate measure of damages for the period of
suspension and should stand on its own without adjustment for the over-
heads and profit recovered in the variations. Similarly, if variations are exe-
cuted concurrently with other recoverable delays, if it can be shown that
they could have been incorporated within the contractor's programme (in
the event that the other recoverable delays did not occur) then they may
also be discounted and no adjustment made.
In short, any variations which do not cause the delay which is the subject
of the prolongation claim may be ignored when making any adjustment for
overheads and profit. Conversely, if a variation is the cause of a claim for
prolongation, an adjustment should be made.
However, if Emden's formula has been used to calculate the overheads
and profit during the period of prolongation, the percentage to be used in
the adjustment may not be the same as that used in the formula. It should
be that percentage which was included in the contractor's tender.
Adjustment for non-recoverable delays

Some delays, such as exceptionally adverse weather conditions, do not
qualify for additional payment. Where such delays occur in isolation, it is a
simple matter to ignore the period of delay in any calculation of prolonga-
tion costs (see Figure 5.20). Where such delays occur in parallel with recov-
erable delays, reimbursement will depend on the particular circumstances
of the case (see Concurrent delays, infra).
It should be remembered that where a contractor has been forced into
a period of adverse weather by a variation, or other qualifying recover-
able delay, it may be entitled to reimbursement (Fairweather v. London
Borough of Wandsworth, supra). In these circumstances the adverse
weather conditions need not be exceptional in order to qualify for an exten-
sion of time and additional payment.
Concurrent delays
A single cause of delay often presents no problem when dealing with pro-
longation claims. However, in practice, many delays occur at the same time.
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Previous examples have illustrated the difficulties which arise when consid-
ering extensions of time in such circumstances. The situation is far more
complicated when deciding whether, or not, the contractor is entitled to
additional payment. There are no easy solutions to the wide variety of prac-
tical problems which arise when more than one cause of delay is affecting
the progress of the works at the same time. Some delays will qualify for
additional payment, whilst others, such as adverse weather conditions
(which may qualify for an extension of time) and culpable delay by the con-
tractor, will not normally qualify for additional payment.
Contractors are unlikely to offer any concession for concurrent delays
when putting forward a claim for prolongation. They cannot be blamed for
that (see Negotiation - Chapter 8). The following notes assume that the
author of the claim is impartial and is attempting to establish what is rea-
'7
sonable reimbursement in the circumstances.
The law applicable to the rights of the parties to damages in the event
of concurrent delay is complex. In Keating on Building Contracts, fifth
edition (pages 193-197), the author discusses the various options which
may apply, taking the view that whilst the law appears to be unclear, in the
majority of cases, the dominant cause of delay should be the deciding factor.
This has been established in cases of exception clauses used in policies of
insurance: Leyland Shipping Company v. Norwich Union Fire Insurance
Society [I9181 AC 350. It does not appear to be applicable to contracts
generally. However, this may sometimes be the case where the facts
are clear and the interaction of the various delays are relatively simple to
determine.
It is submitted that the 'dominant delay' principle is generally inappro-
priate for the majority of construction delay claims (with some exceptions).
This appears to be supported by the judgement in the Fairweather case.
If the responsibility for delays can be divided according to the circumstances,
apportionment may be appropriate. If it is impossible to disentangle the
causes and effects of the delays, the claim may fail entirely: Government
of Ceylon v. Chandris [I9651 3 All ER 48. If the competing causes of
delay are in parallel, only nominal damages may be appropriate: Carslo-
gie S.S. Co. v. Norwegian Government [I9521 AC 292.
The following guidelines may be applicable in circumstances where more
than one delay is affecting the progress of the works during the same period
of time:
where the non-recoverable delay is on the critical path and the qualify-
ing recoverable delay is non-critical, no reimbursement should be
permitted;
where the non-recoverable delay is non-critical and the qualifying recov-
erable delay is on the critical path, reimbursement should normally be
permitted;
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2
5
@ 2
@)
FIRST CRITICAL PATH
SECOND CRITICAL PATH

s3
3
=
a qualifying delay
F
J
b = non-qualifying delay
of lesser duratlon
S
D
C)
on same critical path 0
?if
=
c non-qualifying delay
of equal or lesser 3-
cn
duratlon on parallel
critical path
I
I
d = delay to completion
Figure 5.21 Concurrent delay; qualifying delay occurring first
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where both (qualifying and nonqualifying) delays are critical, then so far
as they are of the same duration, no reimbursement should normally be
permitted;
where a qualifying recoverable delay occurs first, followed by a non-
qualifying delay (both delays being on the same or parallel critical paths
- see Figure 5.21), there is an argument to support the view that reim-
bursement should be permitted;
where a non-recoverable delay occurs first, followed by a qualifying recov-
erable delay (both delays being on the same or parallel critical paths),
there are grounds to argue that no reimbursement should be permitted.
There may be circumstances which merit a departure from the above guide-
lines. For example, the greater part of the contractor's management and
supervisory staff may have been retained on site to deal with a complex
variation which has caused a delay of lesser duration than a concurrent
period of exceptionally inclement weather. If it can be shown that the con-
tractor's staff could have been released at an earlier date (had there been
no variation), then reimbursement may be permitted notwithstanding the
concurrent non-recoverable delay.
The above guidelines should not affect the contractor's rights to recover
time-related costs which are exclusively in connection with an activity which
has been delayed by the employer (such as the cost of supervisory staff
wholly employed on the section of work which has been delayed by the
employer).
Delayed release o f retention

When a project is delayed, the certificates which release the retention held
by the employer are also delayed. The delay in issuance of the necessary
certificates will give rise to a claim for finance charges on the retentions for
the period of delay. Allowance will have to be made for non-recoverable
delays.
5.9 Disruption and Loss of Productivity
The term 'disruption' when used in the context of construction and

engineering claims includes any one or a number of the following
considerations:
delays to individual activities (whether, or not, such delay caused
completion of the works to be delayed), thereby causing manpower
to be retained over a longer period to execute the same amount of
work;
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changed sequence of working arising out of delays to individual activi-

ties, thereby causing the effective use of manpower to be interrupted and
disturbed so that no production takes place during such interruption and
lower production occurs in the initial stages of the activity to which the
manpower has redeployed;
interruption and disturbance to other secondary activities (not directly
affected by the cause of disruption) caused by delay to the affected activ-
ities or changed sequence of working so that lower production is achieved
in carrying out these secondary activities;
idle (or nonproductive)time caused by rescheduling and out-of-sequence
working, thereby adversely affecting the progress of the work;
congestion in sections of the work to which rescheduled manpower
is transferred, thereby affecting productivity and progress of the
work;
general loss of productivity due to work being done piecemeal.
The following authorities and references refer to disruption under a number
of descriptions:
(a) 'Many serious breaches or substantial variations may involve neither
delay nor disturbance beyond their immediate direct cost. They may
not be on the critical path of progress, so overall delay will not be
involved. They may take place at a time when prompt action and direct
expenditure by the contractor can avoid any disturbance of the remain-
ing work. Nevertheless, even where overall delay is not involved, there
will often be serious disturbance of the contractor's internal pro-
gramme. This is particularly true of information or access breaches.
Even in the absence of immediate direct costs, labour cannot be sud-
denly hired or fired, specific tasks cannot be suddenly stopped and
restarted, and labour and plant cannot be moved backwards and for-
wards across the site, without an often substantial general loss of pro-
ductivity. This will express itself, of course, in a generally heavier labour
and plant expenditure, relative to actual work done. This may result
from the particular plant and labour force being engaged for a longer
period, or the recruitment of additional plant and labour to avoid or
recover delay. Theoretically, in reaching a decision as to which course
to follow, a contractor able to pre-plan will weigh the effect on his
extended time-related costs if there is to be a delay, against the possi-
bly marginal economic advantage of increasing his plant or labour force
- it may be reasonably assumed that he will have endeavoured to opti-
mise productivity when planning his original plant and labour force, so
that an increase in it may not be economical in terms of production.'
[Construction Contracts: Principles and Policies in Tort and Con-
tract by I.N.Duncan Wallace (p. 124, para. 8-23)]
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(b) 'Loss of productivity or uneconomic working

This is a head of claim sometimes made where there has been delay
in completion or disturbance of the contractor's regular and economic
progress even though, on occasions, the ultimate delay in completion
is small or does not occur.'
[Keating on Building Contracts, fifth edition by Sir Anthony May
(P. 21211
(c) 'A claim for the effect of an event upon the contract works themselves
which does not necessarily involve a delay in completion of the works.
This is a disruption claim and can arise even where the works are com-
pleted within the contract period.'
[Problems in Construction Claims by Vincent Powell-Smith (p. 3)]
(d) 'Delay and disruption can lead to increased expenditure on labour and
plant in two ways. It may be necessary to employ additional labour and
plant or the existing labour and plant may stand idle or be under-
employed. The latter is sometimes referred to as "loss of productiv-
ity". ' [Emphasis added]
[Building Contract Claims, second edition by Vincent Powell-Smith
and John Sims (p. 139) (p. 161 in the third edition)]
The principal elements accompanying and/or causing disruption are:
Rescheduling and out-of-sequence working.
Causes of disruption which interrupt individual activities (such as late or
incomplete information, variations or change orders, design errors and
other matters for which the employer is responsible) may sometimes be
absorbed within the original programme or schedule of work. This is par-
ticularly the case where the affected activities are not on the critical path
and/or the number of alternative 'work-faces' is sufficient to facilitate
relocation of resources from the affected activity to a location where
there is other work capable of being done (by the relocated resources)
without affecting other trades or the overall programme or schedule
due to the extensive numbers of alternative work-faces becoming
available.
However, as the installations become progressively completed, the number
of alternative work-faces decrease, bringing about an increase in lost or idle
time, additional supervision and consequential effects on other trades, dis-
ciplines and activities. As the available alternative work-faces decrease and
the consequential effects on other trades, disciplines and activities intensify,
the result may be to cause loss of productivity and actual delay to the pro-
gramme or schedule of work, whether or not the original causes of dis-
ruption are on the critical path.
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Loss of productivity
The authorities and references cited above confirm the view that dis-
ruption or dislocation invariably brings about a loss of output or loss of
productivity.
A claim for loss of productivity will usually arise out of:
the employer's default or breach of contract;
matters expressly permitted under the contract (such as variations or
change orders and suspension orders);
matters for which the employer has given an indemnity or has agreed
to reimburse the contractor therefor.
'Loss of productivity' is recognised as a valid head of claim:
'While this [loss of productivity] is clearly an allowable head of claim, it can be
difficult if not impossible to establish the amount of the actual additional expen-
diture involved.'
[Building Contract Claims, second edition by Vincent Powell-Smith and John
Sims (p. 139) (p. 161 in the third edition)]
In order to illustrate the effects of disruption and/or loss of productivity it
may be necessary to establish that a planned orderly timing and sequence
of events was affected by causes within the employer's control to the extent
that the contractor was prevented from carrying out the work in the planned
orderly timing and sequence. The planned sequence may not be that which
was envisaged at tender stage. The project manager may have planned an
alternative sequence and this should be the basis of comparison. It may not
be necessary to show that there was delay to any activity or that the com-
pletion date has been delayed.
Much has been written about the contractor's rights to additional
payment in the event of delay when the contractor's programme shows
early completion: Glenlion v. Guinness Trust (supra). Whilst this issue was
not decided, the judge referred to two authorities of importance:
'In regard to claims based on delay, litigious contractors frequently supplied to
architects or engineers at an early stage in the work highly optimistic pro-
grammes showing completion a considerable time ahead of the contract date.
These documents are then used (a) to justify allegations that the information or
possession has been supplied late and (b)to increase the alleged period of delay,
or to make a delay claim possible where the contract completion date has not
in the event been extended.'
[Hudson's Building and Engineering Contracts, tenth edition, p. 6031
and
'. . . Sometimes contractors at the commencement of or early in the course of
a contract prepare and submit to the architect a programme of works showing
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completion at a date materially before the contract date. The architect approves
the programme. It is then argued that the contractor has a claim for damages
for failure by the architects to issue instructions at times necessary to comply
with the programme. Whilst every case must depend upon the particular
express terms and circumstances, it is thought that the contractors' argument
is bad; . . .' [Emphasis added]
[Keating on Building Contracts, fourth edition, First Supplement]
Example
If, for example, the delay of five weeks on bar D (see Figure 5.5)was caused
by a suspension order issued immediately upon commencement of the
works, the contractor would be entitled to claim the non-productive costs
of its site establishment and overheads during the period of delay. These
costs would not have been incurred (or they would have been productive
costs) if the suspension order had not been issued. Similarly, if the delay of
four weeks on bar E (see Figure 5.5) was caused by a variation, the time-
related costs and any disruptive element of cost would be recoverable as
part of the value of the variation. These arguments are valid whether, or
not, the delays caused the completion date to be extended. These prob-
lems appear to have been contemplated by the judge at page 1 0 4 of the
report: 'It is unclear how the variation provisions would have applied.'
Whilst the majority of costs claimed are likely to be time-related, they
are claimed for disruption rather than prolongation. The Glenlion case does
not appear to affect the contractor's rights to claim in the appropriate
circumstances.
The Glenlion case prompted numerous articles and exchanges of corre-

spondence in the technical and legal press on the subject of delays when
the contractor's programme showed early completion. There appeared to
be two equal schools of thought, the first supporting the judgement (some
adamant that it was also the death of similar claims for recovery of
additional costs due to the delay) and the second being critical of the deci-
sion, especially with regard to the recovery of additional costs (which
Glenlion did not decide). The following commentary may put the debate
to rest.
In Oucon (Pty) Ltd v. Administrator Natal 1991 (4)SA 71, the contract
provided for completion of the work within fifteen months. The contractor,
however, contemplated completion of work within eleven months. The con-
tractor had calculated its tender on that basis and prepared a progress chart
showing completion in eleven months. The progress chart was approved by
the employer as required in terms of the Bills of Quantities. Completion of the
work was delayed by the employer through the issue of variations. Despite the
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delay, the work was completed within the fifteen months but not within the
eleven months contemplated by the contractor (see Figure 5.6 - supra). The
contractor's prolongation claim for recovery of additional expense or loss
caused by the delay (additional P & Gs) was rejected by the court. It was held
that acceptance by the employer of the progress chart did not impose any
obligations on the employer and the contractor was not entitled to claim for
delays. The contract provided for completion within fifteen months and, had
the contract taken the full fifteen months (assuming no variations had been
issued),it must be presumed that the contractor had included all the expenses
associated with the period.
The arguments put forward on behalf of Ovcon for a prolongation claim
appeared to miss the point entirely. The contract had not been prolonged
as Ovcon had completed within the contract period. Based on the law in
South Africa (and in the UK), the decision appears to be at odds with the
principles of assessing damages for breach of contract:
'The sufferer by such breach [of contract] should be placed in the position he
would have occupied had the contract been performed, so far as that can be
done by the payment of money and without due hardship to the defaulting party.'
[Victoria Falls and Transvaal Power Co Ltd v. Consolidated Langlaagke
Mines Ltd (1915)AD at p. 221
The presentation of Ovcon's case by way of a general prolongation claim
possibly took the judge's eye off the ball with respect to the cause and effect
of the delays which occurred. For example, if the employer failed to give
possession of the site for several weeks, the contractor would have incurred
loss and expense which it would not otherwise have incurred save for the
failure to give possession. The payment of loss and expense to Ovcon would
only have put Ovcon back in the position in which it would have been had
there been no default by the employer. If each delay had been looked at
individually in this way, perhaps the force of the argument would have per-
suaded the court to adopt a different view.
Further, although reference was made to various authorities, counsel for
Ovcon informed the judge that no case law on the topics could be found.
However, various cases and authorities addressed this topic, and reference
to those cases and authorities may have assisted in obtaining a decision
which would be consistent with the principles for assessing damages for
breach of contract (supra).
Firstly, the English case of Glenlion Construction Ltd v. The Guinness
Trust (supra) only dealt with extensions of time and it is no surprise (in that
case) it was decided that extensions of time could only be granted if the
delay caused the completion date to be delayed. That is to say, the exten-
sion should not be granted merely because the planned (earlier) date had
been delayed. However, the Glenlion case did not address the matter of
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loss and/or expense caused by the delay. The judge did venture to say: 'It
is unclear how the variation provisions would have applied,' In both the
Ovcon case and the Glenlion case, reference was made to similar author-
ities and, in addition, to Keating on Building Contracts. In the edition
referred to in these cases (the Supplement to the fourth edition), Keating
states:
'Whilst every case must depend upon the particular express terms and circum-
stances, it is thought that, upon the facts set out [in Wells v. Army and Nauy
Co-operative Society (1902) 86 LT 7641 the contractor's argument is bad; and
that is the case even though the contractor is required to complete "on or before"
the contract date . . . There is no authority on this point.'
However, in the fifth and sixth editions of Keating (which post-date both
cases), the author goes on to say:
'Where the programme date is earlier than the Date for Completion stated in
the Contract, it may be that some direct loss and/or expense may be recover-
able on the grounds of disruption. However, provided that the contractor can
still complete within the Contract Period, he cannot recover prolongation costs.'
[Glenlion Construction Ltd v. The Guinness Trust]
It is important, therefore, to distinguish between prolongation costs (costs
of overrun beyond the contract completion date) and disruption costs (costs
arising as a result of delays and/or disruption caused by the employer
whether, or not, such delays caused completion to be delayed beyond the
contract completion date). Counsel for Ovcon did not appear to make this
distinction on a case-by-case basis.
It appears, therefore, that in the appropriate circumstances, the door is
open to claim direct loss and/or expense if delays occur but do not neces-
sarily endanger the contract completion date, and that may include time-
related costs which would not have been incurred save for the delay.
Secondly, as to there being no authority on the point (quoted both in
the Ovcon case and referred to in Keating in the Glenlion case), this topic
has been addressed on several occasions in the United States:
'Costs are no less damaging merely because they occur fortuitously before a
contract deadline rather than after.'
[Sun Shipbuilding & Dry Dock Co v. United States Lines Inc. 76 US C.Cls
154 (1932)j
'The Government may not hinder or prevent earlier completion without incur-
ring liability.'
[John F Burke Engineering and Construction, ASBCA No 8182, 1963 BCA]
'Whilst it is true that there is not an "obligation" or "duty" of defendant [owner]

to aid a contractor to complete prior to the completion date, from this it does
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not follow that the defendant may hinder and prevent a contractor's early com-
pletion without incurring liability. It would seem to make little difference whether
the parties contemplated early completion, or even whether the contractor con-
templated an early completion. Where the defendant [owner] is guilty of "delib-
erate harassment and dilatory tactics" and a contractor suffers loss as a result of
such action, we think that the defendant is liable.'
[Housing Authority v. E W Johnson Construction Co 573 S W 2d at 3231
Some US cases address other relevant matters:
'The contractor must demonstrate that its planned schedule for the early com-
pletion of its work was both reasonable and attainable.'
[Owen L Schwam Construction Co ASBCA No 22407, 79-2 BCA (CCH)]
'It is not necessary for the contractor to communicate its intent to finish early to
the owner.'
[Sydney Constructions Co No 21377, 77-2 BCA (CCH)]
In most situations, it is not the programme which is relevant. The contractor
must show that his progress was affected and that he suffered loss and/or
expense thereby.
It is submitted that the Ovcon decision was wrong in the light of the
arguments set out above. A contractor is entitled to loss and/or expense
if the employer causes delay or disruption to the contractor's progress,
whether or not the programme showed early completion and whether or
not the contractor finished after the contract completion date. However, it
is important to consider the facts of each case very carefully as there may
be some compelling reasons, in some circumstances, to take a different
view.
Evaluation of loss of productivity

It is universally recognised that the evaluation of the additional costs
arising out of loss of productivity is difficult, if not impossible, but that this
should not be a bar to a claim for reimbursement of these additional costs
where loss of productivity can be demonstrated. Leading authorities have
said:
'. . . however, the classic element in a contractor's claim which gives rise to most
difficulty arises where delay in completion or disturbance of economic working
has been caused, whether by the owner's breaches of contract, or by late or
numerous variations. Either of these can be present by themselves, though often
they will be present together. . . .'
[Construction Contracts: Principles and Policies in Tort and Contract by I.N.
Duncan Wallace (para 8-10 at p. 115)]
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'A reasonably efficient contractor should be able to establish actual costs incurred,
but it will clearly be impossible to prove as a matter of fact what the costs would
have been had the delay or disruption not occurred . . .
'. . . All that can be said is that the architect or quantity surveyor must do his
best to arrive at a reasonable conclusion from whatever evidence is available. In
our view, it must be a reasonable assumption that some loss will have been suf-
fered in these respects where delay or disruption has occurred and the architect
or quantity surveyor cannot resist making some reasonable assessment simply
on the grounds that the contractor cannot prove in every detail the loss he has
suffered.'
[Building Contract Claims, second edition by Vincent Powell-Smith and John
Sims (pp. 139-140) (p. 162 in the third edition)]
See also Wood v. Grand Valley Railway Co (infra).
A number of methods of assessing or estimating the cost of lost pro-
duction (loss of productivity) have been used with varying degrees of success.
Comparison of actual costs with allowance in the tender

This method is based on the difference in actual expenditure on manpower,
according to the contractor's labour records, with the manpower allowed
in the tender, after making adjustments for variations and inefficiency. This
method is put forward as a possible means of assessment by a number of
authorities:
'There can be no custom or general rule because the loss will vary in each case.
A better starting point is to compare actual labour costs with those contem-
plated.3 Thus a particular activity or part of the works is taken and, where the
contract price can be ascertained, as by reference to the priced bills, the labour
element is extracted. This is a matter for experienced surveyors and is done by
taking the unit price and applying constants which are generally accepted in the
trade. From the contractor's records the actual labour content for the activity or
part is extracted. From the difference must be deducted any expenditure upon
labour which was not caused by the breach, e.g. delay or disturbance caused by
bad weather, strikes, nominated sub-contractors or the contractor's own ineffi-
ciency. If the original contract price was arrived at in a properly organised com-
petition or as the result of negotiation with a skilled surveyor acting on behalf
of the employer, the adjusted figure for the difference is some evidence of loss
of productivity.
3Such an approach was adopted in Whittall Builders v. Chester-le-Street Dis-
trict Council (unreported).'
[Keating on Building Contracts, fifth edition by Sir Anthony May (p. 212)l
The case cited in Keating - Whittall Builders v. Chester-Le-Street
District Council (unreported) - is misleading, as it suggests that the
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method of comparing actual costs with the tender was used and accepted
in this case. However, that is not so (see commentary on this case,
infra).
Legal acceptance of this approach has been mixed. In London Borough
of Merton v. Stanley Hugh Leach Ltd (1985) 32 BLR 51 it was held that
no evidence was available to support such a contention and that the result
was too speculative.
However, in Penuidic Contracting Co. Ltd v. International Nickel
Co. of Canada (1975) 53 DLR (3d) 748, the Supreme Court of Canada
upheld the lower court's decision to accept the difference between the
contractual sum per ton of ballast (in a track for a railroad) and the larger
sum which was attributable to the adverse conditions caused by the
employer's breach of contract. The court was impressed by the decision in
Wood v. Grand Valley Railway Co (1916) 51 SCR 283, where Davies J
said:
'It was clearly impossible under the fads of that case to estimate with anything
approaching to mathematical accuracy the damages sustained by the plaintiffs,
but it seems to me to be clearly laid down there by the learned Judges that such
an impossibility cannot "relieve the wrongdoer of the necessity of paying
damages for his breach of contract" and that on the other hand the tribunal to
estimate them whether jury or Judge must under such circumstances do "the
best it can" and its conclusion will not be set aside even if "the amount of
the verdict is a matter of guess work".' [Emphasis by the Supreme Court of
Canada]
In Construction Contracts: Principles and Policies in Tort and Contracts
by I.N. Duncan Wallace, the distinguished author respectfully submits that
the decision of the Court of Appeal (which rejected the basis of assessing
damages accepted by the lower court and ultimately upheld by the Supreme
Court) is to be preferred, but the author goes on to say that there is no
evidence that the author's reservations were canvassed in evidence or
argument.
Acceptance of this method, it is submitted, will depend on:
to what extent the cause and likely effects are supported by evidence to
satisfy the requirement to prove the extent of the loss 'on the balance
of probability';
whether the claim arose out of a breach of contract or under one of the
provisions of the contract.
Perhaps the courts may be persuaded to accept this method in the case of
breach of contract but may be less willing in the case of such additional
costs arising out of variations or change orders. Each case must be viewed
on its merits.
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Assessed percentage addition on disrupted work

The method of adding a percentage on to the direct costs of labour or plant
is perhaps the most common in construction and engineering contracts.
Arbitrary additions are unacceptable:
'Some contractors add an arbitrary percentage to the contemplated labour costs.
It is difficult to see how this can be sustained.'
[Keating on Building Contracts by Sir Anthony May (p.212)]
Where no other method is possible, calculations based on sound reasoned
assumptions may be acceptable, depending on the circumstances.
In the United States, the Armed Services Board of Contract Appeals
(ASBCA) accepted a 25 per cent inefficiency for winter work: Appeal o f
Pathman Construction Co ASBCA 14285, 71-1 B.C.A. (CCH) 8905
(1971)- Construction Delay Claims by Bany B. Bramble and Michael T.
Callahan at p.199 (p.3-56 in the third edition).
Comparison of output or productivity with previous or

other projects or industry statistics
Where the contractor keeps records of output and productivity on similar
projects, comparison of output or productivity on the affected project
with that achieved on unaffected projects may be a basis for assessment.
Alternatively, published industry statistics may be a guide for comparison.
This method does not take into account different (and sometimes
unique) circumstances in any individual project or the difference in man-
agerial supervisory or organisational skills employed on the affected
and unaffected projects. Nevertheless, this method may be an acceptable
basis in some circumstances and may be used in addition to the other
methods described above as a means to support other calculations or assess-
ments.
In Construction Delay Claims by Barry B. Bramble and Michael T.
Callahan at p. 201 (pp.12-69 to 12-70 in the third edition), the authors
cite 'Effects of Job Schedule Delays on Construction Costs issued by the
Mechanical Contractors Association of America, at 7 n.124':
'Successful contractors have learned to predict with considerable accuracy the
number of man-hours that would normally be expended by their production
workers to accomplish the tasks to be performed if conditions remain as
expected at the time estimates are prepared. Most contractors have performed
similar work many times in the past and have kept records of man-hours
expended to accomplish various tasks. In addition, reference manuals indicating
average times consumed for a wide variety of tasks are used as estimating guides.
Individual contractors can add or subcontract percentage factors to the average
times to allow for circumstances they expect to encounter on a given project
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which differ from those encountered on previous projects or those on which

industy averages are based.'
Comparison of output or productivity during known

disruption with output or productivity when little or no
disruption occurred
This method takes into account what productivity the contractor could (and
did) actually achieve when allowed to execute the work normally, and the
actual productivity when the work was affected (disrupted or dislocated) by
the causes relied upon by the contractor to justify his claim.
Apart from simultaneous contractor defaults during the period of dis-
ruption or dislocation (which had not also been evident during the period
when the work was not affected), this method overcomes all of the prob-
lems associated with any of the other methods mentioned (including general
contractor inefficiency). That is to say, if the contractor is generally ineffi-
cient over the duration of the project, this factor is taken into account in
the direct comparison of productivity, but if a new element of contractor
inefficiency is introduced during the affected period (such as changes in
supervision and/or labour force), then this new inefficiency must be
addressed by making appropriate adjustments to the results obtained by
direct comparison of productivity.
This method is put forward in Emden's Building Contracts and Prac-
tice, eighth edition, Volume 2 by S. Bickford-Smith (p.N/45):
'Initially, a period is examined when the contract was running normally, and the
value of work done during that period is assessed and then divided by the number
of operatives and/or items of plant on site. The figure thus anived at is com-
pared with the same figure calculated for the period of delay or disruption, and
the comparative figures are then used to calculate the amount of loss.'
In Problems in Construction Claims by Vincent Powell-Smith (p.112)
the distinguished author expresses doubt about the legal basis of this
method. The author does not, however, make reference to the case of Whit-
tall Builders Company Ltd v. Chester-le-Street District Council (infra),
in which this method was clearly accepted. It is possible that the author
missed the fact that the Whittall case dealt with this issue (as it was more
widely referred to in connection with head office overheads to which the
author referred elsewhere), since the lack of any reference to it with respect
to disruption claims (to criticise or support the decision) is inconsistent
with the otherwise meticulous reference to the latest cases throughout the
author's publication.
This method was approved in Whittall Builders Company Ltd
v. Chester-le-Street District Council (1985) unreported. Mr. Recorder
Percival QC said:
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'. . . Therefore I take the view that the total paid to the men employed, whether
by wages or bonus, should be taken as the cost actually and properly incurred
by the plaintiff for labour in pursuance of the contract up to the end of Novem-
ber 1974. Clearly the consequence of the defendant's breaches was that the
plaintiff received much less value for that expenditure than he would have done
if there had been no breaches. . .
'. . . Several different approaches were presented and argued. Most of them are
highly complicated, but there was one simple one - that was to compare the
value to the contractor to the work done per man in the period up to Novem-
ber 1974 with that from November 1974 to the completion of the contract. The
figures for this comparison, agreed by the experts for both sides, were £108 per
man week while the breaches continued, £161 per man week after they ceased.
'It seemed to me that the most practical way of estimating the loss of produc-
tivity, and the one most in accordance with common sense and having the best
chance of producing a real answer was to take the total cost of labour and reduce
it in the proportions which those actual production figures bear to one another
- i.e. by taking one-third of the total as the value lost by the contractor.
'I asked both Mr. Blackburn and Mr. Simms if they considered that any of the
other methods met those same tests as well as that method or whether they
could think of any other approach which was better than that method. In each
case the answer was no. Indeed, I think that both agreed with me that that was
the most realistic and accurate approach of all those discussed.'
The above case is illustrated in Figure 5.22.
In General Insurance Co of America v. Hercules Construction, 385
F.2d 13(8th Cir 1967), productivity and costs during the period when there
were difficulties in delivery of pre-cast units (February 12 until May 6) were
compared with productivity and costs during the period when pre-cast units
were delivered in substantially proper sequence with minimal fabrication
deficiencies (after 6 May). The increase per unit that it cost Hercules was
then multiplied by the number of units erected during the period from
February 12 to May 6 in order to determine the amount of damages.
The court found in favour of Hercules and awarded damages of
US$21900. General Insurance Company appealed on the grounds that
the proof of damages put forward by Hercules was illogical and not in
accordance with law. It was held that Hercules's method of computing
damages was not unreasonable as a matter of law.
The above case is illustrated in Figure 5.23.
In Natkin & Co v. George A Fuller Co 347 F.Supp.17 (WD Mo 1972),
reconsidered 626 F.2d 324 (8th Cir 1980), the court accepted compari-
son of productivity as a basis of assessment of damages (page 34, para
XI1 D):
'As of 11/25/66, on which date all parties accepted Natkin's performance of
the original contract as 43% complete, Natkin's cost experience on that work
which was comparable to the work remaining to be performed. . . . . .was
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1974 1975

WZ/Z/Z/J/LHll/I/IYhY/I'//a
1
PIECEMEAL POSSESSION ''.I4
--------------------------..-----.
v
43 WEEKS
ACTUAL CONSTRUCTION PERIOD TOTAL DEUY
EQUNALENT PERIOD OF D U Y
%u-pRmoNcA~IoN
%R-PRmoNcATIoN TS 4
COSTS
COS
33.38
LOSS OF PRODUCTION
\
\
- -- ---
-
Figure 5-22Whittall Builders Company Ltd v. Chester-le-Street District Council

16.5.1985
1962
JAN FEB MAR APR MAY JUN JUL AUG SEP
2M ORIGINAL PROGRAMME
1212 ACTUAL PROGRESS 119
OSS OF PRODUCTIVIN
Figure 5.23 General Insurance Co of America v. Hercules Construction 385

E2d (8th Cir 1967)
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0.181 manhours for each standard piping unit, as contrasted with Natkin's
original estimate of 0.20 for each such unit.'
The General Insurance and Natkin cases are cited in Construction
Delay Claims by Barry B. Bramble and Michael T. Callahan (pp. 201-204)
(pp.12-70 to 12-73 in the third edition) where, with respect to Natkin v.
Fuller, the authors write:
'Costs for performing Natkin's work prior to November 25, 1966 were 0.181
man-hours for each standard piping unit compared to 0.20 man-hours after
November 25, 1966. . . . . . The court awarded Natkin $715,567 for its lost
productivity claim. The court stated that comparing actual costs before and after
the point in time defendant's failures caused damage to plaintiff was a reason-
able method for computation of damages. The court also said Natkin's evidence
of comparing the man-hour cost for a standard piping unit before November 25,
1966, with the cost after that date was a logical basis for computing Natkin's
damages.'
There is an important difference between the extract from the judge-
ment (which, in paragraph XI1 D, compares actual productivity with the
tender productivity) and Bramble and Callahan's interpretation (which
appears to compare actual productivity before the disruption with produc-
tivity during disruption). However, the authors' interpretation of the court's
findings are otherwise consistent with the judgement which states at page
34, paras XI11 A and B:
'A. Plaintiff's cost for performing each unit of its work under the contract after
November 25, 1996 were greater than they were prior to November 25, 1996.
'B. Plaintiff's costs were greater after November 25, 1996 because it was com-
pelled to accelerate when the defendants failed and refused to grant extensions
of time, and there was a resulting impact.'
and in its Conclusions of Law at page 35, Appendix B, Conclusion IX:
'Plaintiff's evidence of comparing the manhour cost for a standard piping unit
before November 25, 1996 with the manhour cost for a standard piping after
said date, is a logical basis for computing plaintiff's damages pertaining to addi-
tional labor costs.'
It should be noted that the court accepted that Natkin's actual produc-
tivity before the disruption commenced (0.181 man-hours per piping unit)
was the starting point (baseline productivity)from which to calculate loss of
productivity. That is to say, even if (as the figures quoted suggest) Natkin's
productivity fell to the same level as its tender allowance during the period
of disruption (0.20 man-hours per piping unit), it was right to compensate
Natkin if his productivity during the disrupted period was no lower than its
tender. Conversely, if a contractor's achieved productivity before disruption
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1966 1967
J A S O N D J F M A M J J A S O N
25111
LOSS OF PRODUCTIVITY
x 100%= 9.5%
DURING PERIOD OF
= 0.1 81 man-hours
= 0.20 man-hours
Figure 5.24 Natkin & Co v. George A Fuller Co 347 E Supp 1 7 (WD Mo

1972), reconsidered, 626 E2d 324 (8th Cir 1980)
was less than the tender, then that would be the baseline from which to
measure loss of productivity.
The above case is illustrated in Figure 5.24 based upon the assumption
that the quoted productivity figures before and during disruption were as
stated by Bramble and Callahan.
Which method of calculating loss of productivity

should be adopted?
Any of the methods described above may be a reasonable method of evalu-
ation in the appropriate circumstances, but the various methods are subject
to varying degrees of certainty and accuracy. The situation is best summed
up by I.N. Duncan Wallace in Construction Contracts: Principles and
Policies in Tort and Contract (para 8.24, pp.124-125):
'The computation of loss of productivity claims is one of the more difficult prob
lems in this field. An arbitray guess or assertion of some percentage of the total
affected labour or plant costs of the trades in question is not convincing. Another
highly unconvincing method would be to compare actual total costs of the trades
affected against alleged pre-contract estimates of those costsz3 . . . . . . More
helpful will be a close analysis of any contract programme required to be sup-
plied by the contractor, and a close correlation of it to the contractor's recorded
labour and plant and work output on site, together with the chronology and con-
temporay evidence of the breaches or variations in question. In addition, expert
evidence coupled with available publications showing the plant, labour and mate-
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rial elements of the better known construction processes, with various factors for
the special conditions of particular contracts, are available in the civil engineer-
ing as well as the building industries. But the most convincing of all will be
comparisons of actual hours and output, during a period known to be unaffected,
with those in the affected period. In addition, of course, there will frequently be
found to be contemporary site records kept of standing time of men or plant on
well-organised contracts. In practice, good quantity surveyors in both industries,
on each side of the negotiating table, can always do much better than asserting
arbitrary percentages on affected turnover, or comparing contract with actual
total cost. As will be seen, there are very powerful legal as well as logical objec-
tions to the use of this latter "total cost" method.' [Emphasis added]
The reference cited by Duncan Wallace at 23 is E.C. Ernst, lnc v. Koppers
Co 4 7 6 F. Supp.729 (WDPa 1979).
The most convincing method, that is comparing productivity during a
period when there was no disruption with productivity during a disrupted
period, is not without its problems.
In Whittall Builders Company Ltd v. Chester-le-Street District
Council (supra) the method accepted by the court was based on a com-
parison of productivity over all trades for the duration of the project by
expressing the output per man-week in pounds sterling, that is:
Average productivity during period of default £108 per man-week
Average productivity during period of normal working £161 per man-week
therefore loss of productivity during period of default was:
161-E108
x 100 per cent = 33 per cent
£161
This percentage was then applied to the total cost of labour during the
period of default resulting in 33 per cent of the cost of labour (represent-
ing the loss of productivity), being a total of £21479.35.
Because this project was for the refurbishment of 108 dwellings, the pro-
portions of each trade and the type of work being undertaken in each week
were probably similar (save for the beginning and end of the period). These
circumstances lend themselves to comparison in the manner used in this
case.
In General Insurance Co of America v. Hercules Construction (supra),
the comparison was made between productivity on the particular sections
of the work affected (in this case erection of pre-cast units). These circum-
stances also lend themselves to comparison in this manner because of the
repetitive nature of the delayed and disrupted work.
Similarly in Natkin & Co v. George A Fuller Co (supra), installation of
piping units were the subject of delay and disruption, thereby making it suit-
able for comparison purposes. In this case the loss of productivity may have
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been calculated as follows (assuming Bramble and Callahan are correct -

supra):
Productivity during period of no default 0.181 man-hours per unit
(or 5.525 units per hour)
Productivity during period of default 0.20 man-hours per unit
(or 5.00 units per hour)
therefore the loss of productivity during the period of default was:
5.525 - 5.00
x 100 per cent = 9.5 per cent
5.525
The above method (unamended)may not be appropriate where the pro-
portions of the various trades, disciplines and activities are substantially dif-
ferent during the period of disruption or dislocation when compared with
the period when there was no disruption or dislocation. Significant errors
can occur if it is not recognised that the man-hour content may be very
different during the following phases of the project:
Phase 1: Superstructure - a comparatively low labour content may be
involved in this stage because of the high proportions of mechanised
plant and large material sections, such as steel and prefabricated units,
involved.
Phase 2: 1st and 2nd fix carcassing and service installations - a higher
labour content is invariably involved during this section of work.
Phase 3: Final fitting-out and installation of equipment - during this
period the manpower element is likely to be a lower proportion of the
total cost because of the high value of fittings, finishing and hi-tech
equipment.
Further changes in the proportions occur as the three phases overlap,
so that the labour content as a proportion of the total may be constantly
changing.
This difficulty may not be overcome simply by comparing the produc-
tivity of each individual trade, discipline or activity, as there may be prob-
lems in showing that periods of lower productivity in any single discipline
are due to causes of disruption directly linked to that discipline. For
example, substantial causes of disruption to pipe fitting may cause whole-
sale disruption to electrical installations, HVAC installations and fitting-out
(even where there may have been no changes to those disciplines).
It is also essential to take account of all of the following:
variations and change orders;
other claims and additional work;
growth (or re-measurement of contract work);
any other contract adjustments.
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One solution is to employ a method based on Earned Value Costing.

Earned Value Costing has developed from the US DoD Cost/Schedule
Control Systems. In its basic form, Earned Value Costing measures per-
formance by monitoring total cost or value against the planned budget.
However, the Earned Value Costing method deals with costs and not man-
hours. The principal objectives of and results from Earned Value Costing
(that is to measure performance), and comparison of performance during
affected and unaffected periods, are valid and admirably suited to satisfy the
criteria which were the basis of assessment in the UK and US cases cited
above.
In order to utilise the basic techniques of Earned Value Costing to cal-
culate the loss of productivity of labour (or plant), the following process
takes into account most of the shortcomings which would otherwise be
inherent in this method of calculation:
(1) Determine the actual man-hours (cumulative and monthly) from labour
records.
(2) Determine the planned man-hours at the same dates (as I), based on
measurement or by reference to the schedule or programme and
planned resource allocation. (If the planned man-hours have been based
on the schedule or programme, it is essential that these should be
adjusted to account for any delay or 'slippage'.)
(3) Add the man-hour content in all variations, change orders, additional
work and other claims to the man-hours determined in 2 above.
The performance index or productivity factor (PF) of labour is then calcu-
lated in the same way as in the Earned Value Costing method:
Achieved man-hours during the period
PF =
Actual man-hours expended during the period
where Achieved man-hours is the sum of the man-hours included in the
tender plan for the original contract work plus the man-hours in any addi-
tional work (variations, change orders and other claims etc.).
Apportionment or allocation of the man-hours in the additional works
should be done as accurately as possible. Day-works are the easiest to allo-
cate to the time when the work was carried out. Variations and change
orders may be allocated to periods of time according to the nature of the
work and the schedule of work or programme. Subcontract work or 'work
packages' may be allocated according to known or assessed periods of exe-
cution. Growth or changes due to re-measurement may be identified accord-
ing to the individual disciplines or activities affected and allocated based on
the progress of the changed work.
Comparison of productivity may then be done as shown in the follow-
ing example (assumed data):
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Analysis of man-hours and productivity in affected or

disrupted period A
Actual man-hours expended during the period = 905
Planned (or achieved) man-hours during the period = 825
Achieved man-hours 825
PF = - - = 0.912
Actual man-hours 905
that is, for every 1.0 man-hour worked, 0.912 man-hour's value of work
was produced.
Analysis of man-hours and productivity in unaffected or

normal period B
Planned (achieved)man-hours during the period = 623
Achieved man-hours 623
PF = = -= 1.031
Actual man-hours 601
that is, for every 1.0 man-hour worked, 1.031 man-hours' value of work
was produced.
Loss of productivity in affected period A (compared with unaffected period B)
- 1'031-0.912 x 100 = 11.54 per cent

1.031
It should be noted that the data used for this example does not, in itself,
indicate separate periods for which a loss of productivity claim may arise.
In order for the Earned Value method to succeed in a loss of productivity
claim it is also necessary to be able to show distinct periods for compari-
son purposes, and that the period for which loss of productivity is claimed
is affected by a significantly higher incidence and/or volume of defaults or
disruptive matters relied upon as causes of the loss of productivity. This
process will need considerable research but is essential to illustrate cause
and effect.
Where the productivity factor (PF)departs significantly from 1.0, the
figures may be distorted if a substantial amount of the additional work is
based on cost (for example day-work), as this work will always be executed
with a productivity factor (PF)of 1.00. That is to say, there is no loss of
productivity on the actual work carried out on a day-work basis or on work
which is priced from hours actually worked. This distortion may be over-
come by the following modification to the formula:
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Achieved man- hours during the period less the

man- hours expended at cost
PF =
Actual man- hours expended less the man- hours recovered
in additional work at cost
In the modified formula, the achieved man-hours includes the total value
(in man-hours) in the original contract work and in additional work executed
during a given period based on rates or prices applicable to the work exe-
cuted (that is all man-hours at cost, such as day-work, have been excluded
from the calculation).
If, during the periods in the above example, a significant amount of work
had been done at cost (that is for every hour worked, one hour's value of
work had been achieved, or PF = 1.0), then the calculation of loss of pro-
ductivity may be as follows:
Analysis of man-hours and productivity in affected or disrupted

period A
Man-hours expended at cost during period = 125
Planned (or achieved) man-hours during the period = 825
PF = Achieved man-hours - 825 - 125 = 0.898
Actual man-hours 905 - 125
that is for every 1.0 man-hour worked, 0.898 man-hour's value of work
was produced.
Analysis of man-hours and productivity in unaffected or

normal period B
Man-hours expended at cost during period = 75
Planned (achieved) man-hours during the period = 623
PF = Achieved man-hours - 623 - 75 =

Actual man-hours 601 - 75
that is for every 1.0 man-hour worked, 1.042 man-hours' value of work
was produced.
Loss of productivity in affected period A (compared with unaffected period B)
- 1'042-0'898 x 100 = 13.82 per cent

-
1.042
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Similar calculations may be done to determine the loss of productivity of

mechanical plant.
Unfortunately, when projects go wrong from the outset, it may be impos-
sible to identify any period when the progress of the works was relatively
free from disruption. Alternatives such as comparing parts of the works
which were not disrupted with parts of the works which suffered from
disruption may be applied. If neither of these methods can be adopted,
one of the other alternative methods mentioned above may be the only
solution.
In many circumstances, it is difficult or impossible to calculate the cost
of disruption of each individual element. A global approach may be the
only solution, J. Crosby & Sons Ltd v. Portland Urban District Council
(supra - Chapter 1). This method may be appropriate where the evidence
of delay and disruption is overwhelming and there is no significant de-
fault on the part of the contractor. If it can be shown that the contractor
was partly responsible for the disruption, this type of claim may fail entirely,
or the additional costs may have to be borne, in part, by the
contractor.
5.10 Claims for Acceleration
In the event of delay to the progress of the works, the employer, or the
contractor, may be faced with deciding whether, or not, there are good
grounds to accelerate the progress of the works to bring about earlier com-
pletion (to the whole, or part of the works).
From the employer's point of view, acceleration may be advantageous
in the following circumstances:
where it is essential to achieve completion by an earlier date for com-
mercial reasons;
where the delays qualify for additional payment, there is a real proba-
bility that the cost of acceleration will be less than the cost of prolonga-
tion for the period, which can be reduced by acceleration;
where there may be substantial savings in escalation costs as a result of
earlier completion;
where the actual loss to the employer for late completion is greater than
the liquidated damages which may be recovered from the contractor.
Some forms of contract (for example GC/Works/l Edition 3) provide for
acceleration. However, the contractor's consent is usually required and the
acceleration cost is normally agreed beforehand. Where there are no con-
tractual provisions, a separate agreement will be required. In any event, the
terms of an acceleration agreement (including matters required to be dealt
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with pursuant to clause 38(2)(e)of GC/Works/l) should contain provisions

in the event of:
a subsequent delay by qualifying events which would entitle the contractor
to an extension of time for completion (thereby delaying the earlier date
for completion);
a failure to complete by the earlier completion date for reasons which do
not qualify for extensions of time (the employer may wish to increase
the rate of liquidated damages in the light of his revised anticipated loss).
Whatever the reason for acceleration (even if the contractor is partly respon-
sible for delay and is already liable for liquidated damages), the contractor
is likely to be in a strong bargaining position when terms are agreed. The
employer should be reasonably confident that the objectives of an accelera-
tion agreement will be met before concluding any deal.
From the contractor's point of view, acceleration may be advantageous
if he is in culpable delay and the cost of acceleration is less than the cost
of prolongation.
However, when a contract is delayed and no (or insufficient) extensions
of time have been made, the contractor may be faced with a dilemma.
Should the contractor proceed to complete later than the completion date
and run the risk of liquidated damages or should he accelerate the progress
of the works to eliminate or reduce that risk?
Very often, pressure is brought to bear on the contractor to improve
progress. The language used in these circumstances usually avoids the term
'accelerate', but the contractor is intended to be left in no doubt that he is
being pressed to take measures to improve the progress of the works.
Veiled, or patently open, threats of deducting liquidated damages may
sometimes be used. The contractor's options are:
a to keep his nerve in the belief that the extensions of time will eventually
follow (or be awarded in arbitration), o r
a to take all of the necessary measures to improve progress and bring about
earlier completion, or
a to take some measures to improve progress in the hope that some exten-
sion may subsequently be made to the actual completion date.
The decision to accelerate in such circumstances is not easy. If the con-
tractor has a 'cast iron' case for extensions of time, then the first option is
probably the best. In these circumstances, the right to recovery of accelera-
tion costs may be in doubt. If the architect, or engineer, has responded to
all requests for an extension of time, giving reasons for not making an
extension, or explaining why an extension was for a lesser period than the
contractor's estimate, the contractor is better placed to judge whether, or
not, the extension is reasonable or capable of being reviewed. However, if
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there is no response, or if the response is an unreasoned rejection of the

contractor's application for an extension of time, the contractor has no
means by which to judge the eventual outcome which may result from
further representations. All of these circumstances, including the pressure
which may be brought to bear to improve progress, will influence the con-
tractor's decision to accelerate.
Where it can be shown that the contractor was entitled to an extension
of time when he took the decision to accelerate, and that the architect, or
engineer, ought reasonably to have made the extension of time promptly,
there are grounds to argue that the contractor is entitled to reimbursement
of reasonable acceleration costs. The claim will be based on the premise
that there was a breach of contract (that is, failure to operate the extension
of time provisions). The success of such an argument will depend on:
whether the contractor had complied with the contractual provisions
to give notice and particulars of the delay in accordance with the
contract;
whether the architect, or engineer, had properly considered all of the
circumstances and events for each delay before making, or rejecting, an
application for an extension of time (there may be a considerable
difference between a genuine attempt to make an extension where the
conclusion was merely wrong, and a rejection out of hand without
proper, or any, consideration being given to the matter);
to what extent the contractor had communicated his intention to
accelerate and the circumstances at the time of making the decision;
whether, or not, the contractor's decision was a sensible commercial
decision in the circumstances;
whether, or not, the contractor's claim for the costs of acceleration was
less than the probable cost of prolongation (it may be equitable to reim-
burse the contractor for the costs of acceleration if the employer was
ultimately going to benefit by a saving in the amount of the contractor's
probable claim for prolongation -that is to say, the employer should not
benefit from his own default: Alghussein Establishment v. Eton College
- Chapter 1, supra).
Invariably, it can be shown that the reason for failing to make extensions
of time was a result of pressure from the employer on the architect, or
engineer. Sometimes this is evident from the conduct of the employer's rep-
resentatives and the professional team at meetings (or even in correspon-
dence). Where this is not evident, it may come to light during discovery of
documents or upon cross-examination in arbitration or litigation. Unfortu-
nately, it is becoming increasingly common for some powerful employers
to use the threat of termination of services (or the promise of future work)
as a lever to put pressure on, or influence the architect or engineer.
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If such pressure or influence was present, the contractor would have

a prima facie claim for reimbursement (see Morrison-Knudsen v. B.C.
Hydro & Power and Nash Dredging Ltd v. Kestrel1 Marine Ltd - Chapter
1, supra).
If it should be established that there is a case for reimbursement of
acceleration costs, there is the difficult task of proving the actual amount
of the claim. Costs which need to be considered are:
Non-productive overtime - That is, the premium rates paid to opera-
tives for working outside normal hours. Not all of the overtime hours are
recoverable. Only those hours in addition to the allowance in the con-
tractor's tender should be claimed (if the contractor had always planned
to work nine hours per day and Saturday mornings in order to complete
within the original contract period, he could only claim the additional
hours in a claim for acceleration).
Additional cost of employing extra staff and operatives -Higher rates
of pay, incentives, travelling time, subsistence and transportation costs
of importing labour.
Loss of productivity - An increase in the number of staff and opera-
tives does not necessarily bring with it a proportional increase in pro-
duction. On a congested site, labour cannot be utilised as efficiently. The
co-ordination of various activities and trades becomes more demanding
and there is likely to be a greater incidence of waiting time between
activities.
Increase in the use of lighting and power - Inevitable in winter and in
large buildings and basements.
lncrease in the hire of equipment and plant (sometimes fuel only).
Whatever the reasons for acceleration, the contractor ought to be aware,
before incurring the additional costs, that care should be taken to keep
good records to enable the above costs to be substantiated. It should also
be borne in mind that, whatever the moral grounds justifying acceleration,
in practice this head of claim is one of the most difficult to justify on legal
grounds.
5.11 Variations
Variations to the works are almost inevitable. Therefore, all standard forms
of contract contain provisions to deal with them. Some variations can be
made without affecting the progress of the work and with no change in the
method, sequence and cost of the work to be done in the variation. In such
circumstances, the rates applicable to the contract can be applied to the
measured quantity of work in order to arrive at the value of the variation.
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However, even when these simple rules are applied, there may be some
indirect costs which need to be addressed.
For example, if the costs of insurance premiums have been included
in the 'Preliminaries' sections of the bills of quantities, there may have to
be an adjustment made to the 'value related' element of the insurance
premiums in the bills to reflect any change caused by variations. Where
there is a decrease in the contract price as a result of variations, there
may be no adjustment to the cost of insuring the works (depending
upon the insurer's practice in this regard). However, a decrease in the
contract price may justify a reduction in the allowance for employer's
liability insurance. Likewise, if small tools and equipment are priced in
the preliminaries section of the bills, an increase may be justified if the
contract price is increased by variations. Where there is a decrease in the
contract price, the likelihood of the contractor being able to save on
the amount of tools and equipment is remote (unless the reduction in
work was known well in advance of the need for the necessary tools and
equipment).
In practice, most variations have some effect on the progress of the
works and the method of executing the work. Where it is possible, each
variation should be valued taking into account all of the delaying and dis-
ruptive elements which are directly related to the variation. Common factors
which affect the valuation of variations are:
Changed conditions or circumstances -The varied work may be carried

out in different circumstances than those contemplated at tender stage
for reasons which are entirely related to the nature of the variation itself.
For example, the contractor may have allowed for excavation to reduced
levels using scrapers to deposit spoil in a temporary spoil heap for future
disposal. Following a variation to add a length of surface water drain
across the site in the location of the spoil heap, the contractor is forced
to excavate and load into lorries and cart away most of the spoil in one
operation. The revised method takes longer so that more work is done
in wet weather and the operation is more costly. There is no delay or
disruption to the works as a whole. This change could, and should, be
dealt with by valuation under the variation provisions in the contract.
There is express provision for such an eventuality in clause 13.5.5 of
JCT80.
Changed quantities - Some changes in quantities have a significant
effect on cost, even when the nature of the work and the method of exe-
cuting the work are unchanged. For example, an increase in the volume
of concrete may require working overtime in order to complete a floor
slab which may be critical to the activity planned to commence the fol-
lowing day. Another example is where an increase in quantities causes
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some of the work to be carried out later. If the quantity of brickwork

increased by twenty per cent, and using the same resources, the time to
execute the work (but not any other activities or the contract as a whole)
was extended into another pay increase, then the extra costs resulting
from the pay increase should be reflected in the value of the variation
(assuming a fixed price contract).
Changed timing - Work of a similar nature to that contained in the con-
tract may be ordered at different times so that material and labour costs
are not the same as those for the original work.
Small quantities - Variations requiring ordering and execution of similar
work in small quantities may involve loss of purchasing discounts and
increased prices payable to subcontractors who may have to return to
site after completion of the original subcontract work.
Time-related costs - Where it is possible to isolate a period of delay to
part, or the whole, of the works to a single variation (or group of varia-
tions), the time-related costs may be reflected in the value of the varia-
tion. For example, a major variation to the ground floor structure may
cause the time taken to reach completion of the first floor slab to be
delayed by one week. If may be appropriate to include the costs of the
entire concrete, steelwork and carpenter resources, including concrete
mixers, pumps, dumpers, tower-crane, supervision and other preliminary
items in the value of the variation. Additional time may be required as
a result of actual remeasured quantities exceeding the quantities in the
contract bills.
Time-related costs were the subject of a dispute under conditions of con-

tract which were similar to those contained in clause 52 of the FIDIC and
ICE conditions of contract. In Mitsui Construction C o Ltd v. Attorney
General of Hong Kong (1986) 33 BLR 1, the executed work in a tun-
nelling contract was significantly different from that measured in the bills
of quantities. The changes in quantity were not a result of a variation order
given by the engineer. The contract period was twenty-four months. The
result was that the contractor had taken much longer to complete the works
and the engineer had granted an extension of time of 784 days. The con-
tractor argued that he was entitled to compensation for the costs of the
extra time taken to complete the works. The employer argued that the con-
tract did not empower the engineer to agree or fix any adjusted rates. The
Privy Council ruled that the engineer was empowered to vary the rates,
thereby opening the way to take account of the time-related costs in the
valuation of the variation. It should be noted that clause 2.2.2.2 of JCT80
contains provisions which would enable time-related costs to be taken into
account in the event of a variation arising out of errors in the quantities in
the contract bills.
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Clause 52(3) of the seventh edition of the ICE conditions provides for
rates for varied works to be varied from the contract rates if the work is
not of a similar character or is not carried out under similar conditions as
those of the original contract work. Clause 52(4) provides for the contract
rates to be revised for the original contract work if the execution of the
original work renders such rates to be unreasonable. That is to say, the
method or conditions under which the contract work is executed must be
significantly affected by virtue of the varied work so that the contract rate
is no longer reasonable. The adjustment of any rates are subject to the
requirements to give notice, keep records and to provide particulars and
accounts in accordance with clause 53.
Clauses 52.1 and 52.2 of the 1987 FIDIC fourth edition contain similar
provisions as the ICE conditions, except that clause 52.2 contains what
appears to be very onerous provisions regarding the notice to be served by
the contractor if he should require a change in any rate:
'Provided also that no varied work instructed to be done by the Engineer pur-
suant to Clause 51 [Variations] shall be valued under SubClause 52.1 or under
this SubClause unless, within 14 days of the date of such instruction and, other
than in the case of omitted work, before the commencement of the varied work,
notice shall have been given either:
(a) by the Contractor to the Engineer of his intention to claim extra payment or
a varied rate or price, or
(b) by the Engineer to the Contractor of his intention to vary a rate or price.'
If taken literally (and without reference to other provisions, infra), the
provision to give notice within 1 4 days and before commencement of the
varied work is a condition precedent to the contractor's (and the engineer's)
rights under the clause. It is uncertain how RDIC intended the clause to
operate. However, there are at least two important difficulties with these
provisions:
(1)Clause 52.1 covers valuation of variations at contract rates as well as
varied rates, therefore, if the clause is construed literally, it appears that
every single variation (including variations where no instruction is
required - such as increases in quantities), whether the rate is to be
changed or not, must be notified within fourteen days of the instruc-
tion and before commencement of the varied work. It is hardly likely
that the contracting parties agreed to this interpretation. It is probably
impossible to comply with such provisions in every case, particularly in
the case of an increase in quantities which may only come to light after
the work was substantially completed and had been measured on site
or from drawings by the engineer (or contractor).
(2) Clause 53.1 of FIDIC states:
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'Notwithstanding any other provisions of the Contract, if the Contractor intends

to claim any additional payment pursuant to any Clause of these Conditions or
otherwise, he shall give notice of his intention to the Engineer, with a copy to
the Employer, within 28 days after the event giving rise to the claim has first
arisen.'
Clause 53.4 provides for claims to be considered by the engineer if the
contractor fails to comply with the twenty-eight day notice provision.
However, no such relaxation exists to enable the engineer to lower any
rates unless he gave the contractor notice in accordance with subclause
52.2.
In the event of a dispute over payment for variations if the contractor
or engineer fails to comply with the requirements to notify the other under
sub-clause 52.2, it is highly likely that an arbitrator will consider clauses 5 2
and 53 together in order to make sense of the contract.
The 1 9 9 9 FIDIC Red Book contains completely new provisions:
Sub-clause 12.3 provides for the rates or prices applicable to the measured
work (including variations) to be the rates stated in the contract. However,
a rate or price for an item of work may be amended if:
'(a) (i) the measured quantity of the item is changed by more than 10% from the
quantity in the Bill of Quantities or other Schedule,
(ii) this change in quantity multiplied by such specified rate for this item exceeds
0.01% of the Accepted Contract Amount,
(iii) this change in quantity directly changes the Cost per unit quantity of this item
by more than 1%, and
(iv) this item is not specified in the Contract as a "fixed rate item";
or
(b) (i) the work is instructed under Clause 13 [Variations and Adjustments],
(ii) no rate or price is specified in the Contract for this item, and
(iii) no specified rate or price is appropriate because the item of work is not
of similar character, or is not executed under similar conditions as any item in
the Contract.'
The requirement to give notice and particulars etc. is given in sub-clause
20.1 (see 1.7 and 4.9, supra).
In some circumstances, there may be arguments as to whether the
contractual provisions permit the valuation of disruptive, or time-related,
elements as part of the variation. The proviso to clause 13.5 of JCT80
is unclear and unhelpful in this regard. It would appear that the rules gov-
erning the valuation of variations are sufficiently flexible to permit a very
wide interpretation of them so as to enable the quantity surveyor to adopt
a sensible approach according to the circumstances. Contractors should
bear in mind that it is in their interests to include as much as possible in
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the valuation of variations so that an element of profit can be recovered on

the extra costs. This is particularly important where the provisions of the
contract limit reimbursement to cost, or expense, if the additional payment
is claimed under any other provisions.
5.12 Dayworks
Payment for work on daywork is usually reserved for circumstances where

there is no other reasonable means of valuing the work to be done. Some
contracts provide for the contractor to give advanced notice of any work
to be done on daywork. There are usually strict time limits for submission
of daywork vouchers. It is important to follow the contractual provisions so
that the time and materials can be properly recorded and agreed. Con-
temporary notes setting out the reasons for recording the work on daywork
may be helpful. It is important to include all incidentals, such as small tools
and transport. Signatures verifying the times and materials used may not
signify that payment will be made in the daywork account. However, proper
records of such work can be of assistance as supporting documents for
other methods of payment.
5.13 Fluctuations
Most fluctuating price contracts use a recognised formula which is applied

to the value of work done each month. The base date is predetermined at
tender stage and fluctuations are calculated by reference to the published
indices each month and the base index. Some contracts contain a 'cut-off
date' in the event of delayed completion. However, not all of the effects of
price increases may be recovered under the fluctuations clause. If there is
a qualifying recoverable delay, any shortfall in recovery which can be sub-
stantiated may be included in the contractor's claim for additional payment
under the appropriate contract provisions.
In the event of delay during a fixed price contract, work is progressively
carried out at later times than allowed for in the tender. The estimator ought
to have allowed for the anticipated increases in cost during the contract
period in accordance with the tender programme. By comparing actual
progress and the value (or cost) of work done each month with anticipated
progress and value (or cost) of work in accordance with the programme,
it is possible to determine the probable effects of inflation as a result of
the delay. The actual monthly value and relevant monthly index can be
used to compare the planned monthly value and index as shown in Figure
5.25.
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TIME
PLANNED VALUE (OR COST)
ACTUAL VALUE (OR COST)
INFLATION =
) - I (p~vgy )
AMV = ACTUAL MONTHLY VALUE (OR COST) -
NOTE: IF MONTHLY VALUE
MI = INDEX FOR RELEVANT MONTH IS USED. RESULT MAY HAVE
PMV = PLANNED MONTHLY VALUE (OR COST) TO BE ADJUSTED FOR PROFIT
Bl = BASE INDEX (AT TENDER) ELEMENT
Figure 5.25 Calculation of fluctuations using published indices
It should be borne in mind that this method may not be accepted as a

means of measuring the additional cost due to the delay. However, pro-
vided that suitable adjustments can be made for materials and subcontracts
let at fixed prices (which are not changed during the contract), materials on
site and other factors which may be applicable, this method is generally
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recognised as a reasonable means of calculating reimbursement. Other

evidence, such as comparison of actual invoices and wage rates paid at
different times may be required.
5.1 4 Quantum Meruit
A well-drafted variation clause will enable the employer to make substan-

tial changes to the works without invalidating the original contract. Never-
theless, variation clauses do not enable the employer to vary the works
without limit. In Wegan Construction Company Pty. Ltd. v. Wodonga
Sewerage Authority (see Chapter 1,supra), substantial changes were made
and the contractor claimed payment on a quantum meruit basis. The varia-
tion clause applicable to this case, in part, is almost identical to the pre-
1999 FIDIC conditions of contract, and is sufficiently similar to many other
forms of contract to justify a detailed analysis of the case.
Clause 40.1 of the contract contained the following terms:
'Variations Permitted. At any time prior to practical completion the engineer

may order the contractor to:
(a) increase, decrease or omit any portion of the work under the contract;
(b) change the character or quality of any material, equipment or work;
(c) change the levels, lines, positions or dimensions of any part of the work under
contract;
(d) execute additional work;
(e) vary the programme or the order of the work under the contra*
(f) execute any part of work under the contract outside normal or agreed upon
working hours;
and the contractor shall carry out such variation, and be bound by the same con-
ditions, so far as applicable, as if the variation was part of the work under the
contract originally included therein.
The extent of all such variations shall not, without the consent of the contrac-
tor, be such as to increase the moneys otherwise payable under the contract to
the contractor by more than a sum which is the percentage stated in the annex-
ure A of the contract sum, or if not stated, by a reasonable amount.
No variation shall vitiate or invalidate the contract, but the value of all variations
shall be taken into account and the moneys otherwise payable under the con-
tract shall be adjusted as provided under cl. 40.4.'
It appears, from the judgement, that no percentage had been inserted in
annexure A, and the contract was therefore construed on the basis of the
term 'by a reasonable amount'.
In the new plans, excavation was increased by twenty per cent; sewer
length was increased from 840 metres to 1181 metres; manholes from
nineteen to twenty-seven, requiring a ninety per cent increase in concrete;
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house connections had increased from forty-seven to ninety-one and the

new design included one hundred and sixty metres of excavation below four
metres deep which was not shown on the original plans. The contract price
was $30867.40 and the revised contract price was $43 200.
The contractor argued that the change in design was not a variation per-
mitted by the contract and sought to be released from the contract rates
and for payment to be on a quantum meruit basis.
Held: In the circumstances the amended plans did not constitute a
variation permitted by the original contract.
In practice, where there are very wide variation provisions, and the rules
for valuing variations allow for departure from the contract rates, it may be
difficultto argue successfully that the works should be valued on a quantum
meruit basis. There would have to be some compelling reasons which
would have made it impossible for the contractor to continue on the basis
of the original contract. A substantial increase in the value of work may
not, on its own, be sufficient reason to escape from the contract rates.
5.15 Finance Charges: Remedies for Late Payment
In nearly all cases, contractors will allow something in their tender for
finance charges on the working capital required to carry out the works.
There may not be a positive cash flow until final retention is released. What-
ever the contractor's anticipated cash flow, as a general rule, if the value
of work increases, the additional financing ought to be recovered in the
rates for variations (assuming that the finance costs are allocated through-
out the rates for measured work).
However, it is often the case that interim certificates do not reflect the
true value of the original contract work including variations. In such cir-
cumstances the contractor will be incurring additional finance charges on
the under-certified sums. Whilst significant changes have taken place in
recent years to compensate contractors for the loss incurred as a result of
increased finance charges in cases of default by employers, the commer-
cial reality of the high cost, and potential loss, has not been recognised fully
in many modern contracts or in the general law. A claim for finance charges
on late, or under-certification, will have to be founded on a contractual
provision, or for breach of contract.
In the case of Morgan Grenfell Ltd v. Sunderland Borough Council
and Seven Seas Dredging Ltd (1991) 51 BLR 85, it was held that clause
60(6) of the ICE fifth edition enabled the contractor to claim compound
interest on amounts which were included in a statement under clause 60(1)
if the engineer failed to certify and it was subsequently found that the
amounts ought to have been certified.
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However, in Secretary of State for Transport v. Birse-Farr Joint

Venture (1993) 26 BLR 36, Mr Justice Hobhouse said:
'The opinion which the engineer is required to form and express in his certifi-
cates is a contractual opinion. It must be a bona fide opinion arrived at in accor-
dance with the proper discharge of his professional functions under the contract.
In sub-clause (3) there is an express reference to "the amount which in his
opinion is finally due under contract." It is implicit in subclause (2) that the sum
certified is that which, in his opinion, he considered to be due under the con-
tract as an interim payment under that month. If it should be the case that the
engineer's opinion is based on a wrong view of the contract then it can be said
that he has failed to issue a certificate in accordance with the provisions of the
contract. This was the case in the Farr case [Farr v. Ministry of Transport
[I96011 WLR 9561. Therefore, leaving on one side all question of bad faith or
improper motive - and none is suggested in the present case - a contractor who
is asserting that there has been a failure to certify must demonstrate some
misapplication or misunderstanding of the contract by the engineer. For example,
it certainly does not suffice that the contractor should merely point to a later cer-
tification by the engineer of a sum which had been earlier claimed but not then
certified. '
Where the engineer has certified and the employer fails to pay on time,
clause 60(7)of the ICE sixth and seventh editions, clause 60.10 of the 1987
FIDIC fourth edition and clause 14.8 of the 1999 FIDIC contracts expressly
provide for finance charges to be paid.
The case of Borough of Kingston-upon-Thames v. Amec Civil Engi-
neering [I9931 35 ConLR 39 almost got to grips with the issue as to
whether, or not, finance charges could be considered as part of the cost.
Amec's claim for finance charges had been rejected on the same grounds
as those given in Secretary of State for Transport v. Birse-Farr Joint
Venture. Amec argued alternatively that finance charges were part of the
cost. His Honour Judge Richard Havey QC stated:
'Two questions arise: first, whether interest on any balance found due to the con-
tractor, calculated from the date when that balance could or ought to have been
certified, is recoverable as a financing charge representing a cost, or part of a
cost, recoverable under a relevant clause of the contract; and, second, whether
any interest claimed as a financing charge representing a cost, or part of a cost,
recoverable under a relevant clause of the contract continues (whether com-
pounded or not) beyond the date when certification or payment could or ought
to have been made.
The first question covers the whole of the amount of interest claimed. My answer
to that question is that such interest is not recoverable, since no clause of the
contract provides for its recovery. The second question seems to me to be aca-
demic, since the amount of such interest, if any, is indeterminate having regard
to the terms of the Commercial Settlement. Moreover, interest on that basis is
not claimed in the points of claim. Mr Stimpson [for the plaintiffs]submitted that
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there was enough material before the arbitrator for him to award an appropri-
ate sum under this head, and that, if necessary, the case should be remitted to
him for determination of that sum. I reject that argument. Such determination
would involve re-opening the Commercial Settlement.'
If there had been no commercial settlement and the argument had been
included in the points of claim, perhaps a definitive answer would have been
forthcoming. However, this case did not appear to deal with the finance
charges on the 'prime cost' from the date when the cost was incurred until
the date when it ought to have been certified. This is part of the contrac-
tor's 'secondary cost' whether, or not, the engineer certifies promptly (see
Rees and Kirby Ltd v. Swansea City Council (1985), infra).
In any event, the form of contract in this case was the ICE fifth edition
where the definition of 'cost' is not so widely defined as in the sixth and
seventh edition and the FIDIC contracts.
In the case of Amec Building Ltd v. Cadmus Investments Co Ltd [I9961
51 ConLR 105, the court held that under a JCT contract it was proper for
simple interest to be awarded from the date of under-certification.
Where delay and disruption occur, the interest on the cost, or on the
loss and/or expense, may be claimed as part of the cost or expense. This
was held to be the case in Rees and Kirby Ltd v. Swansea City Council
(1985) 30 BLR 1.
A diagram illustrating interest or finance charges from the date of
expending the 'primary cost' until payment is received in given in Figure
5.26. The first element [Fl] represents the finance charges occurring from
the date of incurring the cost until the date of certification (the sums
approved in Rees and Kirby Ltd v. Swansea City Council (1985)).The
second element [F2] represents the finance charges due to late payment of
certified sums under a provision in the contract (such as ICE or FIDIC) or
for breach of contract (infra).
The Late Payment of Commercial Debt (Interest) A d of 1998 may be
of assistance with respect to late payment of certificates in the UK. Many
other jurisdictions have provisions for payment of interest on late payment.
Whilst it is not usually essential to include a statement showing the
amount of interest on delay and disruption claims, it is a practice which
should be encouraged, if only to prompt the architect or engineer to deal
with the matters in the earliest possible interim certificate.
Remedies for late payment

Many contractors suffer from late payment of not just one certificate but of
several or even all certificates. In international contracting and in domestic
contracts overseas, it is not uncommon to experience several unpaid
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Finance charges as part of direct costs (loss andlor expense) Payment received
v
El Finance charges for breach of contract
(payment provisions)
Certificate
Payment due
v
1st Application 2nd Application 3rd Application
Figure 5.26 Finance charges
certificates at one time involving several million pounds. Apart from the
extreme course of action to terminate the contractor's employment (which
contractors are usually reluctant to do), what other redress is available to
contractors in these circumstances?
In most countries, there are no legal rights to suspend work or slow down
the progress of work. FIDIC, in its 1987 fourth edition of the Red Book
and in its 1999 Red, Yellow and Silver Books, has introduced provisions
to enable the contractor to suspend work or slow down his progress (sub-
clause 69.4 of the 1987 fourth edition of the Red Book and sub-clause
16.1 of the 1999 Red, Yellow and Silver Books). Subject to the contrac-
tor giving twenty-eight days' (1987 Red Book) or twenty-one days' (1999
contracts) notice of his intention to suspend or slow down the progress of
the works, if the employer fails to pay by the expiry of the notice period,
the contractor may then suspend or slow down the progress of the work.
Following such suspension or slowing down, the contractor is entitled to:
an extension of time;
additional costs;
and in the case of the 1999 contracts:
a reasonable profit.
These rights and remedies are without prejudice to any other rights (finance
charges and/or termination).
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The 1999 FIDIC Green Book contains similar but much simplified
provisions (sub-clauses 7.3, 10.4 and 12.2).
5.16 Cost of Preparing the Claim
In the vast majority of cases, the cost of preparing the claim is not a recov-
erable cost. However, there are circumstances in which the cost of prepar-
ing claims may be recovered:
If each claim is prepared by the contractor's staff, as and when they arise
during the contract, the salaries and other costs of the staff will usually
be included in the site or head office overheads and may therefore be
included in the general claim for prolongation.
If, in spite of all requests for an assessment of the amount of the claim
(and provided that the contractor has given all particulars in accordance
with the contract) no assessment is made within a reasonable time (and
particularly if it has not been made within the period of final measure-
ment or other specified contractual time frame), the contractor would be
justified in preparing his own claim and may be entitled to reimburse-
ment - see James Longley & Co Ltd v. South West Regional Health
Authority (1985) 25 BLR 56 at page 57: 'The costs of preparing a final
account may be recovered as damages in a suitable cases, e.g. for breach
of an obligation on the part of an employer to provide a final account.
. . .' This may include the contractor's own managerial time (provided
that it is not included in overheads): Tate & Lyle Food Distribution Ltd
and Another v. Greater London Council (supra).
Where certain work is done in connection with preparing a case for arbi-
tration: James Longley & Co Ltd v. South West Regional Health
Authority (supra).The cost of preparing unnecessary evidence may not
be allowed.
5.17 Assessment and Evaluation
Assessment and evaluation of delay and disruption claims will depend on

the pricing and accounting policy of the contractor. The following should
be established:
The tender
How are the overheads and profit distributed in the tender? Loading rates
or preliminaries may merit adjustments to any sums calculated using a
formula.
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Are all of the site overheads (preliminaries) priced in the preliminaries

sections of the bills of quantities? If part, or all, of the preliminaries are
included in the rates for measured work, some analysis may have to be
done to ascertain the sums to be used as a basis of calculating time-related
elements (if it is appropriate to use the contract rates for variation delays).
An adjustment may have to be made to account for additional preliminar-
ies recovered in the rates for variations (whilst there are circumstances
where no adjustment should be made for overheads and profit recovered
in variations, an adjustment will usually be justified for any preliminaries
recovered in variations).
Accounting practice
Are head office overheads charged to the project? If so, on what basis?
Time records? Percentage allocation? Ad hoc? Unusually high allocation of
costs may have to be justified.
Are finance charges included in general overheads? If so there may be
duplication with separate claims for finance charges. This may be overcome
by deducting interest and finance charges from the general overheads and
making a separate assessment of the finance costs on the average working
capital required for the delayed project (excluding claims).
Having established the above, the assessment and evaluation of the claim
can proceed without fear of unnecessary duplication or omission.
It is important that all facts, evidence and data upon which any calcula-
tions are based are collected and bound in an annotated appendix to the
claim. In the narrative of the claim, the author should have set out the basis
of the claim, giving reasons for any particular method which has been
adopted (such as an explanation as to why a particular formula has been
used to calculate overheads and profit and any adjustments which have been
made).
It is sometimes helpful, and persuasive, to give financial information
in tabular and graphical form. This will facilitate a better understanding of
the nature of the contractor's claim and may assist in obtaining an early
settlement.
Each head of claim should state the source documents used (referring to
the appropriate appendix) and any assumptions made for the purposes of
calculation or assessment.
5.18 Summary on Presentation of Claims for

Additional Payment
Similar guidelines to those given for extensions of time are applicable to

claims for additional payment. In spite of the fact that contractors may not
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be reimbursed for preparing a claim, it is usually in the contractor's inter-

est to do so at the earliest opportunity. The temptation to wait until exten-
sions of time are made before submitting a claim should be resisted unless
there is real possibility that this will sour relationships beyond repair. In any
event a claim should be prepared (even if not submitted) so that the mag-
nitude of the loss or additional cost can be made available to management.
The sooner the opposition are made aware of the amounts which are likely
to be claimed, the better the chances that funds will be put aside to
meet them.
In addition to the details and particulars mentioned with regard to exten-
sions of time (supra), the following may be necessary:
details of the effects of any delay or disruption on all activities in
parallel and subsequent to the circumstances giving rise to the
claim;
an introduction to the claim giving the contractual provisions under which
the claim is being made;
a summary of notices and particulars given during the contract;
diagrammatic illustrations where appropriate;
references to recognised authorities and case law relied upon;
additional, or alternative claims under the general law (if applicable).
a statement setting out the amount of the claim.
Presentation will depend on the type of claim. If several individual claims
are made during the course of the project, these need not necessarily be
couched in legal language which is sometimes seen in formal submissions.
5.19 Formal Claim Submission
If individual claims are dealt with and settled promptly during the contract,
a formal submission setting out the contractual basis and detailed analysis
of the contractor's rights and entitlements will not be necessary. However,
if settlement is not reached on these claims, the contractor is faced
with preparing a document which, it is hoped, will lead to an amicable
settlement at the earliest possible time. This type of claim submission may
take a form almost approaching pleadings for arbitration. Some contrac-
tors spend considerable time and effort in negotiations which fail because
of the lack of a sound, comprehensive and persuasive submission which
sets out the contractor's claim and the basis upon which the claim is made.
The sooner a formal submission is made, the earlier a settlement can be
reached or proceedings can commence. A formal claim submission will
include:
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Introduction: contract particulars

Names of the parties; description of the works; details of tender and accep-
tance; the form of contract and any amendments thereto; the contract sum;
dates for commencement and completion; phased completion (if applica-
ble); liquidated damages for delay; the programme.
Summary of facts
Date of commencement and practical completion; dates of sectional
or partial completion (if applicable); summary of applications for exten-
sions of time; extensions of time awarded; summary of claims submitted;
final account and claims assessed (if any); amount of latest certificate
and retention; payments received; liquidated damages deducted (if
applicable).
Basis of claim
Contract provisions relied upon; common law provisions; contractual analy-
sis and explanation of the basis of the claim.
Details of claim
Full details of every matter which is the subject of the claim. Each separate
issue should be carefully set out in a logical format. Key dates, events,
causes and effects, references to relevant documents and the like should
form the basis of a narrative which fully describes the history of the project
and the effects on progress, cost and completion. It is important to distin-
guish between the causes and effects of delay (and/or disruption), exten-
sions of time and the financial effects of delay and/or disruption. Wherever
possible, diagrams, programmes, tables and the like should be included in
the narrative (or in an appendix). The extensive use of schedules can be
invaluable.
Evaluation of claim
Each head of claim should be calculated, step by step, with explanations
and reasons for the methods adopted. Supporting source documents (from
which financial data has been used in the evaluation of the claim) should
be given in an appendix, or listed, so that the recipient may examine such
documents at the contractor's office when considering the claim.
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Statement of claim
A brief statement setting out the claimant's alleged entitlements and relief
sought, such as extensions of time; sums claimed; repayment of liquidated
and ascertained damages (if applicable).
Appendices
Copies of all documents referred to in the claim; programmes; diagrams;
schedules; financial data.
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Subcontractors
6.1 Subcontracting Generally
An increasing number of contractors do less work by direct labour and they

rely to a great extent on subcontractors for the execution of the work. It is
perhaps for this reason (at least in part) that contractors are sometimes
unable to provide adequate particulars and substantiation in support of their
claims.
At tender stage, contractors may rely on subcontractors' quotations for
large sections of the works. The tender may be based on the lowest of all
the subcontractors' quotations. Once the contract has been awarded, the
contractor will then seek to get better quotations (by negotiation with the
original tendering subcontractors or by looking for alternative quotations).
In many cases, the contractor will not award the various subcontracts
until it is necessary to do so. For example, the subcontract for painting may
not be awarded until a few weeks before the painting is due to commence.
The contractor runs the risk of price increases in these circumstances. If
there has been delay to the project, prior to placing the order for painting,
it will be difficult for the contractor to establish a claim for an increase in
the cost of the work. Is the increase in the subcontract price due to the
delay to the project, or is the market for painting buoyant at the time of
subcontracting (whereas it may have been depressed at the time of tender)?
If the painting had been ordered at tender stage, the subcontractor may
well have had a claim for increased costs due to executing the work at a
later date, but this would have been determined by contractual provisions
based on conditions at tender stage.
This practice makes it difficult for the contractor to justify a claim for
additional payment. The subcontractor will have no interest in providing
particulars (because the extra cost is in his price). The employer will not
expect to reimburse the contractor for the extra cost caused by a buoyant
market. Nevertheless, the contractor may have grounds for a claim.
If all subcontracts were placed at tender stage, based on the same pro-
gramme and other contractual provisions, the contractor ought to be able
to deal with subcontractors' claims as if they were his own (subject to the
practical difficulty of getting subcontractors to give the same notices and
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Subcontractors 187
particulars to the contractor as the contractor is required to give under the

principal contract). In practice, subcontracts are placed progressively during
the course of the project. If delays occur throughout the project, as the
magnitude of the cumulative delay increases, various subcontracts will be
placed on different programmes and base costs. Very often subcontracts
will be placed when the contractor's current programme is out of date
(sometimes the programme may be obsolete to the extent that the pro-
gramme shows completion of the subcontract works before the date of
placing the order for the subcontract). These problems are not imaginary.
They occur regularly in real life and are a constant source of contractual
disputes.
It is often a problem to establish the subcontractor's obligations regard-
ing progress and completion of the subcontract works when the order, or
subcontract, states that the subcontract works shall be carried out 'in accor-
dance with the contractor's programme'. Which programme? Was it the
programme which was in existence at the time of making the subcontract
(even if the programme shows the subcontract works to be complete before
the time of the subcontract)? Is it to be the next revision of the programme?
Is it to be any future revision of the programme? What is the situation if
the contractor never produces a revised programme?
The dangers which may arise from the above practices are:
The period for completion of the subcontract works may be impossible
to determine from the subcontract documents, in which case the sub-
contractor may have an obligation to complete within a reasonable time.
A reasonable time for the subcontractor may not be within the time
allowed for the principal contract.
The subcontractor may take on board the obligation to execute the works
in accordance with any programme of the contractor.
Even more uncertain and onerous provisions (from the subcontractor's
point of view) arise when the terms of the subcontract require the subcon-
tractor to proceed with the subcontract works in accordance with the con-
tractor's reasonable requirements. In the case of Martin Grant & Co Ltd
v. Sir Lindsay Parkinson & Co Ltd (1984)2 9 BLR 31, the subcontract
contained the following terms;
'2. The Sub-Contractor will provide all materials labour plant scaffolding in addi-
tion to that provided by the Contractor for his own requirements haulage
and temporary works and d o and perform all the obligations and agree-
ments imposed upon or undertaken by the Contractor under the Prin-
cipal Contract in connection with the said works to the satisfaction of the
Contractor and of the Architect or Engineer under the Principal Contract
(hereinafter called 'the Architect') at such time or times and in such
manner as the Contractor shall direct or require and observe and perform
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the terms and conditions of the Principal Contract so far as the same are
applicable to the subject matter of this contract as fully as if the same had
been herein set forth at length and as if he were the Contractor under the
Principal Contract.
3. The Sub-contractor shall proceed with the said works expeditiously and
punctually to the requirements of the Contractor and so as not to hinder
hamper or delay the work or the portions of the work at such times as
the Contractor shall require having reference to the progress or condi-
tions of the Main Works and shall complete the whole of the said works
to the satisfaction of the Contractor and of the Architect and in accor-
dance with the requirements of the local and other authorities.' [Emphasis
added]
The works under the principal contract were delayed and the subcontrac-
tor was retained on site for a considerably longer period dictated by the
progress of the principal contract. The subcontractor contended that there
was an implied term that the contractor would make sufficient work avail-
able to enable the subcontractor to maintain reasonable and economic
progress and that the contractor would not hinder or prevent the subcon-
tractor in the execution of the subcontract works. The subcontractor's claim
failed and he was unable to recover the extra costs arising as a result of
working on site for a much longer period.
Some of these problems can be avoided by using one of the standard
forms of contract which are tailor-made for use with the appropriate prin-
cipal contract. Some contractors have their own 'look-alike' forms of con-
tract which resemble the standard forms of subcontract but which contain
onerous provisions. Subcontractors should not assume that onerous provi-
sions can be defeated by implied terms.
6.2 Nominated Subcontractors
Nominated subcontractors have been used in building contracts for over

one hundred years. They appeared in the RIBA Model Form of Contract
at the beginning of the last century. They have a useful and important func-
tion where the employer has a genuine requirement to select a subcon-
tractor to execute specialist work. However, the provisions and procedures
surrounding their selection and use have become unnecessarily complicated.
PC Sums (Prime Cost Sums) in contracts are intended for work to be done
by nominated subcontractors or for materials or goods to be supplied by
nominated suppliers.
In general, it is better to limit nominated subcontractors to a minimum,
and then only for work which cannot reasonably be included in the con-
tractor's own scope of work. Some of the reasons which may justify the
use of nominated subcontractors are:
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Subcontractors 189
where the subcontractor is to undertake design responsibility and the fea-

tures of the subcontractor's design must be co-ordinated with the prin-
cipal design of the works;
where it is essential to appoint a nominated subcontractor before
appointment of the contractor for the principal contract (for example,
there may be long delivery periods for plant and equipment to be pro-
vided by the subcontractor);
where the subcontract works are an extension of work done previously
by a particular subcontractor and the same equipment and standards are
required to be used in the new works;
where the subcontract works are the main requirements of the employer
and the building, or civil works, are secondary (for example, in process
plants);
where the employer, or its designers, have a particular preference for a
subcontractor based on previous performance and standard of work.
Having regard to the increasing amount of sophisticated mechanical and

electrical installations, including lifts, escalators, heating and ventilating
and air conditioning (HVAC), building automation systems (BAS), security
systems (such as closed circuit television - CCTV) and a host of new addi-
tions to the field of building services, it is not surprising to find these in the
form of PC sums which, in total, may make up more than fifty per cent of
the total building cost. In these circumstances, if PC sums are used prop-
erly, it may be appropriate to nominate subcontractors to do this type of
work.
In this context, 'used properly' means that, for a lump sum contract
(such as JCT80),the scope of the works to be done by nominated sub-
contractors should be fully defined at tender stage (of the principal con-
tract). That is to say, the design of the subcontract works should be complete
in all of the essential details so that the tendering contractors can appreci-
ate the magnitude, complexity, sequence of other work and any other
limitations on their own methods and sequence of working to ensure
completion of the principal works by the contract completion date. It is
wholly insufficient to describe the works intended to be covered by a PC
sum in one or two lines in the bills of quantities, or specification, giving an
approximate sum as a guide to the contractor for pricing his attendance
and profit.
Quite apart from being contemplated on contractual grounds, it is sound
commonsense to completely develop the design of all of the specialist sub-
contract work alongside the design of the building structure and building
envelope. If this is not done, how can the design be co-ordinated to ensure
that all of the service pipes, ducts, cable trays and equipment be built
into the spaces allocated for them? It is this lack of co-ordination which
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leads to conflicts in the services during construction on site and in some

cases renders it impossible to incorporate them in the space allowed. This
may require late variations to re-route some of the services in unsightly bulk-
heads and lowered ceilings. In extreme cases, valuable floor space may have
to be sacrificed or, if it is not too late, storey heights may have to be
increased. The 'knock-on effect' may include redesign of curtain walls and
substantial changes to lift cables, controls and machinery. The cost of all
vertical components and finishes will increase.
These direct costs may be a small proportion of the costs of delay and
disruption and may cause substantial loss of revenue for the employer. Con-
sultants who embark upon a design up to tender stage without taking
account of these potential problems may find themselves being sued by the
employer who has not had his building on time and has paid considerable
additional sums of money to the contractor for the privilege.
These problems arise when the contract contains PC sums which are
no better than provisional sums in disguise. If, for example, the design of
the kitchen equipment is not complete, or not capable of being adequately
defined, at tender stage, a provisional sum should be used in preference to
a PC sum. If PC sums are used for work which is really provisional, the
design team may be misleading the contractor and the problems which arise
may be costly to resolve. The work which is eventually ordered under a PC
sum may be considerably more complex than could reasonably be con-
templated at tender stage. Is the subcontract work (as ordered) the same as
the original intention, or is it a variation? A variation to the principal work
may not be a variation to the subcontract work (because the 'baseline' for
design may not be the same for the principal contract and the subcontract).
If a detail is issued during the progress of the subcontract work, the con-
tractor may be justified in claiming an extension of time and additional
payment (on the grounds that it is a variation to the original design),
whereas the subcontractor was aware of the new detail and had allowed
for it in its price and programme.
Many of these problems can be avoided by careful planning and co-
ordination of design by the employer's professional advisers, so that the
contractor is left in no doubt, at tender stage, what is contemplated in the
work which will be done by nominated subcontractors.
6.3 Contractor's Rights to Object to Nominees
Most forms of contract contain provisions for the contractor to object to

any nominee on limited grounds (clause 35.4.1 of JCT80 and clauses
59A(1)and 59(1)of the ICE sixth and seventh editions respectively). JCT80
contains detailed provisions and alternative procedures which may apply.
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Subcontractors 19 1
However, in general, the contractor will have a right to object to a nomi-

nated subcontractor for the following reasons:
if the subcontractor will not enter into a subcontract on terms contain-
ing provisions which indemnify the contractor against the same liabilities
as those for which the contractor is liable to indemnify the employer and
which indemnify the contractor against any claims arising out of default
or negligence of the subcontractor;
if the subcontractor will not agree to complete the subcontract works
in accordance with the reasonable directions of the contractor and to
enable the contractor to discharge its obligations under the principal
contract;
if the subcontractor will not agree to complete the subcontract works
within the period specified in the proposed subcontract;
if there are reasonable grounds for the contractor to believe that the sub-
contractor is unsuitable or is financially unsound.
The first three reasons are usually catered for in standard forms of sub-
contract designed to operate alongside the appropriate standard form of
principal contract. Any attempt by the contractor to impose more onerous
provisions will usually be thwarted by predetermined tender procedures
which are known by the contractor (such as those contained in JCT80 and
the standard form of tender - NSC/l). However, if the principal contract
contains amendments and more onerous provisions than the standard form
of contract, the contractor would be within his rights to insist on similar
provisions in the subcontract, so far as they were applicable to the sub-
contract works.
The third reason may arise if nomination procedures are not followed,
or if the nomination is made during a delayed project. If there has been no
delay and the period for completion contemplated by the subcontractor is
inconsistent with the contractor's original programme, the contractor will
have a prima facie case to object unless the nominee agrees to comply
with the programme. If delay has occurred, various problems may arise:
If the contractor is in delay, but no extension is justified, the contractor
may reprogramme the remaining work to allow a shorter period for work
to be done by a subcontractor to be nominated at a future date. For example
the contractor may cause delay of two weeks to activity l3-E (see Figure
6.1). The contractor's revised programme may show a reduction in the
period allowed for activity J-K which is for work to be done by a nomi-
nated subcontractor (see Figure 6.2) so that the completion date is pre-
served. Activities A-B, E3-E, E-F, F-J and J-K are on the critical path but
none of the other activities are critical.
Is it reasonable for the contractor to object if the nominee can complete
within the original period allowed, but refuses to agree to a shorter period?
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completion date
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Can this be overcome by making an extension of time so that the subcon-

tractor can be accommodated, thereby enabling the contractor to e x a p e
liability for liquidated damages for his own delay? On the strict wording of
clause 25.3.1 of JCTgO, completion of the works must be likely to be
delayed by a cause which is a relevant event and as the real cause of delay
was the contractor's own default, it may not be possible to make an exten-
sion. Is time at large? Is the contractor liable for unliquidated damages? Do
the contractual provisions need revision to deal with this situation?
Delays may occur for which extensions of time may be due, but for which
no extension has been made. There may be a dispute as to the contrac-
tor's entitlement to an extension. If a subsequent nominated subcontractor
cannot complete its work by the current completion date, is the contractor
justified in objecting to the nominee (even if some of the previous delay was
caused by the contractor's own default)? Should an extension be made
to accommodate the nominated subcontractor? What is the situation if it
should subsequently be found that no extensions of time were justified for
delays prior to the date of the nomination? Is the nomination made late
(even if the nominee was able and willing to commence work on the day
when the contractor would be ready for him to commence work)?
The problems which arise when realistic dates for work to be done by
nominated subcontractors are out of synchronisation with the contract
completion dates and/or the contractor's programme are common. A com-
monsense solution may be the only way ahead. Some of these problems
have been considered in the courts. The House of Lords heard an appeal
in the case of Percy Bilton Ltd v. The Greater London Council (1982)
2 0 BLR 1 (HL). A nominated subcontractor withdrew his labour from site
on 2 8 July 1978 and went into liquidation. The subcontractor was behind
programme at the time of his withdrawal with some forty weeks of the
subcontract period remaining. On 31 July 1978, Bilton (the contractor)
terminated the subcontractor's employment. The (extended) contract
completion date at this time was 9 March 1979. Some of the defaulting
subcontractor's work was done by a temporary subcontractor (Home Coun-
ties Heating & Plumbing Limited) under architect's instructions and on 1 4
September, Bilton was instructed to enter into a nominated subcontract
with a new subcontractor (Crown House Engineering Limited). The new
subcontractor withdrew his tender on 16 October and on 31 October
Bilton was instructed to enter into a nominated subcontract with Home
Counties. Negotiations between Bil ton and Home Counties were concluded
on 22 December 1978 on the basis that Home Counties would commence
work on 2 2 January 1979 and that the period for completion of the sub-
contract works would be approximately fifty-three weeks (complete about
2 3 January 1980). Various extensions of time were granted, but the archi-
tect only granted an extension of fourteen weeks (to 14 June 1979) under
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Subcontractors 195
clause 23(f) of JCT63 for the delay caused by renomination (see Figure
6.3). Further delays occurred; the contractor completed late and the GLC
deducted liquidated damages. The contractor contended that time was at
large and that liquidated damages could not be deducted. It was held that
the delay arising out of the renomination fell into two parts. The first part
was due to the original subcontractor's default and the second part was due
to the unreasonable time taken to engage Home Counties to complete
the work. No extension of time was justified for the first part of the delay
(however, it appears that the extension of time granted by the architect
included the first part of the delay), but the architect was empowered to
grant an extension of time for the second part of the delay. As the first
part of the delay was not due to the employer's default, time was not at
large and liquidated damages could be deducted.
An important aspect of this case was reported in the Court of Appeal
17 BLR 1 (at page 18):
'A quite separate argument by Mr Garland is what is described as his "overshoot"
submission; that is to say that, at the time of the application for the re-nomina-
tion, the new subcontractor's date for completion was later than the plaintiff's
date for completion and that, since this would make it impossible for the plain-
tiffs both to accept the new subcontractor and to comply with the provision in
their own contract as to time for completion, therefore the time provision must
go completely, time will be at large and the right to liquidated damages will
disappear.
I do not accept this argument. The contractor, faced with a subcontract with
such a provision as to completion, would be entitled to refuse to accept the s u b
contractor under clause 27 [of JCT631; or what the subcontractor could do would
be to say that he would not agree to accept the subcontract unless at the same
time the employer would agree to an extension of time for the completion of
the main contract.'
The above argument found support in the House of Lords, 20 BLR 1 (at
page 15).
It should be noted that this case dealt with renomination which was not
due to the employer's default. If these circumstances arose with respect to
the original nomination of a subcontractor to execute the work covered by
a PC sum, the result would probably be very different. The contractor may
have a claim for breach of contract and/or a claim arising out of a late
instruction pursuant to provisions in the contract.
In a similar case of Fairclough Building Ltd v. Rhuddlan Borough
Council (1985) 3 0 BLR 26, a nominated subcontractor ceased work in
September 1977 and the subcontractor's employment was terminated. The
subcontractor was eight weeks late at the time of termination. The stan-
dard conditions of JCT63 had been amended to exclude delay by a nomi-
nated subcontractor (unless such delay was due to a reason for which the
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GRANTED FOR DELAY
'a' UNDER CI.23(I) v' CROWN HOUSE WITHDRAW TENDER
'a 1' = delay d u e t e default o f

erlglnol subcontroclor
v MOUE COUNTIES NOUINATEO
'02' = dslay I n r e n e m l n a t l o n
v' NEGOTIATIONS CONCLUOEO WITH MOUE COUNTIES
3* ESTIMATED COUPLETION OF ORIGINAL SUBCONTRACT

1
4 OCO = ORIGItIAL COMPLETlON OATE
ECDl = EXTENDED COMPLETION DATE AT 1lUE OF
(I TERMINATING ORIGINAL SUOCONTRACT
ECO2 = EXTCttDEO COUPLETION DATE DUE TO
(I RENOUINATION OF HOUE COUNTIES
FECD r FINAL COUPLETION OATE
(I FOR SUBSEPUENT O E U Y S
Figure 6.3 Percy Bilton v. Greater London Council
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Subcontractors 197
contractor could obtain an extension). The original date for completion of

the principal contract was 2 May 1977 and an extension of time for strikes
occurring prior to the subcontractor's withdrawal from site was granted to
10 May 1978. The architect did not issue an instruction to renominate a
new subcontractor until 24 February 1978. The contractor objected to the
renomination on the grounds that it did not include making good defects
in the original subcontract work and that an extension of time would be
required to cover the time required by the new subcontractor (twenty-seven
weeks from acceptance of tender) which would overrun the date for com-
pletion of the main contract (see Figure 6.4). The architect replied (on the
latter issue) stating 'I would confirm our intention to grant an extension of
time in connection with the re-nominated Sub-contractor's programme time
at such time as the effect on your overall programme can be ascertained.'
It was held that the contractor was entitled to refuse the nomination.
With respect to extensions of time, the following is of practical importance,
30 BLR 26 (at page 41):
1.9:
.Y-
8 WEEKS
O M Y BY
ORIGINAL
SUBCONTRACTOR
I
:'
- .
I
;
+
.~
U
TIME TAKEN TO RENOUINATE
NEW SUBCOtlTRACl
(NO EXTENSION OF TIME FOR THESE OELAYS)

I
:
- : MINIUUM EXTENSION '
v' ORIGINAL SUBCONTRACT TERMINATED
v REPUCEUENT SUBCONTRACTOR NOMINATED
4 OCO = ORIGINAL COMPLETIOtI DATE
4 ECD = EXrENOEO COUPLErlON OArE AT rlUE

OF TERMINArlNG ORIGINAL SUBCONTRACt
Figure 6.4 Fairclough Building Ltd v. Rhuddlan Borough Council
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'In the present instance delay until 24 February therefore falls on the contractor
[following Bilton v. GLC, but on the grounds that the period taken to renomi-
nate by 24 February 1978 was not an unreasonable time]. If, when his con-
tractual completion date is some two and a half months off he is asked to do
work which will take six months to complete we see no reason for saying that
the contract must be so construed that he cannot insist on an extension of time
under the main contract to bring it in line with the proposed subcontract, . . .'
and at page 42:
'It may well be that the doing of such work would not delay actual completion
of all outstanding work but if the contractor is required on 24 February to do
work which cannot be done until September it appears to us at least arguable
that he could not be in breach of contract by reason of failure to do that part of
the work until September and thus that he is entitled, if he does not exercise
his right to prevent nomination, to an extension to that date.' [Bold empha-
sis added]
The main difference between the Bilton case and the Fairclough case
was that Fairclough had asked for an extension of time to cover the period
to complete the work required by the new nominated subcontractor, and
the architect had intimated that he would grant an extension of time,
whereas no extension had been requested in the Bilton case.
Similar problems arise where the contract contemplates the use of
named subcontractors to execute work. However, if the contractor is unable
to enter into a nominated or named subcontract for reasons which are jus-
tified, there may be machinery to overcome some of the difficulties by way
of a variation or by omitting the work or by substituting a provisional sum
(clauses 3.3.1 of IFC84 and 35.2.3 of JCT80).
6.4 Subcontractors' Programmes
In most cases, the contractor's programme will indicate overall periods for
work to be done by each subcontractor. The programme may show sepa-
rately, first, second and final k i n g and various sections of the subcontract
work. Whatever the level of detail shown on the contractor's programme,
many subcontractors will need to subdivide their work into several activities
when preparing their own programmes. If the contractor has been given
sufficient design information when tendering for the work, he will have been
able to prepare his programme taking into account many of the factors
which govern the sequence of the subcontractor's work. Assuming that the
contractor's programme is still valid (based on progress and the current con-
tractual completion date), the contractor and the subcontractor ought to be
able to agree a realistic programme which is consistent with the overall pro-
gramme. It would be unusual if some minor reprogramming of the prin-
cipal works and/or the subcontract works was not necessary at the time
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Subcontractors 199
of subcontracting. A competent contractor, given sufficient information at

tender stage, ought to be able to accommodate such reprogramming
without raising an objection or subsequent claim.
In some cases, the subcontract works may be on the critical path, in
which case the subcontractor's programme and the overall programme
need to be given careful attention, preferably before the subcontractors
submit their tenders for the subcontract works. This can be facilitated by
ensuring that the contractor and all tendering subcontractors have detailed
discussions at pre-tender stage. Where the subcontract works are not crit-
ical, the subcontract period may be open to negotiation. For example, if
activity B-G in Figure 5.2 (supra) represents work to be done by a sub-
contractor, the options for the subcontract period may be:
commence at the beginning of the fourth week and complete in six weeks
(earliest start);
commence at the beginning of the tenth week and complete by the end
of the fifteenth week (latest start);
commence at the beginning of the fourth week and complete by the end
of the fifteenth week (earliest start and latest finish);
commence at any period between the beginning of the fourth week and
the end of the fifteenth week (which may be more or less than six weeks'
duration).
These options may have a bearing on the subcontractor's price for exe-
cuting the subcontract works and should therefore be discussed before sub-
mission of the subcontractor's tender (whether the subcontractor is domestic
or nominated). They may also have a bearing on the contractor's atten-
dance (for example, the period required for scaffolding). In the case of a
domestic subcontractor, the contractor can use the optimum solution to
arrive at the best tender for the main works or (if arising after award of the
principal contract) to obtain a saving on its original estimate for the works.
In the case of a nominated subcontractor, the employer may enjoy the
benefit of the optimum solution.
Another difficulty arises where the subcontract is executed on or about
the date of commencement of the main works, but the subcontract works
are due to commence several months later. Delays to the main works which
occur prior to the date of commencement of the subcontract works
may qualify for an extension of time (for completion of the main works).
However, the progress of the subcontract works has not been delayed (since
the subcontractor has not yet commenced work) and there may be no pro-
vision to adjust the completion date of the subcontract works. It is therefore
important to make provision in the subcontract for the commencement and
completion dates of the subcontract works to be adjusted in such circum-
stances. This may be overcome by stating a period for completion of the
subcontract works and providing for the subcontractor to commence work
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within a specified period of the contractor's written notice. This may be ideal
for contractors, but subcontractors may require provisions to enable them to
recover any additional costs which may arise from delayed commencement.
6.5 Extensions of Time for Completion of

Subcontract Works
Most forms of subcontract contain provisions for extensions of time to be

made for the following reasons:
delay for which the contractor is entitled to an extension of time for com-
pletion of the works pursuant to the principal contract;
delay or default on the part of the contractor, or persons for whom the
contractor is responsible (such as other subcontractors).
If the subcontract work is on the critical path, a qualifying delay which
affects the subcontract works will have equal effect to the completion
periods for the subcontract works and the main works. If the subcontract
work is not on the critical path, delays which occur may have different
effects on the relevant completion dates. For example, delay on the criti-
cal path may give rise to an extension of time for completion of the main
works, but no extension of time may be necessary for completion of the
subcontract works. Alternatively, a qualifying delay to the progress of sub-
contract works may justify an extension of time for completion of the sub-
contract works, but no extension may be necessary for completion of the
main works (subject to the contractor subsequently needing an extension -
see Chapter 5, supra).
The interpretation of the various subcontracts ought to run in parallel
with the main contracts (back to back). That is to say, all provisions in the
main contract which are in connection with the subcontractor's obligations,
rights and remedies are required to work together as if the main contract
provisions were set out in the subcontract. For example, clause 4.1 of the
FIDIC Subcontract (1994) provides for an unpriced copy of the main con-
tract to be made available for the subcontractor to inspect and the sub-
contractor is deemed to have full knowledge of it. In addition, clause 12.1
states:
'The provisions of Clause 54 of the Conditions of Main Contract in relation to
Contractor's Equipment, Temporary Works, or materials brought on to the Site
by the Subcontractor are hereby incorporated by reference into the Subcontract
as completely as if they were set out in full herein.'
It is important that the subcontractor's obligations to give notice should be
consistent with the contractor's rights to give notice in such a way that
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Subcontractors 201
neither the contractor nor the subcontractor are disadvantaged. The FCEC
(Federation of Civil Engineering Contractors - now CECA - Civil Engineer-
ing Contractors' Association) blue subcontract form for use with the ICE
main contract and the FIDIC subcontract (1994) for use with the 1987
fourth edition do not quite achieve this. Subclause 7.2 of the 1994 FIDIC
subcontract provides for the subcontractor to be entitled to an extension of
time (inter alia) for reasons for which the contractor would be entitled to
an extension under the main contract. The subclause goes on to say:
'Provided that the Subcontractor shall not be entitled to such extension unless
he has submitted to the Contractor notice of the circumstances which are delay-
ing him within 14 days of such delay first occurring . . . and in any case to which
[the Contractor may obtain an extension under the Main Contract] the exten-
sion shall not exceed the extension to which the Contractor is entitled under the
Main Contract.'
These provisions may be difficult if not impossible to reconcile in some

circumstances.
Firstly, clause 44 of the FIDIC main contract requires the contractor to
give notice within twenty-eight days after such event has arisen and the
engineer has the discretion to grant an extension if notice is not given within
twenty-eight days.
Clause 7.2 of the subcontract provides for the requisite notice to be a
condition precedent to the subcontractor's rights to an extension, whereas
Clause 44 of the main contract is not a condition precedent (see Bremer
v. Vanden in 1.7, supra).
If a subcontractor gives notices of a delaying event, which would justify
an extension of time, fifteen days after the event had first arisen and the
contractor gave notice under the main contract before the expiry of the
twenty-eight day period, the contractor would be entitled to an extension
and the subcontractor would not be entitled to an extension. This could
lead to absurd results. The main contractor and the subcontractor would
have different programmes and other subcontractors would not know which
programme they had to work around. For example, in Figure 5.3 (supra),
the contractor could be granted an extension of time of two weeks due to
delay (Dl) and the subcontractor executing activity J3-E (if he could not
obtain an extension due to his late notice) may have to accelerate to com-
plete by his original completion date (end of week nine). If activity E-F was
to be executed by another subcontractor, would this subcontractor be
obliged to commence at the beginning of week ten (the original programme
date and immediately following completion of the delayed subcontractor's
work) or would he be required to commence work at the beginning of week
twelve (consistent with the delayed programme incorporating the extension
of time granted to the main contractor)? Can the main contractor pro-
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gramme all activities (after activity l3-E) to start and finish on the original
dates and build in two weeks' float for himself?
What happens if the subcontractor's work is not on the critical path for
the main contract?
Assume that the period for completion of the subcontract works is six
weeks commencing in the fourth week (as activity B-G in Figure 5.4,
supra). There is six weeks' float in the main contractor's original pro-
gramme. A suspension order issued by the engineer under the main con-
tract causes delay to the subcontract works for a period of two weeks (delay
Dl). If the subcontractor gave notice to the main contractor within four-
teen days and the contractor gave notice under the main contract within
twenty-eight days, the contractor may not be entitled to an extension
(because the delay will not delay completion of the works) and on the
express wording of the subcontract, the subcontractor will not be entitled
to an extension.
If there should be provisions in the subcontract for liquidated damages
for late completion contemplated by sub-clause 7.4 of the sample Condi-
tions of Particular Application to the FIDIC subcontract, is the contractor
entitled to levy liquidated damages if the subcontractor fails to complete
within the original subcontract period of six weeks? The subcontractor is
blameless. The contractor is blameless (the engineer caused the problem).
If no extension can be granted to the subcontractor, does time for com-
pletion of the subcontract works become at large?
With the exception of delay on the part of nominated subcontractors
under some JCT forms of contract (infra), delays by other subcontractors
(or by the contractor) may entitle the subcontractor to an extension of time,
but the contractor may not be able to obtain an extension of time for com-
pletion of the main works. In such circumstances, various claims and
counter-claims may arise (see Chapter 7, infra).
6.6 Delay by Nominated Subcontractors
The JCT forms of contract (JCT63 and JCT80) contain certain provisions
which can only be regarded as being against the interests of the employer.
JCTSO (clause 25.4.7) provides for extensions of time in the event of delay
on the part of nominated subcontractors or nominated suppliers which the
contractor has taken all practical steps to avoid or reduce. No doubt con-
tractors have insisted upon this provision in the light of experience and on
the grounds that they have not freely had control over the selection of the
nominee. However, if the contractor is to be given the opportunity to
discuss all essential details with the nominee, prior to nomination, and
having regard to the contractor's right to object to any nominee, these pro-
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Subcontractors 203
visions should be removed. Before removing these provisions, the employer

and its professional team should be prepared to make all nominations in
plenty of time for the contractor and the subcontractors to agree to the
programme and for orders to be placed so as to prevent delay. If these
requirements cannot be met, and the extension of time provision for delay
on the part of nominated subcontractors is deleted, contractors will be more
likely to exercise their rights to object, thereby causing delay to the progress
of the main works. The contractor may also be entitled to an extension of
time for completion of the main works pursuant to clause 25.4.6.
Notwithstanding the provisions of clause 25.4.7 of JCT80, the subcon-
tract provisions (clause 11.2.2.1 of NSC/4a) preclude an extension of time
for completion of the subcontract works in the event of delay by the sub-
contractor. The contractor may therefore avoid liability for liquidated
damages under the principal contract and the subcontractor may become
liable directly to the employer.
6.7 Architect's Consent to Grant an Extension of Time to

a Nominated Subcontractor
JCT80 requires the architect's consent to grant an extension of time to

nominated subcontractors (clause 35.14). Some architects are reluctant to
exercise their powers promptly on the grounds that the contractor may use
it to justify an extension of time for completion of the main works. This is
not necessarily the case, and these powers should be exercised as soon as
possible having regard to the completion periods of the respective sub-
contract (which may, or may not, be critical to the completion period for
the main works - infra).
In the case of qualifying delays, an extension of time may, or may not,
be necessary for completion of the main works. In the case of delay by the
contractor (or other subcontractors), the architect may have an obligation
to give his consent to grant an extension of time to a delayed subcon-
tractor. Failure to do so at the appropriate time may provide the delayed
subcontractor with grounds to argue that time for completion of the
subcontract works became at large or to claim acceleration costs.
6.8 Design and Drawings Provided by the Subcontractor
In contracts where the responsibility for design rests with the employer, any
design of the subcontract works by the subcontractor is deemed to be the
employer's design. Therefore, any delay in design by the subcontractor will
be considered to be delay by the employer. However, where the subcon-
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tractor is required to provide installation drawings, these may not be con-

sidered to be design drawings and the subcontractor will be liable to the
contractor for any delay caused by late issuance of installation drawings: H.
Fairweather & Co Ltd v. London Borough of Wandsworth (supra).
Difficulties often arise where design and installation drawings are to be
provided by the subcontractor. What constitutes a design drawing and what
constitutes an installation drawing? There are no reasons why these should
not be defined in the principal contract (definitions in the subcontract may
be of no consequence since the contractor may argue that such definitions
were not part of the principal contract). In the absence of such definitions,
it is suggested that the following principles may be applied:
design drawings include drawings which require calculation and/or co-
ordination with other parts of the works (such as works being designed
by other subcontractors);
installation drawings include drawings which merely represent the sub-
contractor's interpretation of the design having regard to all design infor-
mation provided by the employer's design team.
In the former case, the design of the subcontract works may depend on
design development of other parts of the works, for which the employer
assumes responsibility for design. The design team will have to ensure that
the design of all installations, and the building, fit together. In the latter case,
the subcontractor must be given sufficient information on all other installa-
tions to enable him to complete his installation drawings.
Some contracts attempt to place responsibility for co-ordination of
design by subcontractors (in addition to co-ordination of the installation)
upon the contractor, or on the various subcontractors. This is a recipe for
disaster and employers should be advised to avoid this practice. It is likely
to cause considerable delay and extra cost which, in spite of careful draft-
ing of the contractual provisions, will almost certainly end up being the
responsibility of the employer.
6.9 Variations to the Subcontract Works
Variations to the subcontract works are usually subject to the same treat-
ment as variations to the main works. However, the design of the subcon-
tract works, at the time of nomination, may already incorporate variations
to the main works, in which case they will not be treated as variations to
the subcontract works. For example, the electrical installation may have
been shown on the contract drawings for the main works as having all hori-
zontal conduits in the floor screed. When the nomination is made, the sub-
contract drawings may show the horizontal conduits in the ceiling space.
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Subcontractors 205
This variation (to the main works) may cause considerable reprogram-
ming of all trades in the ceiling space and have an effect on the sequence
of partitions and floor screeds. It may be one of the reasons for the sub-
contractor's programme to be at odds with the contractor's programme. If
the variation to the main works is recognised prior to the nomination, and
an extension of time is made for it, the contractor may have no need to
object to the nominee. If the variation is not recognised prior to the time
of nomination, the discrepancy between the contractor's and the subcon-
tractor's programme may have to be resolved between the architect, the
contractor and the subcontractor in the light of the variation (after nomi-
nation and preferably before the subcontract is made).
If sufficient details were given at tender stage, the type of variation men-
tioned above ought to be detected by the design team and the contractor.
What is the situation if insufficient information is given in the principal
contract to enable the contractor to know if the conduits were originally
intended to be in the floor or ceiling space? The contractor will have to
assume one or the other in order to programme the sequence of trades
and to price the work at tender stage. The design team may argue that
there is no variation to the main works (particularly if it was always intended
that conduits would be in the ceiling space, but this information had not
been given to the contractor at tender stage). In most cases the contractor
would have a strong case for a variation. The failure to give sufficient infor-
mation at tender stage may enable contractors to exploit the situation by
alleging variations when, in fact, they had made the correct assumptions at
tender stage.
Variations to the subcontract works introduced after acceptance of the
subcontractor's tender may have cost implications for the subcontractor
only, or for the subcontractor and the contractor. Time-related costs may
be justified for the subcontractor but not for the contractor. Each variation
will need careful analysis by the contractor and the subcontractor in order
to ensure that the time and cost effects are detected and notified promptly.
6.10 Delay and Disruption Claims
Subcontractors are likely to be delayed by various causes. Subcontractor's

claims for delay or disruption to the progress of the subcontract works for
reasons which give rise to a claim against the employer are likely to receive
the contractor's co-operation to ensure that the full effects are reflected
in extensions of time and additional payment made under the principal
contract. The sooner the contractor and subcontractor can recognise the
merits of co-operating on the keeping of records, giving notices and
the means of formulating a claim, the greater the chance of maximising
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the remedy and reimbursement of additional payment. A joint approach

which is consistent is a powerful tool, provided that the claim has merit and
substance.
However, claims for delay or disruption to the progress of the subcon-
tract works by the contractor, or other subcontractors, are likely to be
resisted by the contractor for various reasons:
if the delay is concurrent with a delay which is the employer's responsi-
bility, the contractor's claim against the employer may be prejudiced;
the contractor may have difficulty in disentangling the causes and effects
of delays caused by himself and/or various other subcontractors, thereby
increasing the likelihood that the cost will have to be borne by the
contractor.
If the contractor can clearly identify the culprit(s) to whom a subcontrac-
tor's claim may directed, he may be less resistant to the claim. Much will
depend on the chance of recovering the costs from the defaulting subcon-
tractor(~).Where the contractor is to blame for the delay or disruption, set-
tlement will depend on the contractor's and subcontractor's records and the
subcontractor's ability to present his claim with clarity. Onerous subcontract
conditions and counterclaims will often feature in negotiations and it may
be in the contractor's interest to do a deal in order to conceal the nature
of the dispute from the employer's professional advisers (particularly if
the delay is one which is concurrent with delays which may give rise
to additional payment under the principal contract). Subcontractors who
recognise a vulnerable contractor can often achieve a prompt and
satisfactory settlement.
Subcontractors who cause delay and/or disruption may find themselves
liable for claims from three directions (all recoverable through the provi-
sions of the subcontract):
claims for the contractor's own costs caused by the subcontractor's
default;
liquidated damages levied against the contractor by the employer;
claims from other subcontractors against the contractor resulting from
the subcontractor's default.
However, if the subcontractor is delayed by matters for which the employer
is responsible, the contractor may be able to obtain a remedy under the
main contract subject to the subcontractor complying with the relevant pro-
visions in the subcontract. Provisions for giving notice and particulars vary
with subcontracts. As stated in 6.5, subcontracts ought to be 'back to back'
with the main contract. In the case of the FCEC/CECA and FIDIC sub-
contracts (supra),the provisions are somewhat better than those for exten-
sions of time. Sub-clause 11.1 of the FIDIC subcontract states:
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Subcontractors 207
'. . . whenever the Contractor is required by the terms of the Main Contract to
give any notice or other information to the Engineer or to the Employer, or to
keep contemporary records, the Subcontractor shall in relation to the Subcon-
tract Works give a similar notice or such other information in writing to the Con-
tractor and keep contemporay records as will enable the Contractor to comply
with the terms of the Main Contract.'
From a practical point of view, it is vital that contractors and subton-
tractors maintain good relationships and co-operate with each other in
order to obtain the fullest benefit under the main contract. Contractors who
are at odds with both the employer and their subcontractors are likely to
be at a disadvantage whichever way they turn to obtain payment of claims.
6.11 Liquidated Damages
Most subcontracts do not have an express provision for liquidated damages

(one of the exceptions being the FIDIC subcontract, Part 11). If a subcon-
tractor causes delay which results in the main contractor being liable for liq-
uidated damages, then the main contractor will seek to recover the amount
of liquidated damages from the subcontractor, usually through an express
term in the subcontract or as damages.
Problems arise if the subcontract works are small in comparison to the
main contract but vital to the timely completion of the works. It could
be the case that a few days' delay by a subcontractor may bring with it a
liability for liquidated damages far in excess of the value of the subcontract
works. The fact that the amount of liquidated damages is high compared
to the subcontract sum does not make the amount a penalty and there is
little the subcontractor can do to avoid liability after the event. If the sub-
contractor can show that the liquidated damages provisions in the main
contract were never properly communicated to it, then that may be a
defence. The best advice to any small subcontractor is to obtain a limit
on its liability for any claims for delay before submitting a tender for the
work.
If liquidated damages for late completion are stipulated in a subcontract,
then it is possible that the courts may construe this head of damages as
including the main contractor's and other subcontractors' claims for delay:
M.J. Gleeson PICv. Taylor Woodrow PIC(1990)49 BLR 95. The example
sub-clause in Part Il of the FIDIC subcontract states that the amounts stipu-
lated for liquidated damages are the only damages for delay. However, there
is no reason why there could not be provisions for both liquidated damages
and other claims for delay, provided that the definition of liquidated
damages clearly sets out what is included in the stipulated sum. Any head
of claim which did not fall within the definition may (subject to it being
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a direct consequence of the delay) be claimed in addition under a suitable

express term in the subcontract.
If more than one subcontractor is guilty of delay to completion (and pos-
sibly the main contractor is also at fault), the allocation of liability to each
subcontractor may be fraught with difficulty. The contractor is required to
link cause and effect and to illustrate how and why each subcontractor
is liable and for what amount: Mid Glamorgan County Council v. J.
Devonald Williams (see 1.6, supra).
6.12 The Law Applicable to the Subcontract
Many problems can be avoided if the law applicable to the main contract
is the same as the law applicable to each subcontract. However, it is not
uncommon for contractors to choose the law applicable to the subcontract
which is at odds to the law applicable to the main contract. If, for example,
the main contract was subject to the Laws of South Africa and a subcon-
tract was subject to English Law, how would penalties work if the subcon-
tractor caused delay?
What would be the situation if the subcontract work was on the critical
path and the subcontractor was the only culprit that caused delay, as a result
of which the main contractor finished late and the employer deducted penal-
ties? The subcontractor would no doubt argue that the penalties could not
be levied against it. The main contractor would argue that the deduction of
penalties by the employer was part of the damages suffered as a result of
the subcontractor's delay, which were contemplated and of which the sub-
contractor was aware by having notice of the main contract provisions.
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Response t o Claims:
Counter-claims
7.1 General Policy
No one likes to be on the receiving end of a claim. From the employer's

point of view it will mean additional cost by way of loss of revenue and/or
additional payments to be made to the contractor. From the point of view
of the professional advisers to the employers, it may reflect on the firms'
competence in preparing contract documents and on their skills in con-
tracts administration. They may also be faced with additional costs of admin-
istration which cannot be recovered from the employer. When contractors
receive claims from subcontractors, they will be mindful of the fact that
the claim may arise out of their poor organisational skills, in which case
they will not be able to obtain reimbursement from the employer or other
subcontractors.
Nevertheless, valid claims are a fact of life in modern construction pro-
jects. They are an essential feature of small and large contracts and the
machinery to deal with them should be regarded as an important element
of control. Prompt submission of notices and particulars, followed by a con-
sidered response from the recipient as soon as possible will usually facili-
tate early remedial action and settlement.
The employer's professional advisers will normally be required to act
as independent valuer or certifier under the contract and/or advise the
employer on the contractor's rights and entitlements. In Pacific Associates
Inc and Another v. Baxter and Others (supra - Chapter I), it was held
that the contractor had no recourse against the engineer if he should fail
to certify properly and act fairly. The contractor would, however, be able
to recover from the employer. Consultants should therefore be aware that
they are likely to be the target for negligence claims from the employer if
the contractor's claims arise out of their failure to value or certify in accor-
dance with the conditions of contract. Employers should also be aware that
their interference with the impartial certifying function of their consultants
will be self-defeating (Morrison-Knudsen v. B.C. Hydro & Power and Nash
Dredging Ltd v. Kestrel1 Marine Ltd, Chapter 1- supra).
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Consultants who fend off claims to avoid criticism of their own perfor-
mance may only be compounding the problem and laying themselves, and
the employer, open to greater claims from contractors. Delay in recognis-
ing a claim and responding to it may cause any hope of effective remedial
action to be lost. Poor advice given by consultants to the employer upon
which the employer relies to embark upon the road to litigation or arbitra-
tion which could otherwise have been avoided may lay the consultants open
to claims from the employer.
If claims are to be dealt with effectively, employers and their professional
team should decide on policy at the outset. There should be a system of
referral to experienced staff who are not responsible for the day-today
administration of the project. Advice from an independent consultant may
be appropriate from time to time. A policy statement should include the
following:
consultation as soon as the first notice from the contractor is received
(or as soon as any member of the professional team recognises a poten-
tial claim);
delegation of responsibilities to verify facts;
consultation to determine the validity, merits and substance of the claim;
consultation to analyse the causes and effects of the matters which are
the subject of the claim;
recommendations on the quantum of the claim;
content of written response and necessary certificates to be issued.
Whatever policy is adopted, the timing and content of the first response
to a claim situation may be critical to its successful conclusion with the
minimum exposure to delay and additional cost. It is important that the
response should reflect the opinion of the certifier (which may take into
account the various matters discussed during consultations with other
members of the professional team and the opinions of persons to whom
the claim may have been referred).
The content should be sufficiently detailed to show that the matter has
been properly considered and the door should be left open to allow the
contractor to submit further arguments or facts in support of the claim.
7.2 Extensions of Time
Prompt response to any situation which may jeopardise progress and com-
pletion of the works by the due date is necessary for practical and con-
tractual reasons. From a practical point of view, it is essential to have a
valid programme which is consistent with progress and the latest extended
completion date. Without continual review which takes account of actual
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Response to Claims: Counter-claims 211
delay and entitlement to extensions of time, there is no means to plan future

issuance of details and instructions and there is no yardstick by which to
measure hture delays. Extensions of time granted several months after the
event (or even several months after completion of the project) are of no
practical use and any opportunity which may have existed to reduce the
delay may have been lost.
From a contractual point of view, time to exercise the powers to grant
an extension may be critical to the employer's rights to levy liquidated
damages (Miller v. London County Council, Chapter 1- supra). Some
doubt has been expressed on the validity of the argument that if extensions
of time are not granted within the time contemplated by the contract, the
employer's rights to liquidated damages are extinguished. In Temloc Ltd v.
Erril Properties Ltd (Chapter 1- supra), the employer argued that since
the architect had failed to grant an extension of time within the twelve-
week period provided in clause 25.3.3 of JCT80, the employer could not
recover liquidated damages but he could recover general damages in lieu
of liquidated damages (which in this case had been £nil in the appendix to
the contract). The judge took the view that the twelve-week period was
directory only and not mandatory. This view has been highly criticised by
distinguished authors on construction contracts. However, since it was the
employer who was seeking to rely on this provision in order to recover
damages which it could not otherwise claim under the liquidated damages
provision in the contract, it is not surprising that the judge did not see fit
to allow the employer to benefit from his own architect's failure to grant
an extension within the time limits laid down in the contract. If this prac-
tice was condoned by the courts, nothing would prevent employers from
encouraging architects to delay granting an extension of time if the general
damages were found to be greater than the liquidated damages specified in
the contract. It is submitted that the contractor would still be able to succeed
in arguing that the employer could not rely on the liquidated damages pro-
visions in the contract, if the architect did not grant an extension of time
within the twelve-week period, notwithstanding the judge's view in Temloc
v. Erril Properties.
In a recent Australian case, it was held that the employer had the
option to levy liquidated damages (if the architect issued the necessary non-
completion certificate) or, if no certificate was issued, the employer may
levy general damages which may exceed the amount stipulated for liqui-
dated damages: Baese Pty Ltd v. R.A. Bracken Building Pty Ltd (1989)
52 BLR 130. The commentary to the case (at pp. 131 and 132) suggests
that the judgement is of limited application and should not be regarded
as creating a precedent giving rise to a general right to opt for liquidated
damages or general damages.
The requirement to grant an extension of time within the periods con-
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templated by the contract does not mean that the architect's, or engineer's
opinion must be the right one. The architect, or engineer, need only con-
sider the delay and grant, or refuse to grant, an extension of time within
the requisite period. Provided that there was a genuine attempt to deal with
the matter, and the contractor was notified of the extension, or reasons for
refusing an extension, within the period, then the contractual provisions
will be satisfied and the employer's rights to rely on the liquidated damages
provisions will be preserved. A refusal, or insufficient extension, which is
not based on a genuine attempt to assess the delay (but merely to preserve
the liquidated damages provisions), may not be effective. No response, or
protracted exchanges of correspondence with no conclusion may not
preserve the employer's rights to liquidated damages if it should be subse-
quently held that an extension of time ought to have been granted at the
appropriate time.
The case of Aoki Corp v. Lippoland (Singapore) Pte Ltd (19951 2 SLR
is likely to be regarded as introducing a change to the existing ground rules.
This Singapore decision dealt with the peculiar wording of clause 23.2 of
the SIA (Singapore Institute of Architects) form of contract in which the
architect is required to give an initial intimation of his decision as to whether,
or not, a delaying matter deserves an extension of time, in principle within
one month of the contractor's notice of delay, without having to give his
opinion on the amount of the extension in his initial intimation. The con-
tractor argued that the architect's failure to give his initial decision in prin-
ciple within one month had the effect of the architect losing his power to
grant an extension, that time (for completion) was 'at large' and that the
employer lost its rights to levy liquidated damages.
The judge found in favour of the employer. That is to say, the architect's
initial intimation was not given too late in the circumstances of this par-
ticular case. Certainly, the wording of clause 23.2 of the SIA form does
not make it a condition precedent to the architect's rights to grant an
extension of time that the initial intimation should be given within one
month. That much can be gleaned from Bremer Handelsgesell-Schaft
M.B.H. v. Vanden Auenne-lzegem I?UB.A. (infra), in which the judge
stated that there must be express wording to bar an entitlement or right if
notice was not given within the prescribed time.
However, the Singapore case did not deal with the issue as to when the
extension of time itself should ultimately be granted. In the circumstances
of this case, the judge took the view that the initial intimation (given three
months after completion of the works) was not too late. However, it is
evident that an initial intimation given two-and-a-half years after comple-
tion quoted in a reference to an earlier case of Tropicon Contractors Pte
Ltd v. Lojan Properties Pte Ltd [I9911 2 M U 70 (CA); (1989) 2 M U
215 (dist)was given too late. Notwithstanding the Aoki v. Lippoland deci-
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sion, an architect or engineer who delays any decision regarding an exten-

sion of time therefore runs the risk of jeopardising the employer's rights to
levy liquidated damages.
It would seem at least arguable that the case of Aoki v. Lippoland has
not affected the existing ground rules for most other forms of contract,
but it must be said that there may be a shift in policy on the application
of extension of time provisions. What appears to be emerging from the
Singapore decision is an acceptance, by the courts, that if an extension of
time is not granted within the time contemplated by the contract, then the
contractor may be entitled to damages (the costs of acceleration), rather
than allowing time to be at large.
Clause 25 of the JCT80 conditions requires the architect to state the
relevant event which he has taken into account when making an extension
of time (without necessarily allocating periods against each event). Clause
2.3 of the JCT Intermediate for IFC84 does not require the architect to
allocate periods against each relevant event. Under JCT80, the architect's
response to any notice of delay is required within twelve weeks of receipt
of the contractor's notice or particulars, or before the completion date.
Under IFC84 the architect's response is required as soon as he is able to
assess the extension. In both cases there is provision to review the exten-
sions of time within twelve weeks of practical completion.
Both the ICE conditions and the 1987 fourth edition of FIDIC (clause
44) are almost noncommittal as to when the engineer should respond
to a claim for extensions of time. ICE requires a response 'forthwith', and
FIDIC 'without undue delay' if the engineer considers that an extension is
due.
The NEC contemplates a considerable amount of co-operation between
the contractor and the project manager with respect to notification and
assessment of 'compensation events'. Sub-clause 64.3 states:
'The Project Manager notifies the Contractor of his assessment of a compensa-
tion event and gives him details of it within the period allowed for the Contrac-
tor's submission of his quotation for the same event. This period starts when the
Project Manager's assessment becomes apparent.'
The 1999 FIDIC Red, Yellow and Silver Books require the engineer or
employer (as the case may be) to respond within forty-two days after receiv-
ing the contractor's notice and particulars (sub-clause 20.1). A response
may be with approval or with disapproval and with detailed comments.
Sub-clause 3.5 requires the engineer (within the forty-two days) to consult
with each party in an endeavour to reach agreement or, failing agreement,
he must make a fair determination. Under the Silver Book, where the
employer deals with such matters (as there is no engineer), the contractor
must register his dissatisfaction with the employer's assessment of his claims
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within fourteen days or he must give effect to it. The text of this clause
could have been clearer and there is at least the possibility that the
employer's determination could become final and binding if the contractor
fails to register his dissatisfaction within fourteen days. If the contractor reg-
isters dissatisfaction [within fourteen days], the dispute may be referred to
adjudication.
Under the 1999 FIDIC Green Book, no time limits are laid down within
which the employer must respond.
The contents of a response to a notice or claim for an extension of time
are important. Whilst it is not usually necessary to give periods of exten-
sion for each separate cause of delay (save to the extent that it may be
required separately for a claim for loss and/or expense pursuant to clause
26.3 of JCT80),it is good practice to do so for the following reasons:
it enables the contractor to be fully aware of the delays which have been
considered (within the time limits for granting an extension);
it facilitates agreement on some of the delays and extensions of time
granted therefor, and enables both sides to concentrate on resolving the
contentious delays;
if facilitates agreement on delays which may, in any event, have to be
quantified in order to establish the amount of additional payment;
it enables the contractor to identify which delays apply to which sub-
contractors so that consistent extensions of time can be granted under
each subcontract.
Some common problems which arise are:
Late information
Information may be issued late (having regard to the programme) but not
actually cause delay to the progress of the works because the contractor is
not ready to commence the work which is affected by the late information.
Is the contractor entitled to an extension of time? Factors to be considered
include the following:
Is there a lead time? That is to say, does the contractor have to order
materials or arrange for the work to be done by a subcontractor? The
architect, or engineer, may be already in delay prior to any delay by the
contractor and would therefore not have been in a position to anticipate
the site progress. It may well be that the information was required before
the contractor commenced the affected work and the contractor had no
need to commence prior to receiving the information (see Figure 7.1).
Is the contractor in delay for matters which would justify an extension,
or is he being dilatory?
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------
ORIGINAL PROGRAMME
1777777721 ACTIVITY DEPENDING ON INFORMATION
PROCUREMENT PERIOD
ORIGINAL DATE INFORMATION REQUIRED

ACTUAL DATE INFORMATION ISSUED
D1 CONTRACTOR DELAY (BUT COMPLETES ACTIVITY
IN TIME TO PREVENT DELAY TO NEXT ACTIVITY)
D2 DELAY IN ISSUANCE OF INFORMATION
D3 DESIGN DELAY OCCURRING PRIOR
TO CONTRACTOR DELAY
D4 DELAY TO COMPLETION
Figure 7.1 Late information concurrent with contractor's delay
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It may be that even if no extension was justified, the employer could not
in any event have been in a position to give the information earlier and
could not therefore have obtained use of the project any earlier than the
time required to complete the remaining work affected by the late infor-
mation. The best advice is not to rely on the contractor's delays to put off
issuance of information for construction. If it is unavoidable, the contrac-
tor may be entitled to the benefit of the doubt and the employer may have
no claim against the contractor.
Information and variations issued after the completion date

If the contractor is in culpable delay and liable to liquidated damages, further
delay caused by information and instructions issued after the completion
date has passed may be difficult to deal with within the contractual machin-
ery. In such circumstances, contractors will seize the opportunity to estab-
lish extensions of time for the full period up to the date when the delay
ceased to affect the progress of the works, plus an allowance to complete
the remaining works. Much will depend on the reasons for the late
information or variation (see Chapter 5 - supra) and the terms of the
contract.
If the contract does not provide for extensions of time after the com-
pletion date has passed, or if the provisions allow for extensions of time
without presetvation of the employer's rights to liquidated damages, the
employer and his professional advisers will need to give careful considera-
tion to the need for giving any instructions at all, and if they cannot be
avoided, what should be done to protect the employer's interests?
If the architect, or engineer, is of the opinion that an extension of time
can, and ought to be made, then an extension should be made having
regard to the facts and circumstances. If the architect, or engineer, is of the
opinion that no extension can be made, then the contractor should be
advised accordingly.
Except in the most straightforward of cases, these circumstances may
require expert advice on the meaning of the contractual provisions and the
period of extension which may be justified (see Balfour Beatty Building
Ltd v. Chestermount Properties Ltd in 5.3 - supra).
Omission of work
The provisions of JCT8O contemplate an allowance for any variation, as
an omission of work which produces a saving in time, when considering
the period of any extension of time which may be granted. Clause 25.3.1.4
requires the architect to state:
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'the extent, if any, to which he has had regard to any instruction requiring as a
Variation the omission of work issued since the fixing of the previous Com-
pletion Date'. [Emphasis added]
The architect may also, after the completion date, fix an earlier completion
date than that previously fixed if it should be reasonable to do so having
regard to omissions ordered after the date of fixing the previous comple-
tion date - clause 25.3.3.2.
Whether or not there should be any omissions, the architect is required
to grant an extension of time within twelve weeks of the contractor's notice,
or before the completion date, whichever is earlier. Even if notices and par-
ticulars and extensions of time are given without delay, the contractual pro-
visions may not allow all omissions to be taken into account. There may
be a period when omissions occur but which cannot be taken into account
(see Figure 7.2). While it is reasonable to have provisions to make allowance
for omissions, it appears that the JCT80 provisions could be improved to
catch other omissions whjch occur after the delaying matter which was
the subject of the previous extension of time had ceased to operate.
It should also be borne in mind that, where there is delay in granting an
extension of time (even if it should be granted within the requisite period),
the contractor may issue a programme which is a fair reflection of the exten-
sion due with the exception of any omissions. It would be good policy to
bring the omissions to the attention of the contractor before work has
progressed in accordance with the revised programme to the extent that
the benefit of the omission is lost.
In order to prevent these circumstances arising, where the architect is of
the opinion that there is a case to make any allowance for omissions, he
should address the matter without delay in consultation with the contractor
so that there is no doubt as to the reasonableness of any allowance. In any
event, an allowance should only be made where the omission is on the crit-
ical path, or is of such a nature that resources (previously required to execute
the omitted work) can be diverted to execute work on the critical path and
that there will be a benefit in time. It is insufficient to make a subjective
judgement without a proper analysis of the programme and progress to
establish that a saving in time was justified.
It is important to note that omissions to have the work done by others
is a breach of contract and may not qualify to be taken into account (see
also Chapter 1 - supra).
Concurrent delays
Many architects, and engineers, refuse to grant extensions of time for
qualifying delays when the contractor is himself in delay at the same time.
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I
D1 01
1 ORIGINAL CONTRACT PERIOD
EP 1
!
D3
1
: = QUALIFYING DELAYS
I 1//////~
\
\
N1
I=\\\Y
E1
I
FIRST EXTENSION
::]
N3
= NOTIFICATION AND
PARTICULARS
D2 02
I
IEP2
SECOND EXTENSION E3
::3 = GRANTING OF EOT
\ N2 E2
\ I = EXTENDED PERIOD
I EP3 ETC.
I
D3
V///A
\
.
\.
03
h\Y
N3
I EP3
THIRD EXTENSION
1 FEP
01
02
= 1st OMISSION
(NOT QUALIFYING
FOR CONSIDERATION)
= 2nd OMISSION
(QUALIFYING FOR
CONSIDERATION
I FINAL EXTENSION IN EXTENSION
GRANTED - E2)
03 = 3 r d OMISSION
(QUALIFYING FOR
CONSIDERATION
Pvlod wlthln whlch
NOTE: OMISSIONS INSTRUCTED BEFORE PREVIOUS GRANTING IN EXTENSION
GRANTED - E l )
axtanalon of ttma
OF AN EXTENSION OF TIME MAY NOT QUALIFY FOR ahould ba grantad
CONSIDERATION WHEN ESTIMATING SUBSEQUENT FEP = FINAL EXTENSION
PERIOD OF EXTENSION
1777771 PERIOD OF DELAY
b m TlME SAVING DUE
TO OMISSION
NETT EXTENSION
Figure 7.2 Omission of work - clause 25.3.3.2of JCT80
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Sometimes this is justified, but very often an extension of time is necessary

(see Chapter 5 - supra).
Once the contractor has given notice of delay, or if the architect, or engi-
neer, is aware of delays on the part of the contractor, it is important
that these delays are monitored. The consultants responsible for granting
extensions of time and/or certifying additional payment arising out of delay
owe a duty of care to the employer to ensure that the contractor is not
given any more time or money than is reasonable in all of the circum-
stances. They will have to consider those matters described in Chapter 5
(supra).
In order to ensure that the employer is not exposed to additional costs
which should not rightly be borne by the employer, the architect, or engi-
neer, will have to be aware of delays by the contractor at the earliest pos-
sible time. Once aware of these delays, it is important to keep contemporary
records.
Any response to claims for extensions of time should state which delays
(by the contractor) were concurrent with qualifying delays and which (if any)
were considered to be delaying completion of the works. This may not
necessarily reduce or affect the extension of time to which the contractor
is entitled, but the contractor will be aware of the fact that the architect, or
engineer, is well informed on the progress of the works.
7.3 Claims for Additional Payment
While a prompt response to claims for extensions of time is essential for

practical reasons, and to keep the liquidated damages provisions alive, a
response to claims for additional payment is not usually subject to the same
urgency. Nevertheless, provided that the contractor gives notice and par-
ticulars in accordance with the contractual provisions, assessment of the
sums due and certification for payment should be done as soon as possi-
ble. It is often in the employer's interests to deal with these claims as early
as possible. Agreement of claims and settlement from time-to-time during
the course of the project reduces the contractor's ability to collect all out-
standing claims into a 'global claim' which may be little more than a state-
ment claiming the difference between the certified value of all completed
work and the actual cost.
Many contractors may prefer to wait until the end of the contract before
submitting a formal claim. If that is the case, the employer may not be dis-
posed towards any attempt to encourage the contractor to submit his claims
as they arise so that they can be settled and set aside. In such circumstances,
the employer's professional team should be aware of potential claims and
make whatever assessment they can from their own investigations and
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records. The employer will be interested in knowing the amount of the

potential claim, but no action should be taken to effect payment before the
contractor has complied with the contractual procedures (unless a deduc-
tion in the contract price may be justified). Once the contractor's particu-
lars are received, the assessment can be modified in the light of such
particulars and a prompt settlement may be possible.
If the contractor has gone to a great deal of time and trouble to submit
a well thought-out claim, with full particulars and sensible calculations, then
a written response merits a similar amount of detail, indicating where there
is agreement and reasons for any adjustments which, in the opinion of the
architect, or quantity surveyor, or engineer are considered to be appro-
priate. If, on the other hand, the contractor's submission is poorly argued
and presented, the temptation to dismiss the claim out of hand should be
resisted. A response should explain why the submission is unsatisfactory
and it should give the contractor the opportunity to clarify, or amend the
claim. Further particulars may be requested, and these should be specified.
If it is a frivolous, or unfounded claim, the contractor should be politely told
so. If the claim is justified, and has merit, it is unlikely to go away, in which
case it may be appropriate to give the contractor some guidance as to pre-
sentation. It may well be that the matter which is the subject of the con-
tractor's claim is one which ought to be dealt with as a variation, thereby
giving the engineer, or quantity surveyor, the scope to deal with the matter
within the rules for valuation of variations. Provided that the employer
is not disadvantaged, this approach may be the most acceptable to all
concerned.
The NEC conditions require co-operation and an early response to all
compensation events by the project manager within the time provided in
sub-clause 64.3 (see above).
The 1999 FIDIC conditions require the engineer to consult with the
employer and the contractor and to respond within forty-two days in accor-
dance with sub-clause 20.1. Under the Silver Book, the employer deals with
such determination and this may become binding if the contractor fails to
register dissatisfaction within fourteen days (see above).
7.4 Counter-claims: Liquidated Damages: General Damages
Many claims which may be levied by the employer against contractors are
overlooked or are not considered to be worth pursuing. This may be
because employers are fearful that such claims could be the reason for large
claims by contractors which may otherwise have been waived.
Claims which may be levied against contractors include those arising out
of defective work and failure by the contractor to execute work expressly
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authorised under the terms of the contract. Some claims may be made
under the terms of the contract and the amounts of the claims may be set
off against interim or final payments due to the contractor from the
employer. Others may be common law claims.
The most common counter-claim against contractors is the deduction of
liquidated damages for late completion of the works (or if provided for in
the contract, for late completion of sections of the works). In order to be
enforceable, a liquidated damages provision must be unambiguous and the
sum stated in the contract must be a genuine pre-estimate of the employer's
likely loss, estimated at the time of making the contract in the event of delay
to completion. If the sum stated is a penalty, the employer cannot rely on
the clause (unless the law expressly permits penalties). It will not be deemed
to be a penalty merely because the employer's actual loss is less than the
liquidated damages (for example, if the liquidated damages were based on
realistic anticipated rents at the time of making the contract, and the market
had collapsed by the time the works were complete, the contractor could
not argue that the sum was a penalty).
The employer's professional team may have to advise the employer on
the amount of liquidated damages to be inserted in the contract and on the
contractor's potential liability for liquidated damages when the contractor
is in delay during the course of the contract. However, consultants should
not use the threat of liquidated damages in any response to a contractor's
delay claim, even if it is clear that the contractor is in default. Such matters
should be for the employer alone, and then only when the consultants
have properly considered all delays which may give rise to an extension of
time.
JCT63 required the architect to issue a certificate stating that in his
opinion the works ought reasonably to have been completed by the date
for completion as a precondition to the employer's rights to deduct liqui-
dated damages - clause 22. Having regard to circumstances which may
have arisen during the course of the contract (such as delay by the employer
which may not have qualified for an extension of time) the architect
may have had good reason not to be able to express such an opinion, in
which case no certificate could be issued and no liquidated damages
could be deducted. JCT80 only requires the architect to certify that the
contractor had failed to complete the works by the completion date (as a
fact) before the employer can deduct liquidated damages - clause 24. Many
other forms of contract do not require a certificate of any sort as a
prerequisite to the employer exercising its rights to deduct liquidated
damages.
It is often argued that the architect cannot certify that the contractor has
failed to complete the works by the completion date unless and until he has
considered all of the delays for which an extension of time may be granted:
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Token Construction Co Ltd v. Charlton Estates Ltd (1976) 1 BLR 48.

If, however, a further extension of time is granted after liquidated damages
have been deducted, the employer must repay the liquidated damages for
the relevant period of further extension (for example, clause 24.2.2 of
JCT80). The contractor is entitled to interest on the liquidated damages
withheld, and subsequently repaid: Department of Environment for
Northern Ireland v. Farrans (1981) 1 9 BLR 1. Clause 47(5) of the sixth
and seventh editions of the ICE conditions of contract provides for interest
on liquidated damages to be repaid to the contractor as a result of further
extensions of time.
If there are no provisions in the contract for liquidated damages, the
employer may be able to levy a claim for general damages. Where there is
a provision for liquidated damages for late completion of the works, but
there are no provisions to deduct liquidated damages for late completion
of each phase (assuming that the contract contemplates phased comple-
tion), the employer may have a claim for general damages for late com-
pletion of any phase: Mathind Ltd v. E. Turner & Sons Ltd (see Chapter
3 - supra). Where the employer has lost his rights to liquidated damages,
he may be able to claim general damages for late completion (see Chapter
1- supra).
General damages may arise if the employer suffers loss as a result of any
breach of contract by the contractor. Provided that the nature and cause of
the loss are not identical to those which may be recovered under a liqui-
dated damages provision, then general damages may be recoverable in addi-
tion to the liquidated damages for late completion. Some tailor-made
conditions of contract provide for liquidated damages and general damages
for delay. Provided that the nature of the damages are not identical (thereby
duplicating the claim for delay), provisions of this kind may be enforceable.
For example, if the liquidated damages were a genuine pre-estimate of the
loss of revenue and direct costs of supervision during the period of overrun,
a separate claim to recover delay costs levied by other contractors (who
were delayed by the contractor) would not be a duplication of the same
damages and may be recoverable in appropriate circumstances.
The 1999 FIDIC Red, Yellow and Silver Books require the employer to
give notice of any claims against the contractor as soon as practicable (sub-
clause 2.5) and the engineer (the employer in the case of the Silver Book)
is required to determine the claim in accordance with sub-clause 3.5. This
procedure is a prerequisite to deduction from sums due to the contractor
or payment from the contractor. Under the Silver Book, where the
employer deals with such matters (as there is no engineer), the contractor
must register his dissatisfaction with the employer's assessment of his claims
within fourteen days or it becomes binding. If the contractor registers
dissatisfaction within fourteen days, the dispute may be referred to
adjudication.
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7.5 Claims Against Subcontractors
There is an increasing incidence of claims made by subcontractors against

contractors and by contractors against subcontractors. Some forms of sub-
contract devised by contractors are aimed at precluding any claim at all from
subcontractors and they attempt to provide for claims to be made against
subcontractors on dubious grounds with little supporting evidence. Recent
cases in the courts have identified the most unreasonable contractors in this
regard. Notwithstanding the adverse publicity and understandable indigna-
tion expressed by various trade associations, the majority of contractors use
recognised standard forms of subcontract and apply the provisions fairly.
Where a subcontractor is in delay, or is disrupting the progress of the
works, the contractor will naturally wish to recover any losses incurred from
the defaulting subcontractor. Where there is only one subcontractor in
delay, and there are no competing delays, it is possible to establish liability
with relative ease. However, it is probable that there will be several delays
occurring at the same time, in which case the contractor will be faced with
the difficulties which have been mentioned in respect of concurrent delays
in Chapter 5 (supra).Only the most careful attention to records and regular
updating of programme and progress schedules will enable the contractor
to establish liability and quantum of damages which may be recoverable
from several subcontractors (and possibly from the employer) for what may
be substantially the same period of delay.
Where the contractor becomes liable to liquidated damages for late com-
pletion of the main works, he will seek to recover some, or all, of the
damages from defaulting subcontractors. In the case of nominated subcon-
tractors, this may not arise (for example, where the contractor is able to
obtain an extension of time for delay on the part of nominated subcon-
tractors). Nevertheless, the contractor may have a claim against the nomi-
nated subcontractor for the costs of prolongation which he could not
recover from the employer.
Apportionment in the event of delay by several subcontractors is almost
bound to cause difficulty. Even where the contractor has been able to
calculate the sum which is due from the subcontractor, the provisions for
set-off in the subcontract may frustrate the contractor's ability to deduct
the amounts due from payments which would otherwise be paid to the
subcontractor. The general rule is that the contractor's rights to set-off at
common law are not affected by the contractual provisions unless there is
clear language in the contract to bar the general right of set-off: Gilbert
Ash (Northern) Ltd v. Modern Engineering (Bristol) Ltd [I9741AC 689.
However, where the terms are explicit, and the set-off provisions are exclu-
sively laid down in the subcontract, the contractor's rights to set-off will be
determined by the contractual provisions.
An architect's certificate of delay or non-completion by a nominated sub-
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contractor may be a prerequisite to the contractor's rights to damages from

the defaulting subcontractor under JCT8O. This can be troublesome, par-
ticularly where the architect refuses to give permission to grant an exten-
sion of time (for any reason) to a subcontractor and at the same time will
not issue a certificate of non-completion against the subcontractor: Hong
Kong Teakwood Limited v. Shui On Construction Company Limited
(1984) HKLR 235.
The Shui On case was, however, rather different from most situations
found in the United Kingdom. In the first place, the provision in the Hong
Kong equivalent of JCT63 to permit extensions of time for delay on the
part of a nominated subcontractor had been deleted and, in the second
place, the subcontract between Shui On and Hong Kong Teakwood con-
tained a 'pay when paid' clause. An almost identical situation arose in
Schindler Lifts (H.K.) Ltd v. Shui On Construction Company Limited
(1984) 29 BLR 95. Here, the architect issued a certificate of nontomple-
tion against the contractor, but not against the subcontractor. The employer
deducted liquidated damages from the payment certificates issued in favour
of the contractor after the certificate of non-completion. The payment cer-
tificates included sums in favour of the subcontractor. The contractor argued
that he had not received payment from the employer, and since the oblig-
ation to pay the subcontractor did not arise until such time as payment was
received from the employer, no payment was due to be made to the sub-
contractor. The Court of Appeal in Hong Kong found in favour of the con-
tractor. This did not mean that the subcontractor had no remedy. There
were provisions for arbitration in the principal contract and in the subcon-
tract, and the disputes between the parties were capable of resolution in
arbitration.
The UK Construction Act 1996 outlaws 'pay when paid' in construction
contracts in the UK. Section 113(1)states:
'A provision making payment under a construction contract conditional on the
payer receiving payment from a third person is ineffective, unless that third
person, or any other person payment by whom is under the contract (directly
or indirectly), a condition of payment by that third person is insolvent.'
In addition to claiming all, or part, of the liquidated damages for late
completion of the main works from a defaulting subcontractor, the con-
tractor may also have a claim for other loss and expense, such as prolon-
gation and/or disruption costs incurred by the contractor and by other
subcontractors. The quantification of such claims where there are several
competing delays is bound to be fraught with problems and, unless a
commercial settlement can be reached between the contractor and the
subcontractors, the matter may have to be settled by several separate
arbitrations or by the same proceedings involving several parties.
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Avoidance, Resolution and
Settlement of Disputes
8.1 Commercial Attitude and Policy
Many contractors and subcontractors genuinely wish to avoid claims even

when there are good grounds for them. This attitude is usually adopted in
the belief that firms with a reputation for claims will not be included on
some tender lists, and where they are included, they may be disadvantaged
if tenders are very close. In some sectors of the industry, firms may be jus-
tified in believing that a history of claims will be a dominant feature in the
evaluation of their suitability for new projects. However, provided that the
firm submitting the claim follows some simple rules, there is no reason to
suppose that the pursuit of valid claims is detrimental in the long term.
It is, of course, very helpful if the contractor has done a good job, fin-
ishing as soon as was reasonably possible, and has co-operated with the
employer and the design team. However, if the contractor has submitted a
poor tender, underestimated the complexity and/or under-resourced the
project, his claim may well be seen by the recipient as a means to recover
some of the contractor's losses caused by a poor tender and poor man-
agement. It is quite natural, in these circumstances, for the employer and
his professional advisers to suspect the contractor of employing a pricing
policy to obtain work with the intention of using every possible means to
recover a much larger sum when the project is complete. It is not surpris-
ing if relations between the parties deteriorate almost before the ink on the
first interim payment certificate has dried. Very often, this policy will be
obvious to the design team if the contractor is complaining of late infor-
mation at every opportunity even when it is clear that no delay will be
caused. Every letter will be an attempt to create evidence for a dubious
claim at some future date.
On the other hand, a contractor with a valid claim will be doing himself
no favours if he proceeds reasonably well with the project and co-operates
with the employer and consultants, but hardly mentions the fact that he
intends to submit a claim until the end of the job (usually after he has been
able to persuade the architect, or engineer, to grant a reasonable extension
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of time based on inadequate notices and particulars). Some contractors

adopt this policy purely to maintain good relations or in the hope that a
favourable opinion on extensions of time and/or borderline compliance
with specifications will be forthcoming. It may be expecting too much to
believe that the consultant will form a favourable opinion about a sub-
stantial claim for additional payment when the consultant has not been
given any information to enable the employer to make provision for
payment.
The contractor who does a good job and properly manages the project
will often stimulate the design team to perform well. If, at the same time,
the contractor gives notices and particulars in accordance with the contract,
avoiding provocative language and frivolous claims, then he is more likely
to be able to resolve his claims painlessly.
Even when contractors have, for commercial reasons, made a policy
decision not to submit a valid claim, this policy will be soon reversed if the
employer decides to levy a claim for liquidated damages after an insufficient
extension of time has been granted. Many consultants and employers have
underestimated the potential for the contractor to claim considerable sums
of money when he is forced into a corner. For this reason, the employer's
professional advisers should monitor all potential claims for extensions of
time and additional payment, so that the employer can consider the risks
and advantages of levying a claim for liquidated damages. It may be a better
decision not to levy a valid claim for liquidated damages if the potential
claim from the contractor will far outweigh the claim for liquidated damages.
If the contract contains provisions to bar the contractor's claims (failure t
give notice and the like), the employer's decision to levy liquidated damagc
may not be influenced in the same way.
8.2 Claim Submissions
Unfortunately, the evaluation of claims is not an exact science. The basis

of calculation is dependent on a complex interaction of factors which may
be unique to the project. The contractor's method of pricing, allocation of
prime cost and overheads in the tender and in the accounting practice, pro-
gramme, methods of construction, records, monitoring and control systems
all have a part to play in the evaluation process. If the contractor has an
integrated computerised costing and accounting system with a sensible
allocation of cost codes, the evaluation process may be simplified. If the
accounting system comprises too many categories it may suffer from a
higher incidence of wrongly allocated costs. On the other hand, too few
categories may be of no use, thereby necessitating the laborious task of
searching through all of the source documents.
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Avoidance, Resolution and Settlement of Disputes 227
Whatever the standard of records and management accounts, even if it

is possible to calculate, with precision, the correct amount of the claim, it
is a fact of life that the claim is unlikely to be paid in full. For this reason,
even the most professionally prepared claim will include a measure of over-
valuation as a negotiating margin.
If the contractor has complied with all of the contractual provisions for
claims, the employer's professional advisers may be well advised to settle
them during the course of the project, leaving very little to resolve at the
end. If this cannot be done, the final claim will probably contain a large
negotiating element.
The first submission of a claim requires very careful planning. It must not
contain any information, assumptions or calculations which can be used
against the party submitting the claim. Several alternative approaches may
be necessary in order to establish which is the best and most persuasive
presentation. It is important to carry out several crosschecks to ensure that
the financial data and assumptions can stand up to scrutiny by the recipi-
ent. Whilst there may be justifiable reasons for actual prolongation costs to
far exceed those which it may have been possible to derive from the rates
for preliminaries in the bills of quantities, it is often an uphill battle to per-
suade the recipient that the additional costs are a direct result of matters
for which the employer is responsible. The contractor may be well advised
to anticipate the steps which may be taken by the opposition when scruti-
nising the claim. Reliance upon the recipient's inexperience and lack of
knowledge in the hope of gaining an advantage may be self-defeating. If
there is an element in the claim which is found to be dishonest, then the
remainder of the claim, no matter how well founded, is likely to be treated
with the extra caution which it deserves.
How then, is the contractor to include sufficient margin in his claim to
allow for negotiation and at the same time avoid criticism for appearing to
be disreputable? Should he include elements which are fairly obvious can-
didates for rejection so that they can appear to be the basis of the first com-
promise, leaving the way open for some of the 'grey areas' to be argued
vigorously? It is not unusual for some very dubious elements of a claim to
succeed merely because they are more palatable to the recipient than other
elements which may reflect on the performance of the design team (and
which are rejected).
In spite of the fact that a reputable contractor, or his appointed claims
adviser, will not deliberately wish to submit a claim which contains dubious
elements, they will be aware that it is necessary to include substantial sums
in the claim which are expected to be rejected at some stage of negotia-
tions. In some cases, not all of the dubious elements will be rejected, in
which case the contractor will recover more than that to which he is enti-
tled. In the long term, the contractor may not be any better off because
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many claims will be settled below a sum which reflects his full entitlement.
Unfortunately, some employers will benefit at the expense of others.
The person, or persons, responsible for preparing the claim will have to
establish the basis and quantum of claim which are considered to be correct
in all respects. This will take into account all of the facts and particulars
which are available and reasonable assumptions where they are necessary.
The lowest and highest sums which are likely to be awarded if the matter
should proceed to arbitration should be considered, giving each head of
claim a rating in order of merit. In cases where there is no evidence of con-
current delay and the contractor has excellent records, it may be possible
to quantify prolongation costs with a high degree of certainty. If this is
the case, the likely success factor of this head of claim may be as high
as one hundred per cent. If there is concurrent delay and incomplete
records, the success factor of this head of claim will be reduced accordingly.
Claims for disruption will rarely justify a one hundred per cent chance of
success.
However, such claims which are based on a logical analysis, where cause
and effect are established, will be at the high end of the probability scale.
Claims which tend to be based on a global assessment will normally be at
the lower end of the probability scale. That is not to say that global claims,
in the appropriate circumstances, will not merit a high rating. Some claims
for finance charges will be well founded in contract, or in law, whilst others
may be less likely to succeed. The likelihood of recovering the cost of
preparing the claim may be zero. In some cases this head of claim may be
justified, even if the probability of success is unpredictable.
Having established the likely range of success of the 'real' claim, it will
be necessary to decide how, and to what extent, the negotiatng margin can
be added. This is not an easy task. If experience has shown that some set-
tlements fall below fifty per cent of the original claim, the contractor is faced
with finding plausible methods to double the amount of his first submission.
The idealist will view this process with some distaste. The commercial realist
will know that it is unavoidable and all of his experience and imagination
will be called upon to ensure that the negotiating margin is at least arguable.
Every 'grey area' must be presented as black, or white, depending on
the circumstances. Care should be taken to avoid presenting black as white.
Under no circumstances should contemporary records be changed, or
invented, in order to distort the truth. Dishonesty should be avoided at
all costs. The contractor, or subcontractor, submitting the claim should be
aware of the probable range of success, the nature and quantum of the
negotiating margin, and the strengths and weaknesses of the claim before
submission. Any elements which cannot be argued with at least some
degree of conviction may have to be discarded.
Most contractors, and subcontractors, will wish to reach an amicable set-
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tlement. Some will have decided, before submission of the claim, that under
no circumstances will they take the matter to arbitration if settlement cannot
be reached. This attitude is often brought about by the high cost of arbi-
tration, particularly if previous experience has shown that the unrecovered
costs of arbitration have not been justified in the light of the award. If this
attitude exists, then the negotiating margin is likely to be higher than that
which may otherwise have been added. It is, of course, fatal to let the oppo-
sition discover that arbitration has been ruled out. If the case is sound, the
contractor may be persuaded to contemplate arbitration at the outset (if the
matter cannot be settled). In these circumstances, the negotiating margin
may not be excessive. If there are a number of substantial 'grey areas' in
the claim, some employers (particularly government bodies) may have no
option but to arbitrate, even if there is a willingness to settle. This must be
taken into account at the outset.
Many contractors have the resources and capability to prepare their own
claims. However, even the best organised contractors (including those who
are recognised as being amongst the leading companies in the industry) are
often unable to make the most of their case in a written submission. Whilst
a poor claim cannot be made into a good one, a good claim can easily fail
if it is presented badly. Many good claims fail, at least in part, because the
author of the claim is influenced by staff in the company who have vested
interests in overlooking any shortcomings in the contractor's case and
perhaps by placing too much emphasis on elements of the claim which
have caused dispute throughout the contract. If the contractor's staff have
been advising management that the claim is well founded and worth several
hundred thousand pounds, they will be reluctant to change their view even
in the light of valid counter arguments put forward by the other side.
Many final submissions repeat what has already been said, and rejected,
in numerous exchanges of correspondence over several months. Even if
the contractor is right, it is important to search for alternative arguments
and means of persuasion. This is usually difficult to achieve by staff who
have lived with the project and have fixed ideas on what happened and
who was to blame. In any event, it is good practice to get an independent
view of the strengths and weaknesses of the claim, the likely range of set-
tlement, or award, and expert advice on how it should be presented before
any submission is finalised for dispatch to the opposition. If there is any
potential liability for liquidated or general damages, this should be brought
to the attention of management and taken into account in the overall assess-
ment of the likely recovery.
Once the claim is submitted, the contractor will need to ensure that there
is a response or some other means of moving forward. The covering letter
to the submission should summarise the claim so that any person who is
not familiar with the detail, and who may be making important decisions,
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can appreciate the nature and amount of the claim without reading the
detailed submission and appendices. The letter should invite a reply within
a reasonable specified period. It may be useful to suggest a meeting to
discuss and explain the claim in more detail before a formal reply is
expected.
8.3 Negotiation
If the contractor has a valid case, given notices in accordance with the
contract, kept accurate contemporary records and presented his case in
a logical and professional manner, he will be starting from a position of
strength. If a valid claim is not accompanied by these essential ingredients,
the recipient will have little difficulty in finding reasons to reject it.
Whatever the merits of the claim, the initial response will usually concede
very little. The contents of the response may be positive, giving cause for
optimism, or it may be totally negative, rejecting every aspect of the claim.
The former will enable both sides to move forward, whilst the latter will
form a barrier to any early progress to resolve the matter. If there is no
response at all, or if a negative response cannot be countered by some
means of opening a dialogue, the contractor may have little option but to
commence proceedings. If he has not already obtained advice before sub-
mitting the claim, the contractor should obtain the advice of experts before
taking a decision to initiate formal proceedings.
If the response is positive and negotiations commence, then both parties
may be able to settle the matters reasonably quickly. The contractor must
be wary of employers who are merely going through the motions with no
intention to settle at a reasonable figure. Their tactics will be to find out
what concessions are on the table and to waste time. A delayed settlement
usually means less in real terms, irrespective of any financing element which
may ultimately be included (if any). If there are reasonable grounds to
suspect that the employer is not genuinely seeking a fair settlement, the
decision to commence formal proceedings should be taken sooner rather
than later.
Negotiations may be conducted on an open basis (that is to say that the
records of the negotiations may be used by the parties in any proceedings),
or they may be without prejudice (that is to say that they cannot be referred
to in any proceedings). In most cases, without prejudice negotiations are
more satisfactory as they enable the parties to be more frank and they
facilitate concessions which can be withdrawn if the other party refuses to
make any concession. If there is agreement on any section of the claim,
the contractor should endeavour to persuade the employer to make the
agreement open and certify any sums which ought to flow from it. The
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employer will usually resist on the grounds that he will require an overall
settlement.
From the employer's point of view, he will be prepared for the con-
tractor's claim if he has been informed by his professional team pursuant
to the contractor's previous notices. Even if the contractor has not com-
plied in all respects with the contract to notify the employer's architect, or
engineer, the employer ought to have been made aware of potential claims
by his consultants. If he is properly advised, he will already have an outline
defence to many of the contractor's claims. If the contractual provisions
have been followed to the letter, any sums which are, in the opinion of the
architect, or engineer, due to the contractor, will have been certified and
paid. In practice, in spite of the problems caused by interference by the
employer, the architect, or engineer, may be unable to act freely. This is
sometimes the case where the architect, or engineer, is an employee of the
employer.
Whoever represents the parties at negotiations, it is important to estab-
lish at the outset if they have the authority to make an agreement. Nego-
tiations between staff who are not authorised to finalise an agreement may
be suitable for initial discussions, but serious negotiations to conclude a set-
tlement must be conducted by staff with full authority to agree on all aspects
of the claim. It is particularly important for the contractor to establish
whether, or not, the employer's consultants have such authority (they will
not normally have this authority as part of their usual agreement with the
employer to provide professional services).
If the consultant has such authority, it should be remembered that he
stands to be shot at from both sides. If he wrongly certifies, or negotiates
a settlement, to the detriment of the employer, he may be sued for negli-
gence by the employer. If he wrongly certifies to the detriment of the
contractor, or fails to negotiate a settlement which is satisfactory to the
contractor, he may be exposing the employer to unnecessary costs of arbi-
tration or litigation. Finding the right solution may require a careful and
critical review of the consultant's own conduct during the contract and pos-
sibly acknowledging mistakes which have been made from time-to-time. For
this reason, the employer may be well advised to be represented by an
experienced negotiator who has not been involved with the day-today
administration of the project and who is not tied by previous decisions.
Both parties should decide on the team which will be present to advise
and support the negotiator. The temptation to field a large team should be
resisted. It is important to select a team that is fully conversant with the
matters under negotiation. It should be possible to verify or reject allega-
tions, facts, matters of law or contract, principles of evaluation and the like
by reference to members of the team. The negotiator should decide whether
any difficult points should be discussed in the presence of the other party,
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Third party expert opinion

One of the parties (usually the employer, if he is serious about settlement)
will engage a third party expert to assess the merits and quantum of the
claim. If this process is to succeed in facilitating a move to settle, it is impor-
tant that the expert is given a free hand to come to an impartial view, even
if it means criticism of the party who engaged him. After the expert's initial
assessment, he may be asked to give opinion on the range within which
an arbitrator would probably make an award and on the likely costs of arbi-
tration. This information is invaluable for further negotiations which may
be conducted on a without prejudice basis. If negotiations fail, and pro-
vided that the expert's independent view is likely to be helpful to the case,
he may continue and appear as an expert in arbitration or any other pro-
ceedings which take place to resolve the dispute.
Conciliation
If the parties are really willing to settle, but there are genuine obstacles to
settlement, it may be possible to close the gap between the parties and
facilitate a settlement by the process of conciliation. This method may not
be imposed unilaterally and the agreement of the parties is essential. It
involves the appointment of an independent third party, mutually agreed
by the parties, to hear both parties' points of view. The conciliator will
usually be a recognised expert on the matters in dispute and he will look
at the evidence and listen to the arguments put forward by each side. He
will contribute his own ideas on the merits of the case. He will not meet
any party in private and all discussions take place with both parties present.
The parties may have legal advisers present at any meetings, and they may,
of course, meet each other without the conciliator being present. The con-
ciliator's aim will be to bring the two sides together to discuss all aspects
of the matters in dispute and lead them to an amicable settlement. The con-
ciliator will not make decisions, but he may make recommendations. It is
up to the parties to agree on an acceptable settlement. They are not obliged
to agree, and if settlement cannot be reached, the parties may pursue the
matter in arbitration or litigation.. .
Mediation
This process is similar to conciliation. However, the mediator normally
meets the parties separately and he may be empowered, if the parties
cannot be persuaded to agree, to make a recommendation on the matters
in dispute. Any confidential information which is made available to the
mediator at private meetings with one party cannot be divulged to the other
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party. While not usually being conducted in the formal manner normally
associated with arbitration, mediation proceedings may be conducted with
lawyers and other experts to present each party's case to the mediator. The
mediator will endeavour to find common ground at these separate meet-
ings and he will try to find means of reaching a settlement. A meeting with
both parties present will usually be required at some stage. Whoever r e p
resents the parties at these discussions, it is essential that they have the
authority to agree and settle the dispute. Failing agreement, the mediator
may decide on the matters in dispute. The parties are not normally bound
by the mediator's decision. However, there is no impediment to the par-
ties agreeing, at the outset of these proceedings, to accept the mediator's
decision as final and binding. It is important to consider the nature of the
dispute before agreeing that the mediator's decision is to be final. Disputes
which involve quantum only may be suitable, whereas disputes which
may turn on legal issues would not normally be suitable without a right of
appeal.
Adjudication
Adjudication is a process in which the parties to a dispute submit their cases
to a third party (an individual or a panel) for a decision. This decision is
not binding unless both parties gave their prior agreement that it should
be, or otherwise if the aggrieved party fails to register his dissatisfaction
within a stipulated period. If disputed, the matter can subsequently be
referred to arbitration or litigation. Without a contractual provision in
the contrad, or without the parties' agreement, adjudication cannot be
imposed on any party unless there are provisions in the law to enforce
adjudication.
With the advent of the Housing Grants, Construction and Regeneration
Act 1996 (The Construction Act), mandatory provisions for adjudication
were embodied in English Law (Englandand Wales).Similar laws are applic-
able in Scotland and Northern Ireland.
The Construction Act states in Section 108:
'(1) A party to a construction contract has the right to refer a dispute arising
under the contract for adjudication under a procedure complying with this
section.
For this purpose 'dispute' includes any difference.
(2) The contrad shall -
(a) enable a party to give notice at any time of his intention to refer a
dispute to adjudication;
(b) provide a timetable with the object of securing the appointment of an
adjudicator and referral of the dispute to him within 7 days of such
notice;
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(c) require the adjudicator to reach a decision within 28 days of the refer-
ral or such longer period as is agreed by the parties after the dispute
has been referred;
(d) allow the adjudicator to extend the period of 28 days by up to 14 days,
with the consent of the party by whom the dispute was referred;
(e) impose a duty on the adjudicator to act impartially; and
(f) enable the adjudicator to take the initiative in obtaining the fads and
law.
(3) The contract shall provide that the decision of the adjudicator is binding
until the dispute is finally determined by legal proceedings, by arbitration (if
the contract provides for arbitration or the parties otherwise agree to arbi-
tration) or by agreement.
The parties may accept the decision of the adjudicator as finally determining the
dispute.
(4) The contract shall also provide that the adjudicator is not liable for anything
done or omitted in the discharge or purported discharge of his functions as
adjudicator unless the act or omission is in bad faith, and that any employee
or agent of the adjudicator is similarly protected from liability.'
Standard forms of contract in the UK have now been revised, or sup-
plements issued, to give effect to the provisions required by the Construc-
tion Act. JCT issued its Amendment Number 18 in April 1998, which
included provisions for adjudication, and other institutions such as the ICE
issued similar amendments. Many standard forms have now been com-
pletely updated to include such provisions in the contract. The seventh
edition of the ICE contract contains provisions for conciliation as well as
adjudication.The procedure for adjudication may be laid down in the con-
tract, or it may be set out in a separate document (referred to in the con-
tract as the procedure to be adopted). For example, ICE stipulates that
adjudication shall be conducted under 'The Institution of Civil Engineers'
Adjudication Procedure 1997' or any amendment or modification thereof
being in force at the time of the said Notice [of Adjudication]' (sub-clause
66(6)(a)). However, in the UK, if the parties enter into a contract which
does not contain suitable provisions for adjudication, a party cannot refuse
to have a dispute referred for adjudication by virtue of section 108(5)which
states:
'If the contract does not comply with the requirements of subsections (1)-(4), the
adjudication provisions of the Scheme for Construction Contracts apply.'
The Scheme for Construction Contracts (England and Wales) 1998 con-
tains detailed provisions for adjudication which include a procedure for the
appointment of a n adjudicator. The adjudicator may be named in the con-
tract or he may be agreed by the parties. If the adjudicator is not named,
or if the parties fail to agree on the appointment of an adjudicator, there
is provision for an adjudicator to be appointed by a nominating body named
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in the contract, or if there is no such body named in the contract, by an

adjudicator nominating body.
Internationally, dispute review boards (DRBs) have been common for a
number of years. DRBs carry out a similar function to adjudication. DRBs
are specified as a standard amendment by The World Bank in all contracts
funded by them or by a subsidiary. DRBs have also found favour with a
number of major developers and governments.
The 1999 FIDIC contracts have taken on board the general trend set in
the UK and by the World Bank, and now provide for adjudication in clause
20 (Red, Yellow and Silver Books) and clause 15 (Green Book). The Red,
Yellow and Silver Books contemplate either a single adjudicator or a panel
of three (The Dispute Adjudication Board - DAB). The Green Book requires
a single adjudicator. The DAB may be named in the contract, agreed, or
appointed by the appointing body named in Part I1 of the contract. Any
dispute must be referred to the DAB as a prerequisite to arbitration. In
the case of the Silver Book, a dispute which has become binding (by the
contractor failing to register his dissatisfaction to a determination by the
employer within 14 days in accordance with sub-clause 3.5) may not be
referred to the DAB or to arbitration.
The DAB must give its reasoned decision within eighty-four days (or such
other period as may be agreed) of the reference and, unless a party gives
a notice of dissatisfaction within twenty-eight days of the decision, it shall
be final and binding on the parties. If a valid notice of dissatisfaction has
been lodged, the parties are required to attempt amicable settlement and,
unless the parties agree otherwise, arbitration may be commenced on or
after the fifty-sixth day after the date of the notice of dissatisfaction.
Sub-clause 20.6 of the FIDIC contracts provide for the DAB'S decision
to be used as evidence in arbitration. This does not appear to be conducive
to open and frank disclosure in an adjudication forum.
There are several other methods of resolving disputes, some of which
are variations to the above examples, and some of which are almost akin
to arbitration. Some contracts expressly provide for disputes to be dealt
with by an alternative method, for example the ICE conditions of contract,
seventh edition - clause 66(5). In many contracts, it is often stipulated that
any third party appointed to resolve the dispute by one of these methods
is not eligible for appointment as arbitrator in any subsequent proceedings.
Arbitration
Arbitration in England was governed by the Arbitration Acts of 1950,
1975 and 1979. Different provisions apply in Scotland where the (Scot-
land) Arbitration Act of 1894 is still used for domestic arbitration and the
UNCITRAL Model Law is used for international arbitration (or for domes-
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tic arbitration if the parties agree). In England, the enactment of the Arbi-
tration Act of 1996 swept up most of the previous Arbitration Acts,
however some parts of the 1950 Act are still applicable.
The parties' agreement is essential before any dispute can be settled by
arbitration. Agreement can be made at any time, but it is usual practice for
the agreement to be made at the time of entering into the contract for the
work. Standard forms of contract have express provisions for arbitration in
the articles or in the conditions of contract.
In the event of there being valid arbitration provisions in the contract
which cover the matters in dispute, the parties will generally be prevented
from having the dispute resolved by litigation. However, if one of the parties
commences litigation, and the other party does not, before taking any steps
in the litigation, apply to the courts for a stay of proceedings under Section
9 of the Arbitration Act of 1996 which states:
'(1) A party to an arbitration agreement against whom legal proceedings are
brought (whether by way of claim or counterclaim) in respect of a matter
which under the agreement is to be referred to arbitration may (upon notice
to the other parties to the proceedings) apply to the court in which the pro-
ceedings have been brought to stay the proceedings so far as they concern
that matter.
(2) An application may be made notwithstanding that the matter is to be
referred to arbitration only after the exhaustion of other dispute resolution
procedures.
(3) An application may not be made by a person before taking the appropri-
ate procedural step (if any) to acknowledge the legal proceedings against
him or after he has taken any step in those proceedings to answer the s u b
stantive claim.
(4) On an application under this section the court shall grant a stay unless
satisfied that the arbitration agreement is null and void, inoperative, or in-
capable of being performed.'
then the dispute may be settled by litigation.
If, before taking any steps in the litigation, an application to stay the
proceedings is made, then provided that the applicant is ready and willing
to have the dispute settled by arbitration, the power to order a stay of pro-
ceedings is usually exercised. A stay of proceedings may be refused for the
following reasons:
the arbitration agreement does not contain provisions for immediate
arbitration;
the matters in dispute do not fall within the ambit of the arbitration
agreement;
a there would be undue hardship on the plaintiff if the stay were granted;
the only matter to be decided in the dispute was a question of law;
a fraud is alleged;
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if there would be two separate sets of proceedings requiring resolution

based upon the same facts, one of which would be settled in the courts,
and the dispute which was the subject of the application for a stay (if no
stay were granted) would be settled in arbitration.
Until recently it was thought that the courts did not have the same powers
as an arbitrator and they could not open up, or recover, an architect's cer-
tificate: North West Regional Health Authority v. Derek Crouch [I9841
2 WLR 676. Some forms of contract do not restrict the power of the courts.
The Singapore Institute of Architect's form of contract expressly states that
the courts shall have the same powers as an arbitrator - clause 37(4).The
Courts and Legal Services Act 1990 provides that the High Court may,
if all parties agree, exercise the same powers as those conferred upon an
arbitrator (section 100, giving effect to an additional section 43A in The
Supreme Court Act 1981). Other important matters to be considered are
the facts that arbitration is held in private and the costs are likely to (but
not necessarily) be less than litigation.
The decision in North West Regional Health Authority v. Derek
Crouch has since been overtaken by a House of Lords' decision in the case
of Beaufort Developments Ltd v. Gilbert Ash NI Ltd and Others [I9981
2 All ER 778, in which it was held that under a JCT contract, architects'
certificates could be reviewed by any tribunal including the courts. The
Crouch decision was therefore decided wrongly.
When one of the parties has decided to refer a dispute to arbitration,
the most important decision is to select the most appropriate arbitrator. If
the resolution of the dispute is likely to turn on questions of law, a legally
qualified arbitrator may be the best choice. Section 9 3 of the Arbitration
Act 1996 provides for a judge of the Commercial Court or an official
referee to accept an appointment as a sole arbitrator or umpire by virtue
of an arbitration agreement, if the Lord Chief Justice is satisfied that the
judge or official referee can be made available. If the dispute is mainly to
do with technical matters, then a technical arbitrator may be more appro-
priate. If the parties agree, a legal assessor, or a technical assessor, can be
appointed to facilitate resolution of the dispute. However, the arbitrator
must make his own decision, whatever the advice given by the assessor.
If the parties cannot agree on the arbitrator, there is provision in most
standard forms of contract for an appointing body (stipulated in the con-
tract) to appoint an arbitrator. Failure to agree on an arbitrator is usually
caused by the respondent's desire to delay the proceedings. The disadvan-
tage of having an arbitrator appointed by a third party is that the appointed
arbitrator may be a person which neither party would have selected. There
may, of course, be valid reasons to object to the other party's choice of
arbitrator:
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there may be a conflict of interest (this would in any event be brought

to the attention of the parties by the arbitrator);
the arbitrator may have a reputation for deciding the matters in dispute
against the interests of the objecting party (in some cases, the arbitra-
tor's views are well known from published works);
a the arbitrator may have a reputation for poor control of arbitration pro-
ceedings, thereby permitting delays to occur and costs to increase (a
reluctant party may prefer such an arbitrator).
Some forms of contract specify the procedure to be used in the arbitra-
tion. The most common procedures in use in the construction industry are
the ICE Arbitration Procedure (1997)and the CIMAR (Construction Indus-
try Model Arbitration Rules) for use with JCT contracts.
Foreign arbitration (domestic arbitration in foreign countries) is usually

subject to local rules set by the local chamber of commerce or arbitration
centre. In international contracting, it is common for the arbitration agree-
ment to require arbitration proceedings to be governed by a recognised
international set of rules.
Foreign arbitration subject to local rules

International firms operating in foreign countries may find themselves in
disputes which will be resolved according to local rules and law.
Kuwait
Until recently, arbitration under ICC (International Chamber of Commerce)
Rules was common in Kuwait. However, administrative contracts between
contractors and government departments are more likely to contain provi-
sions for disputes to be referred to the local courts. This process is likely
to be costly, requiring all documents to be translated into Arabic (even if
the language of the contract and/or correspondence and records are in
English). The proceedings will usually be conducted in Arabic. Court fees
are required for all proceedings. A judge would normally submit technical
issues to the Department of Experts to report on their findings. Appeals
are possible to the High Court of Appeal or to the Courts of Cassation.
Some contracts in Kuwait may be subject to local arbitration.
Bahrain
Settlements in Bahrain are often referred to arbitrators appointed by the
Minister of Justice and Islamic Affairs. However, in most commercial con-
tracts, it is not unusual to have a locally appointed arbitration committee
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comprising one arbitrator appointed by one party, one by the other party
and a third (the chairman) by agreement of the two appointed members.
The principal centre for commercial arbitration is the Bahrain Chamber of
Commerce and Industry (BCCI).
United Arab Emirates

The principal Emirates of Dubai, Sharjar and Abu Dhabi rely to varying
degrees on the Shari'a (ancient Islamic law), commercial practice and statu-
tory provisions. Commercial arbitration in Dubai is usually conducted under
the auspices of the Dubai Chamber of Commerce and Industry. Western
practices are followed in most cases. Clause 67.3 of the Dubai Municipal-
ity's conditions of contract provides for each party to appoint a member to
the tribunal within forty-two days of the notice to commence arbitration.
The third member is to be mutually chosen by the two appointed members.
If the parties fail to appoint members to the tribunal, they shall be appointed
by the Dubai Chamber of Commerce and Industry.
Hong Kong
Hong Kong arbitration is based mainly on the English Arbitration
Acts embodied in the Hong Kong Arbitration Ordinance, Chapter 341
(for domestic arbitration). From April 1990, Hong Kong adopted the
UNCITRAL Model Law (for international arbitration). A number of
changes have taken place since 1July 1997 to take account of the 'Basic
Law' following transfer of sovereignty to China.
International arbitration
International arbitration is the private adjudication of commercial disputes
with international aspects and/or internationally diverse parties. It includes
both 'ad hoc' and 'institutional' arbitration.
Ad hoc arbitration is administered and conducted in a manner speci-
fically designed by the parties. Institutional arbitration is administered by
organisations such as the International Chamber of Commerce (ICC) and
the United Nations Commission on International Trade Law (UNCITRAL)
pursuant to their published rules and procedures.
The ICC Rules are perhaps the most commonly used procedure in inter-
national construction contracts. The place of arbitration is fixed by the Court
unless agreed by the parties (Article 14). However, it is usual (unless the
contract provides otherwise) for the arbitration to be held where the chair-
man of the tribunal resides (or where the single arbitrator resides if only
one arbitrator is required). The ICC usually appoints a chairman from a
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country other than those from which the parties are nationals (unless
otherwise agreed by the parties).
However, in recent years, the greater flexibility of the UNCITRAL Arbi-
tration Rules has led to an increasing acceptance of these Rules for ad hoc
arbitration. In the UK, the London Court of Arbitration Rules are based
on the UNCITRAL Model and they also allow for the parties to agree to
arbitration under the UNCITRAL Arbitration Rules with the London Court
acting as administrator. A number of countries now embody the UNCITRAL
Model Law as part of their arbitration machinery, for example Scotland,
Hong Kong, USA, Canada and Australia. Provision to opt out of the
UNCITRAL Model Law is normally available by agreement between the
parties.
Arbitration procedure
In the absence of a specified procedure in the contract, the arbitration in
the UK will probably include the following stages:
Preliminary meeting
This will formalise the appointment of the arbitrator and a preliminary
timetable will usually be drawn up. If the parties can agree a timetable in
advance, this will save time and cost of the meeting.
Pleadings
These set out the matters in dispute, the facts and the contractual and legal
provisions relied upon. The sequence is as follows:
claimant submits points of claim;
respondent submits points of defence and counter-claim (if any);
claimant submits points of reply to the defence and defence to counter-
claim;
respondent submits points of reply to defence to counter-claim.
Discovery of documents
After close of pleadings, each party is required to prepare lists of docu-
ments for inspection by the other party. In most disputes, discovery may
be limited to documents which are relevant to the issues in dispute. In some
cases, all documents may have to be disclosed (general discovery). Docu-
ments which must be disclosed include those relied upon by the parties and
any other documents which may be detrimental to the case, or of assis-
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tance to the other party's case. There is a strict duty to disclose any and
all material, no matter how much it may be against the interests of the party
having possession, power, or control over the documents. Privileged docu-
ments (without prejudice correspondence and certain documents which
pass between the parties and their legal advisers) should also be listed, but
they should not be made available for inspection by the other party.
Inspection of the other party's documents is an important process, and
should be done by someone who is experienced and knowledgeable about
the matters in dispute. It is equally important to look for anything which is
missing, but which should exist. A list of documents which are required
should be made and a request for copies should be sent to the other party.
Agreed bundles
After collecting all of the relevant documents, those documents which will
be referred to in the hearing are collected and filed in a logical sequence
in several bundles. Normally the claimant will prepare the bundles, and the
respondent will be given the opportunity to add further documents. The
completed files are known as 'agreed bundles'.
Witnesses: proofs of evidence

Witnesses of fact will have an important part to play, particularly if there
are gaps in the written evidence. It is important that such witnesses should
be selected for their first hand knowledge of the matters about which they
will be asked to give evidence. They should be properly briefed on the rel-
evant part of the case and they should be cross-examined as early as pos-
sible (preferably before pleadings) to ensure that their recollection of facts
is consistent with the case pleaded. Considerable harm can be done if plead-
ings have been exchanged, only to find out a few weeks before the hearing
that an important allegation is not supported by facts which come to light
during cross-examination of a witness.
Expert witnesses may be called to give evidence on technical matters or
on the quantum of a claim. The arbitrator may limit the number of experts
to be called. The chosen expert may have played a part in the presenta-
tion of the claim, in which case some of the arguments and amounts
claimed may have been those put forward by the expert. If this is the case,
care should be taken to ensure that the expert addresses his mind to every
issue which is open to alternative arguments or methods of calculation. For
example, the expert may be fully convinced that the records and facts are
sufficient for him to stand firmly by his view of rates for variations or the
costs of prolongation. In these circumstances, his evidence on these issues
may be valuable at the hearing. On the other hand, if there are concurrent
delays, or if he has quantified the cost of disruption, there are bound to be
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ranges within which the probable cost would fall. In these circumstances,
the expert would be abusing the process if he attempted to stand firmly by
calculations which were at the extreme end of the range that favoured the
party putting him forward as an expert.
If an expert is to command respect and maintain credibility and integrity,
he must resist any pressure from his employer, or from his employer's legal
advisers, to advance opinions which he does not truly hold. An expert
should advance the same opinion whichever party he is representing
and this should be tested in 'mock cross-examination' before the hearing.
If there is any doubt about the expert's integrity and ability to stand up to
cross-examination, he should be withdrawn.
Proofs of evidence by witnesses of fact and expert witnesses may be
exchanged before the hearing. This can be useful, particularly if it is used
as a means to agree facts and figures before the hearing commences.
The hearing
The hearing often follows similar lines to court proceedings except that it is
normally less formal. Hearings are normally held at a neutral venue, such as
a hotel, but there is no reason why they should not be held at the offices of
one of the parties. The arbitrator formally opens the hearing, followed by:
the opening address given by the claimant which sets out the issues, the
evidence supporting the claimant's case and any submissions on the law
which may be relevant;
presentation of claimant's witnesses; examination of witnesses on oath
by the claimant;
cross-examination of claimant's witnesses by the respondent;
re-examination of claimant's witnesses by claimant;
respondent's opening address;
presentation of respondent's witnesses; examination of respondent's
witnesses by respondent;
cross-examination of respondent's witnesses by claimant;
re-examination of respondent's witnesses by respondent;
respondent's closing address;
claimant's closing address.
The hearing may take one or two days, or it may consist of several hear-
ings over several months. Some hearings may deal with particular issues in
dispute, and some may deal with purely procedural matters.
The award
The arbitrator will usually reserve judgement until some weeks after the
hearing. The rules governing the arbitration may contain a time limit within
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which the award must be given. The award is final and binding on the
parties, subject to a limited right of appeal pursuant to Section 6 9 of the
Arbitration Act 1996. In the case of domestic arbitrations, Section 8 7 of
the Act provides for the parties to exclude the jurisdiction of the courts only
if the parties' agreement was made after the commencement of arbitration.
The power to award costs is given by Section 61 of the Arbitration Act
of 1996. Where there is only partial success and/or where there are par-
tially successful counter-claims, the apportionment of costs may be com-
plicated. In simple cases, the award of costs is normally in favour of the
successful party. However, the conduct of the parties may be taken into
account when awarding costs. If an offer of settlement is made during the
course of the arbitration, this may be taken into account when awarding
costs. In Tramountana Armadors SA v. Atlantic Shipping Co., SA [I9781
2 All ER 870, the court determined that if the claimant receives no more
in the arbitration award than it was offered by the respondent before the
award, then costs are assessed against the claimant.
In international arbitration and in many foreign jurisdictions, the process
of setting out the parties' cases does not normally involve pleadings in the
same way as it does in the UK. Written submissions, requests, answers to
requests, statements of claim and counter-claims are included in the normal
exchanges of documents.
In complex cases, the proceedings may be almost as formal as court
proceedings. However, as arbitration is intended to be a relatively quick and
inexpensive means of settling disputes, the parties should consider every
means of simplifying the manner in which the issues are put before the
arbitrator. The following quotations should be taken seriously:
'One of the reasons for going to arbitration is to get rid of the technical rules of
evidence and so forth.' - Lord Denning in GKN Centrax Gears Ltd v. Malbro
Ltd [I9651 2 Lloyds LR 555
'It will be observed that on this occasion the arbitration machinery of the asso-
ciation operated with commendable speed. That may have been because no
lawyers were involved.' - Michael I. Warde v. Feedex International, Inc. I19841
1 Lloyds LR 310
Whatever the means of settling disputes, the party who has administered
the contract properly, and kept good records, will be much better placed
to obtain a favourable result than the party who has barely managed to
comply with the basic requirements of the contract.
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8.5 Enforcement of Foreign Awards
International disputes across national boundaries

Arbitration enables the parties to settle international disputes across na-
tional boundaries without the unnecessarily high costs which may otherwise
arise in various jurisdictions. If the arbitration is structured properly in the
contract, the results usually prevent recourse to multiple courts, appeals and
extended enforcement procedures. It is important that the award is final
and binding as well as being enforceable across international boundaries,
otherwise the final resolution to the dispute may involve separate courts,
lawyers in several countries and repeats of the process in numerous appeal
forums. Separate proceedings for seeking enforcement of a judgement can
substantially escalate the cost of resolving such disputes. The parties may
have to consider the unpredictability of the final results. Many countries do
not necessarily recognise judgements issued in another country.
The 'New York Convention' on the Enforcement of

International Awards
The United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards, 1958 (the 'New York Convention') is recognised
by many, but not all, countries. Contracting states include Australia, India,
Japan, Korea, Philippines, Thailand, USA, most Western countries and
some eastern European countries. Some countries accede to the Conven-
tion subject to reservations. For example, Kuwait acceded to the Conven-
tion in March 1978, subject to the reservation that it would only be applied
to awards made in territories of other contracting states. The UAE did not
accede to the Convention, but signed a treaty between members
of the Arab League. Bahrain has no formal treaty with respect to the
enforcement of foreign awards. However, many states (including Bahrain)
subscribe to the general policy that they will enforce an award made in any
country which, in turn, enforces any award made in the respective state
(reciprocity).
The main exceptions to the obligation to enforce foreign arbitral awards
under Article V of the Convention are:
Under paragraph I
(a) If the parties were under some incapacity to contract or the agreement
was not valid under the law to which the parties made it subject (the
substantive law or law of the contract)
(b) If a party was not given a proper opportunity to present his case
(c) If the award deals with matters not submitted to arbitration
(d) If the composition of the arbitral authority or the procedure was not in
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accordance with the agreement of the parties or with the law of the
country where the arbitration took place
(e) If the award is not binding or has been set aside or suspended by a
competent authority.
Under paragraph 2
(a) If the subject matter or difference is not capable of settlement by arbi-
tration under the laws of the county where enforcement is sought
(b) The recognition or enforcement of the award would be contrary to
public policy of the county where enforcement is sought.
Most institutional rules of arbitration specially permit either party to apply
to a court for interim relief (awards). In the absence of such a provision,
the parties may well be able to seek interim relief from the arbitrator or
tribunal. These interim awards may, under the New York Convention,
be enforceable in the courts, however the delays involved in appointing
the arbitrators and then obtaining interim relief may well be sufficient to
dissuade the parties to seek interim relief:
'Settle matters quickly with your adversary who is taking you to court. Do it while
you are still with him on the way, or he may hand you over to the judge, and
the judge may hand you over to the officer, and you will be thrown into prison.
I tell you the truth, you will not get out until you have paid the last penny.'
[Matthew 5: 25, 26 NN]
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Appendix A: Sample Claim
for Extension of Time and
Additional Payment
Introduction to the Example
The sample claim which follows is for an extension of time and reim-
bursement of loss and/or expense arising out of the delays (Dl), (D2), (D3)
and (D4) shown in Figure 5.9 in Chapter 5. Phased completion has been
introduced into the example as a result of which additional activities have
become critical.
For simplicity, the claim deals with the subject matter in the main nar-
rative. In practice, particularly for complex claims dealing with many issues,
more use would be made of appendices (summarising notices of delay and
the like). Copies of relevant correspondence (referred to in the claim), s u p
porting documents, particulars and detailed calculations would also normally
be given in an appendix. This example does not contain such appendices
(except for programmes and illustrations) but it is assumed that they are
submitted.
In this example, clauses referred to in the form of contract are often
paraphrased. It is sometimes more appropriate to quote the clauses
verbatim.
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The Claim Submission
Covering letter from Better Builders Ltd (the contractor) to T. Square (the
architect):
Date 2 April 2001
Dear Sir,
Re: ABC Stores and Depot, New Road, Lower Hamstead, Wilton
Further to our letter of 22 August 2000 requesting a review of exten-
sions of time, our letter of 12 September 2000 giving particulars of
loss and/or expense and our letter of 11 February 2001 requesting a
copy of the draft final account, to which we have had no response,
we enclose herewith our claim for extensions of time, reimburse-
ment of loss and/or expense and damages.
Please note that the contents of this submission do not contain any
particulars (with the exception of rates for finance charges for the
period after 12 September 2000) which have not been submitted to
you previously in correspondence referred to therein. It is our under-
standing that you have all information necessary for the preparation
of the final account and we can see no reason why it should not have
been issued prior to this letter.
Our claim is for further extensions of time of two weeks for section
A and the works (up t o the dates of practical completion) and for
reimbursement of loss and/or expense and/or damages for the
amount of £90637.42 (including finance charges on liquidated
damages).
We are also requesting the issuance of a certificate of making good
defects, a statement pursuant to clause 30.6.1 of the contract (includ-
ing all adjustments mentioned in the submission), release of reten-
tion of £21010.00, release of liquidated damages amounting to
£63000.00 and a final certificate pursuant t o clause 30.8 of the
contract.
Your early response would be appreciated.
Yours faithfully
For and on behalf of Better Builders Ltd
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Appendix A 249
Better Builders Ltd

Scaffold Road
Hamstead Rise, Wilton
Manufacturing plant and associated works at

New Road, Lower Hamstead, Wilton
for
ABC Industries Ltd
Factory Lane, Hamstead Rise, Wilton
Claim for extensions of time and

reimbursement of loss and/or expense
and/or damages and repayment of
liquidated damages
Architect: T. Square of Drawing Board and Associates

Design Avenue, Hamstead Rise, Wilton
2 April 2001
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Claim for extensions of time for completion of the works and section
A, reimbursement of loss and/or expense and/or damages and repay-
ment of liquidated damages.
1.0 Introduction.
1.1 The parties.

1.1.1 The employer is ABC Industries Ltd of Factory Lane, Ham-
stead Rise, Wilton.
1.1.2 The architect is T. Square of Drawing Board and Associates,
Design Avenue, Hamstead Rise, Wilton.
1.1.3 The quantity surveyor is R.E. Measure of The Manor, Billings-
gate Road, Hamstead Rise, Wilton.
1.1.4 The contractor is Better Builders Ltd of Scaffold Road, Ham-
stead Rise, Wilton.
1.2 The works.

1.2.1 The works comprise the alteration of an existing stores build-
ing into a manufacturing plant for motor parts including the
construction of a new access road, drainage, diversion of ser-
vices and landscaping at ABC Stores and Depot, New Road,
Lower Hamstead, Wilton.
1.3 The tender and the contract sum.

1.3.1 The contractor submitted his tender on 10 January 2000 for
the sum of £827333.00. It was a condition of the contractor's
tender that work would be permitted on weekends and public
holidays and that the employer would undertake t o ensure
the presence of the architect or his representative on such
days where it was necessary for the supervision and admin-
istration of the contract.
1.3.2 The employer unconditionally accepted the contractor's
tender by letter dated 25 January 2000.
1.3.3 The contract sum in article 2 of the agreement is £827333.00.
1.4 The contract.

1.4.1 The contract is the Standard Form of Building Contract, 1998
Edition, Private with Quantities, issued by the Joint Contracts
Tribunal and incorporating the Sectional Completion Supple-
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Appendix A 251
ment 1998 edition. The following amendments have been

made to the standard conditions of contract:
1.4.1.1 Sub-clause 1.3 - Definitions.
Definition of Section A - 'Completion of all alterations in the
existing store building to such state as (in the opinion of the
architect) to enable the employer to commence installation
of plant and equipment.'
1.4.1.2 Sub-clause 25.4.2 (relevant event - exceptionally adverse
weather conditions) has been deleted.
1.4.2 The relevant particulars in the appendix to the contract are
as follows:
1.4.2.1 Clause 1.3 Dates for completion
- Twenty-two weeks after the date of possession.
1.4.2.2 Clause 17.2 Defects liability period
- Six months.
1.4.2.3 Clause 22.1 Insurance of the works
- Alternative C applies.
1.4.2.4 Clause 23.1.1 Date of possession
- Seven days after the architect's written instruction to take
possession of the site.
1.4.2.5 Clause 23.1.2Deferment of the date of possession
- Does not apply.
1.4.2.6 Clause 24.2 Liquidated and ascertained damages
- f2500.00 per day.
1.4.2.7 Clause 30.4.1.I Retention percentage
- Five per cent.
1.4.2.8 Clauses 38'39 and 40 Fluctuations
- Clause 38 shall apply.
1.4.3 The relevant particulars in the appendix t o the sectional com-
pletion supplement are as follows:
1.4.3.1 Clause 2.1 Section of the works
- Section A as described in clause 1.3 of the conditions of
contract.
1.4.3.2 Clause 18.1.5 Section value
- f525000.00.
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1.4.3.3 Clauses 17, 18, 30 Defects liability period

- Six months.
1.4.3.4 Date of possession of section
- On the date of possession in clause 23.1 .Iof the conditions
of contract.
1.4.3.5 Date for completion of section
- Sixteen weeks after the date of possession.
1.4.3.6 Rate of liquidated and ascertained damages for section
- £2000.00 per day.
1.5 The programme:

1.5.1 The contractor's original programme for completion of the
works is shown in appendix I hereto (see Figure A.1).
1.5.2 The activities forming section A are F-GI B-G and G-H.
2.0 Summary of Facts:
2.1 Possession of site: commencement and completion of the

works.
2.1.1 On 7 February 2000, the architect gave written notice t o the
contractor to take possession of the site on 14 February 2000.
2.1.2 The contractor took possession of the site and commenced
work on 14 February 2000.
2.1.3 Pursuant to clause 3.1 of the conditions of contract, the sec-
tional completion supplement (and the relevant appendices)
and the architect's written instruction of 7 February 2000, the
dates for completion were:
2.1.3.1 Section A - 4 June 2000.
2.1.3.2 The works - 16 July 2000.
2.1.4 Practical completion occurred on the following dates:
2.1.4.1 Section A - 25 June 2000 (Architect's certificate of practical
completion dated 11 August 2000).
2.1.4.2 The works - 6 August 2000 (Architect's certificate of practical
completion dated 11 August 2000).
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Appendix A 253
2.2 Delay and extensions of time:

2.2.1 The contractor gave the following notices of delay and par-
ticulars pursuant to clause 25 of the conditions of contract:
2.2.1.1 Letter dated 20 March 2000 [week 61 - Notice of delay as a
result of exceptionally adverse weather conditions affecting
activity B-E (Delay Dl).
2.2.1.2 Letter dated 23 March 2000 [week 61 - Notice of delay as a
result of architect's instruction no 1 (issued 20 March 2000)
t o alter work partially completed to activity 6-G (Delay D2).
2.2.1.3 Letter dated 11 April 2000 [week 91 - Particulars of delay
caused by architect's instruction no 1.
2.2.1.4 Letter dated 4 April 2000 [week 81 - Notice of delay as a result
of revised and additional work to activity B-G shown on
drawings ADl14A and ADl15A issued on 3 April 2000 [week
81 (Delay D3).
2.2.1.5 Letter dated 28 June 2000 [week 201 - Particulars of delay
caused by the issuance of drawings ADl14A and ADl15A.
2.2.1.6 Letter dated 12 July 2000 [week 221 - Notice of delay as a
result of late issuance of instructions on the expenditure of
the PC sum for work to be done by a nominated subcontrac-
tor on activity H-K (Delay D4).
2.2.1.7 Letter dated 7 August 2000 - Particulars of delay caused by
late issuance of instructions on the expenditure of PC sum
(see 2.2.1.6 hereof).
2.2.1.8 Letter dated 22 August 2000 - Letter requesting the architect
t o review his extensions of time for section A and the works
pursuant to clause 25.3.3 of the conditions of contract and
giving further particulars.
2.2.2 The architect has made the following extension of time for
completion of the works pursuant t o clause 25 of the condi-
tions of contract:
2.2.2.1 Certificate reference EOT 1 dated 14 August 2000 [week 271
Section A - Extension of time of one week as a result of the
additional work to activity B-G shown on drawings ADl14A
and ADl15A (Delay D3), giving a revised completion date of
11 June 2000.
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2.2.2.2 Certificate reference EOT 2 dated 14 August 2000 [week 271

The works - Extension of time of one week as a result of the
late issuance of instructions for the expenditure of PC sums
(Delay D4), giving a revised completion date of 23 July 2000
[week 231.
2.2.2.3 At the date of this submission, the architect has not given a
written response to the contractor's request of 22 August
2000 (see 2.2.1.8 hereof).
2.3 Certificates of non-completion.

2.3.1 Pursuant to clause 24.1 of the conditions of contract, the
architect issued certificates of non-completion dated 14
August 2000 certifying that the contractor had not completed:
Section A - by the extended date of completion of 11 June
2000.
The works - by the extended date of completion of 23 July
2000.
2.4 Direct loss and/or expense:

2.4.1 The contractor notified the architect, pursuant to clause 26 of
the conditions of contract, that the regular progress of the
works had been affected and that he had incurred, and was
continuing to incur, direct loss and/or expense as follows:
2.4.1.1 Letter dated 30 May 2000 [week 161- As a result of delays to
activity B-G (Delays D2 and D3).
2.4.1.2 Letter dated 27 June 2000 [week 201 - Further disruption of
the regular progress of the works as a result of delay to activ-
ity B-G (Delay D3) and as a result of late nomination of the
subcontractor for activity H-K (Delay D4).
2.4.2 By letter dated 14 August 2000, the quantity surveyor
requested further particulars from the contractor in support
of his application for reimbursement of direct loss and/or
expense.
2.4.3 On 12 September 2000, the contractor provided the further
particulars requested by the quantity surveyor on 14 August
2000.
2.4.4 At the date of this submission, no sums for loss and/or
expense have been ascertained and no further requests for
particulars have been made by the architect or quantity
surveyor.
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Appendix A 255
2.5 Payment and final account:

2.5.1 The latest certificate issued prior to the date of this submis-
sion is interim payment certificate no 6 dated 14 August 2000
showing the following amounts:
2.5.1.1 Gross value of work at practical completion £840400.00.
2.5.1.2 Retention £21 010.00.
2.5.1.3 Nett amount due
2.5.1.4 Previous certificates
2.5.1.5 Amount due for payment
2.5.2 On 15 August 2000, the employer notified the contractor pur-
suant to clause 30.1.1.4 that it would withhold the amount of
£63000.00 as liquidated damages from the amount due pur-
suant to certificate no 6 dated 14 August 2000.
2.5.3 The employer has paid the amount certified as being due
for payment in interim payment certificates, less liquidated
damages in the sum of £63000.00. The nett payment made
after deduction of liquidated damages was £31 190.00.
2.5.4 On 12 February 2001, the contractor requested a copy of the
final account showing the value of work executed including
all adjustments to the contract sum and amounts for nomi-
nated subcontractors and suppliers.
2.5.5 At the date of this submission, no final account has been
issued t o the contractor.
2.6 Defects:
2.6.1 On 8 January 2001, the architect issued a schedule of defects
pursuant to clause 17.3 of the conditions of contract and
instructed the contractor to make good the said defects.
2.6.2 On 12 February 2001, the contractor notified the architect that
he had rectified all defects notified by the architect in his
schedule of 8 January 2001 and he requested a certificate of
making good defects pursuant t o clause 17.4 of the condi-
tions of contract.
2.6.3 At the date of this submission, no certificate of making good
defects has been issued.
3.0 Basis of claim:

3.1 The contract contained the following provisions:
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3.1.1 Clause 5.4.2 requires the architect to provide further draw-

ings and details sufficently in advance of when the contrac-
tor needs such drawings or details.
3.1.2 Clause 13.5 - If compliance with an instruction substantially
changes the conditions under which any other work is exe-
cuted, then such work shall be treated as if it had been the
subject of an instruction of the architect requiring a variation
under clause 13.2. Provided that no allowance shall be made
under clause 13.5 for any affect on the regular progress of
the works or for any other direct loss and/or expense for
which the contractor would be reimbursed by payment under
any other provisions in the conditions of contract.
3.1.3 Clause 17.4 -When in the opinion of the architect any defects
or other faults which he may have required be made good
under clauses 17.2 and 17.3 (defects occurring in the defects
liability period), he shall issue a certificate to that effect and
the said defects shall be deemed t o have been made good
on the day named in such certificate.
3.1.4 Clause 24.2.2 - If, under clause 25.3.3, the architect fixes a
later completion date the employer shall repay to the con-
tractor liquidated damages allowed under clause 24.2.1 for
the period up to such later completion date.
3.1.5 Clause 25 - The contractor shall give notice and particulars
of delay and shall be entitled t o a fair and reasonable exten-
sion of time for completion if completion of the works (andlor
section) are delayed by the following relevant events (speci-
fied in clause 25.4);
3.1.5.1 - compliance with architect's instructions under clause 13.2
(variations) - clause 25.4.5.1;
3.1.5.2 - failure of the architect t o comply with clause 5.4.2 (clause
25.4.6.2);
3.1.6 Clause 26 - If the contractor makes written application to the
architect stating that he has incurred or is likely to incur direct
loss and/or expense for which he would not be reimbursed
under any other provision in the contract due to the regular
progress of the works or any part thereof being materially
affected by:
3.1.6.1 - failure of the architect to comply with clause 5.4.2 (clause
26.2.1.2);
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Appendix A 257
3.1.6.2 - architect'sinstructions issued under clause 13.2 requiring a

variation (clause 26.2.7);
and provided that his application was made as soon as pos-
sible after it has become, or should reasonably have become,
apparent t o the contractor that the regular progress of the
works or any part thereof had been or is likely to be affected,
and the contractor has in support of his application upon the
request of the architect submitted such information as should
reasonably be necessary t o enable the architect t o form an
opinion, and
the contractor has submitted to the architect or quantity sur-
veyor upon request such details of loss and/or expense as
are reasonably necessary for ascertainment,
then the architect or the quantity surveyor shall ascertain the
amount of such loss and/or expense and the amount ascer-
tained shall be added to the contract sum (clauses 26.1 and
26.5).
3.1.7 Clause 30 - Half of the retention percentage may be deducted
from the amount which relates to work which has reached
practical completion (clause 30.4.1.3) and the remaining half
shall be released upon issuance of the final certificate, which
shall be issued no later than two months after whichever of
the following occurs last (clause 30.8):
3.1.7.1 the end of the defects liability period;
3.1.7.2 the date of the issue of the certificate of making good defects
under clause 17.4;
3.1.7.3 the date on which the architect sent a copy to the contractor
of any ascertainment under clause 30.6.1.2.1 (loss and/or
expense) or statement under clause 30.6.1.2.2 (all adjust-
ments to the contract sum).
3.2 The above provisions apply to the works and sections A
(sectional completion supplement).
3.3 Without prejudice to the contractor's rights to claim damages
under the general law (clause 26.61, save as provided in 3.3.1
and 3.3.2 hereof, the contractor's claim is made pursuant to
the provisions on the contract hereinbefore mentioned.
3.3.1 The contractor is entitled to interest on liquidated damages
which shall become repayable to the contractor pursuant
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to a revised extension of time made by the architect -

Department of Environment for Northern Ireland v. Farrans
(1981) 19 BLR 1.
Where the contractor complies with his obligations with
respect to information and particulars for the purposes of
preparing the final account and all adjustments to be made
to the contract sum, if the architect or quantity surveyor fail
t o prepare such final account or make all necessary adjust-
ments as aforesaid, the contractor is entitled to reimburse-
ment of the cost incurred in preparing such adjustments -
James Longley & Co Ltd v. South West Regional Health
Authority (1985) 25 BLR 56.
4.0 Details of Claim:

4.1 Introduction.
4.1.1 The contractor's programme for completion of the works and
section A within the periods for completion is shown in
appendix I (A.1) hereto. Activities A-B to J-K are critical for
completion of the works in twenty-two weeks. Activities A-B
to E-F, F-G and G-H are critical for completion of section A
in sixteen weeks. Activities B-C t o D-H and H-K are not crit-
ical, and will not become critical until all of the float shown
on the contractor's programme has been used up by delays
to these otherwise non-critical activities.
The causes of delay referred to in this section are delays
which entitle the contractor t o an extension of time, or, if no
extension of time is permitted for delay by such cause (as
in the case of exceptionally adverse weather conditions),
the contractor would be entitled to an extension of time for
other causes of delay which used the float in the programme
as a result of which otherwise non-critical activities became
critical and caused delay to completion of the works (or
section).
-
4.2 Exceptionally adverse weather conditions Delay (Dl).
4.2.1 Activity B-E is for the construction of a surface water culvert
under the new access road.
4.2.2 The contractor completed the preceding activity (A-B) on pro-
gramme and was proceeding with the construction of activ-
ity B-E in accordance with the programme.
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Appendix A 259
4.2.3 During the week-end of 18 and 19 March,2000, continuous

rainfall caused the open trench for the construction of the
culvert to be flooded. On 20 March 2000, the contractor hired
additional pumps to remove the water from the excavations.
However, exceptionally adverse weather conditions contin-
ued during the period of two weeks (weeks commencing 20
and 27 March 2000). Records of the rainfall during the period
taken at Much Hamstead (four miles from the site) were
obtained by the architect for record purposes.
4.2.4 Water had been removed from the trenches and the contrac-
tor was able to recommence construction of the culvert on 3
April 2000 (a delay of two weeks).
4.2.5 The contractor gave notice of delay pursuant to clause
25.2.2.1 of the conditions of contract.
4.2.6 It is common ground that the contractor was delayed by a
period of two weeks as a result of the said weather condi-
tions and that no extension of time is permitted for such
delay by virtue of the deletion of clause 25.4.2 of the condi-
tions of contract.
4.3 Architect's instruction no 1 - Delay (D2).

4.3.1 Activity F-G is for the construction of an effluent drain under
the existing stores and constructing new bases for the plant
and equipment to be installed by the employer.
4.3.2 On 20 March 2000, the architect issued instruction no 1 which
required the contractor to reposition the effluent drain in
order to accommodate foundations for future alterations to
the stores by the employer.
4.3.3 At the time of issuance of the said instruction, the construc-
tion of the new effluent drain was on programme. The con-
tractor had excavated and laid all pipes within the existing
stores and was ready to test the pipes prior t o backfilling the
trench on 20 March 2000. Records of the work executed prior
t o the issuance of the said instruction were agreed with the
quantity surveyor.
4.3.4 The contractor commenced cutting out the existing floor slab
at the revised location of the effluent drain on 21 March 2000.
On the same day, some of the resources (labour and plant)
were diverted from activity B-E (delayed as a result of the
inclement weather described in 4.2 hereof) to commence
backfilling to the redundant length of effluent drain.
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4.3.5 The contractor excavated the trench for the revised effluent
drain and laid the pipes and was ready for testing on 3 April
2000. A delay of two weeks had occurred as a result of the
said instruction. The time taken t o carry out the work prior to
testing (2 weeks) was the same time allowed in the contrac-
tor's programme for carrying out the same quantity of work
in the originally designed location of the effluent drain.
4.3.6 Backfilling and making good the floor slab at the location of
the redundant effluent drain was completed on 3 April 2000.
Had the contractor not been able to utilise resources from
activity B-E (see 4.3.4 hereof), this work could not have been
executed until after the contractor had completed the diver-
sion of the effluent drain to the revised location.
4.3.7 As a result of the foregoing, activity B-G had been delayed
by two weeks. No direct delay to completion of section A or
the works was caused by the said instruction -see appendix
II (A.2) hereto.
4.3.8 Notices and particulars of the delay and disruption and loss
and/or expense caused by the said instruction were given by
the contractor pursuant to clauses 25 and 26 of the conditions
of contract (see 2.2 and 2.4 hereof).
4.4 Additional work - Delay (D3):

4.4.1 On 3 April 2000, the contractor notified the architect, in
writing (letter ref BBIIO), that he intended to divert resources
from activity B-G in order t o make up the time lost due to
exceptionally adverse weather conditions (Delay Dl). The
contractor's revised programme showing completion by the
original completion date was attached to the said letter - see
appendix II - (A.3) hereto. The revised programme was made
on the basis of using some of the float on activity B-G. The
original float of six weeks had been reduced by two weeks
(Delay D2) and the contractor envisaged using two weeks of
the remaining four weeks' float so that work could cease on
activity B-G until such time as activity B-E was on pro-
gramme. No delay t o completion of section A or the works
would occur as a result of the reprogramming and two
weeks' float would remain in activity B-G.
4.4.2 On 3 April 2000, the architect issued drawings AD/14A
and 15A showing four additional bases for machinery (to be
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Appendix A 261
installed by the employer) and additional effluent branch

drains.
4.4.3 On 4 April 2000, the contractor had set out for the new bases
and ordered materials for the additional work. On the same
day the contractor notified the architect that he estimated a
delay of seven to eight weeks to activity B-G as a result of
the said instruction (see 2.2.1.4 hereof). In the same letter,
the contractor notified the architect that it would not be of
any benefit to divert resources from activity B-G to activ-
ity B-E (see 4.4.1 hereof) as completion of section A was
dependent upon the timely completion of activity B-G,
which had now become critical as a result of the additional
work.
4.4.4 The contractor had completed all work to the revised draw-
ings, by 18 June 2000 (a delay of 7 weeks).
4.4.5 On 20 June 2000 [week 191, the contractor issued his revised
programme showing the Delays D l to D3, completion of
section A on 25 June 2000 [end of week 191 and completion
of the works on 30 July 2000 [end of week 241 - see appen-
dix II (A.4) hereof.
and/or expense caused by the said additional work were
given by the contractor pursuant to clauses 25 and 26 of the
conditions of contract (see 2.2 and 2.4 hereof).
4.5 Late instruction for expenditure of PC sum - Delay (D4).

4.5.1 The contract bills included the PC sum £45000.00 for the
supply and installation of mechanical equipment to the efflu-
ent treatment plant. This was shown on the contractor's orig-
inal programme as activity H-K commencing in week 19 and
the period for installation was one week.
4.5.2 The contractor's covering letter submitted with the said pro-
gramme indicated that approximately two weeks would be
necessary for ordering, manufacture and delivery of standard
equipment from several well-known firms. The letter went on
to request the architect to notify the contractor in the event
of any potential subcontractors requiring a longer period for
delivery, manufacture or installation. The necessary instruc-
tions (for standard equipment) would be required no later
than 22 May 2000 (commencement of week 15).
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4.5.3 As a result of Delays D2 and D3 (see 4.3 and 4.4 hereof) the
revised latest date for receipt of instructions was 12 June
2000 [week 181.
4.5.4 On 5 June 2000, the architect issued instruction no 7 for the
supply and installation of the equipment to be done by
Pumps & Co for the sum of £42250.00 in accordance with the
tender documents attached to the said instruction. The deliv-
ery period for the equipment (which was not a standard set)
was quoted as seven to eight weeks and one week was
required for installation.
4.5.5 On the same day, the contractor notified the architect by fax
(ref BBi77) that the delivery period quoted by Pumps & Co
was unacceptable, but he would be prepared to place the
order with Pumps & Co provided that the architect would
make an appropriate extension of time.
4.5.6 On 6 June 2000, the architect notified the contractor by fax
(ref TSl12A) that he would take the delivery period of the
pumps into account when making his decision on extensions
of time.
4.5.7 On 7 June 2000, the contractor placed his order with Pumps
& Co. A formal subcontract was signed between the con-
tractor and Pumps & Co on 19 June 2000.
4.5.8 Pumps & Co delivered their equipment to site on 31 July 2000
and completed the installation, including testing, on 6 August
2000 [end of week 251. Completion of the works had been
delayed by three weeks having regard to the fact that the con-
tractor had been denied the opportunity to reduce the delay
caused by exceptionally adverse weather conditions (Delay
D l - see 4.2 and 4.4.1 hereof) - see appendix II (A.5) hereto.
and/or expense caused by the said additional work were
given by the contractor pursuant to clauses 25 and 26 of the
conditions of contract (see 2.2 and 2.4 hereof).
4.6 Summary:
4.6.1 Completion of section A has been delayed by three weeks as
a result of Delays (D2) and (D3) - (see 4.3 and 4.4).
4.6.2 Completion of the works has been delayed by three weeks
as a result of Delays (D2), (D3) and (D4)- (see 4.3,4.4 and 4.5
hereof).
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Appendix A 263
4.6.3 The delays referred to hereinbefore are shown in appendix II

(A.5) hereto.
4.6.4 The contractor contends that the architect has wrongly
deducted the period of two weeks (delay caused by excep-
tionally adverse weather conditions) from the total delay t o
completion of three weeks for section A and the works. (The
architect's reasons for making this adjustment are given in
minutes of meeting of 14 August 2000, paragraph 2.3.)
4.6.5 Even if the contractor had not contemplated reprogramming
the works to mitigate Delay ( D l ) - (see paragraph 4.4.1
hereof), the contractor maintains that no deduction should
be made for Delay ( D l ) when, in any event,'completion of
section A and the works were delayed by Delays (D2), (D3)
and (D4) which were the responsibility of the employer.
Accordingly, the employer could not levy liquidated dam-
ages for the period of two weeks when the progress of the
works was delayed by matters for which the employer was
responsible.
4.6.6 Further, or alternatively, the contractor was prevented from
mitigating Delay ( D l ) as a result of the additional work (see
4.4 hereof) and is entitled to a fair and reasonable extension
of time of three weeks pursuant to clause 25 of the conditions
of contract (relevant events described in clauses 25.4.5.1 and
25.4.6) until the date of practical completion of section A and
the works and for reimbursement of loss and/or expense
pursuant to clause 26 of the conditions of contract (matters
described in clauses 26.2.1 and 26.2.7).
5.0 Evaluation of Loss and/or Expense:
5.1 For the reasons given in 4.0 hereof, the contractor is entitled
t o direct lossland or expense as follows:
5.1 .I Prolongation:
The period of prolongation is 3 weeks. The contractor
contends that the issuance of drawings ADll4A and 15A
(see 4.3 hereof) substantially changed the conditions under
which the work on activity B-E would otherwise have been
carried out (see 4.4.1 hereof). Therefore, notwithstanding
Delay (Dl), pursuant to the provisions of clause 13.5.5 and
the proviso in the final paragraph of clause 13.5, the con-
tractor is entitled to reimbursement for the total period of
prolongation pursuant to clause 26 (matter referred to in
clause 26.2.7).
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The contractor is entitled to reimbursement of loss andlor

expense caused by Delays (D2) and (D3) pursuant t o clause
26 (matter described in clause 26.2.7).
The contractor is entitled to reimbursement of loss andlor
expense caused by Delay (D4) pursuant to clause 26 (matter
described in clause 26.2.1.2).
5.1.1 .IHead office overheads and profit:

As a result of Delays (D2), (D3) and (D4) described in 4.0
hereof, the contractor was required to retain its key staff and
resources on site for an additional period of three weeks and
was deprived of making a contribution to overheads and
profit. The contractor is therefore entitled to recover this loss
pursuant t o the provisions mentioned in 5.1.1 hereof.
The contractor's auditors have certified that the contractor's
overheads and profit (as percentages of revenue) were as
follows:
Year ending 31 July 1999 - 12.76%
Year ending 31 July 2000 - 11.98%
The average percentage for overheads and profit for two
years was therefore:
Using Emden's formula:

Loss of overheads and profit for three weeks =
Overheads & profit % Contract sum
x x Period of delay
100 Contract period
12.37% f827 333.000
x x 3 weeks =
100 22 weeks
5.1.1.2 Site overheads and establishment (preliminaries):
As a result of Delays (Dl), (D2) and (D3) described in 4.0
hereof, the contractor was required to retain its key staff and
resources on site for an additional period of three weeks. The
contractor is therefore entitled to recover the expense of his
site overheads and establishment costs for the period of
delay pursuant t o the provisions mentioned in 5.1.1 hereof.
Delays (D2) and (D3) - 2 weeks - see (A.4) in appendix II
hereto.
Costs incurred during weeks 11 and 12:
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Appendix A 265
Excludes costs associated with activity B-G:

Project manager 2 weeks @ f 1200.00/week = £2400.00
General foreman 2 weeks @ £1150.00/week = £2300.00
Engineer 2 weeks @ f1 100.00/week = £2200.00
Quantity surveyor (part) 2 weeks @ f600.00/week = f 1200.00
Administration staff 2 weeks @ f750.00/week = f 1500.00
Hire of offices 2 weeks @ f900.00/week = f 1800.00
Office equipment 2 weeks @ f200.00/week = f 400.00
Plant & equipment 2 weeks @ f 1950.00/week = £3900.00
Scaffolding 2 weeks @ f 1600.00/week = £3200.00
Small tools & equipment 2 weeks @ f650.00lweek = £1300.00
Electricity charges f 1950.00 x 2/13 weeks = f 300.00
Telephone charges £975.00 x 2/13 weeks = f 150.00
Security 2 weeks @ f 500.00/week = f 1000.00
Stationery and sundries £90.00 x 14/30 days = f 42.00
Total £21 692.00
Delay (D4) - One week - see (A.5) in appendix II hereto.
Costs incurred during week 23;
Project manager 1 week @ f 1200.00/week = f1200.00
General foreman 1 week @ f 1150.00/week = f 1150.00
Quantity surveyor (part) 1 week @ f 600.00Iweek = f 600.00
Administration staff 1 week @ f300.00/week = £300.00
Hire of offices 1 week @ £900.00/week = £900.00
Office equipment 1 week @ f200.00/week = £200.00
Plant & equipment 1 week @ f 550.00/week = f 550.00
Small tools & equipment 1 week @ f200.00/week = £200.00
Electricity charges £650.00 x 1/13 weeks = f 50.00
Telephone charges £325.00 x 1/13 weeks = f 25.00
Security 1 week @ f500.00/week = f 500.00
Stationery and sundries £62.00 x 7/31 days = f 14.00
Total f 5689.00
Total site overheads and establishment costs = £21 692.00 + £5689.00
= f27 381.OO
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5.1.1.3 Finance charges on delayed release of retention:

Pursuant to clauses 30.4 and 30.8 of the conditions of con-
tract, two and a half per cent of the contract sum (being one
half of the retention percentage stated in the appendix to the
conditions of contract) should be certified and paid after prac-
tical completion (of section A and the works) and upon the
issuance of the final certificate.
As a result of Delays (D2), (D3) and (D4), the dates when the
retention ought to have been released were three weeks later
than the dates which would have applied if there had been
no delay. Accordingly, the contractor has incurred financing
charges by virtue of the fact that interest charges on his over-
draft have been accruing for an additional period of three
weeks on the amount of retention withheld.
The finance charges incurred are calculated at the rate of two
per cent above the bank base rate (as charged by the con-
tractor's bank from time to time) as follows:
First half due t o be released.
Period of financing (assume release three weeks after practi-
cal completion):
Planned release Actual release Rate
Section A 10 July 2000 31 July 2000 8%
The works 7 August 2000 28 August 2000 8%
Amount of retention:
Section A: f 14000.00
Finance charges = £14000.00 x 8% x 211365 = £64.43
The works: £21 010.00 - f 14000.00 = £7010.00
Second half due to be released (Defects liability period - six
months).
Period of financing (assume release six months after first
release):
Planned release Actual release Rate
Section A 10 Jan 2001 31 Jan 2001 8%
The works 7 February 2001 28 February 2001 8%
Amount of retention:
Section A: f 14000.00
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Appendix A 267
The works: £21 010.00 - £14000.00 = £7010.00

Total finance charges on retention
5.1.1.4 Fluctuations:
The contract does not provide for reimbursement of fluctua-
tions of labour or materials (see 1.4.2.8 hereof). The contrac-
tor allowed for the anticipated increase in labour in June 2000
in his tender (for the labour required to execute the work in
weeks 20-22 on activity J-K). The hours allowed by the con-
tractor i n his tender during this period were as follows:
Craft operatives 3170 hours
Labourers 2700 hours
Due to Delays (D2), (D3) and (D4), the contractor's labour
resources in weeks 20-25 were as follows:
Craft operatives 5060 hours
Labourers 4365 hours
Due to the fact that the contractor had been prevented
from mitigating the delay caused by exceptionally adverse
weather conditions (Delay D l ) - see 4.4.1 hereof, the addi-
tional costs of labour for the additional hours expended after
the wage increase on 26 June 2000 (most of which would
have been prevented by the measures proposed by the
contractor to mitigate the delay) qualify for reimbursement
pursuant to clause 26 of the conditions of contract.
The additional costs of labour claimed are calculated as
follows:
Tender 26 June 2000 Increase
Craft operatives £6.05 £6.35
NI & Employer's Ins. £0.67 £0.70
(11%)
£6.72 £7.05 £0.33 (hr)
Labourers £4.90 £5.15
NI & Employer's Ins. £0.54 £0.57
(11%)
£5.44 £5.72 £0.28 (hr)
Hours after 26 June 2000:
Craft operatives 5060 - 3170 = 1890 hrs
Labourers 4365 - 2700 = 1665 hrs
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Therefore, the additional costs caused by Delays (Dl), (D2)

and (D3) are:
Craft operatives 1890 hrs @ f0.33 = f 623.70
Labourers 1665 hrs @ f 0.28 = f 466.20
Total f 1089.90
The total increased cost of labour fluctuations is £1089.90
The contractor ordered all materials at the prices applicable
at the date of tender and no claim is made for increased costs
of materials.
5.1.1.5 Total prolongation costs:

Head office overheads & profit (5.1.1.1) = f 13955.00
Site overheads & establishment costs (5.1.1.2) = £27381.00
Finance charges on retention (5.1.1.3) = f 193.40
Fluctuations (5.1.I
.4) = f I089.90
TOTAL £42 619.30
5.1.2 Disruption:
Activity B-G was delayed by nine weeks as a result of Delays
(D2) and (D3). Site staff and resources allocated to this activ-
ity were required on site for this additional period and the
contractor is entitled to reimbursement of expense caused
thereby.
5.1.2.1 Cost of resources allocated to activity B-G:

Section foreman 9 weeks @ f 1000.00/week = £9000.00
Engineer 9 weeks @ f 1000.00/week = £9000.00
Plant & equipment 9 weeks @ f550.00lweek = £4950.00
Scaffolding 9 weeks @ f800.00/week = £7200.00
(part only)
Small tools & 9 weeks @ f400.00/week = £3600.00
equipment
Total £33 750.00
5.1.3 Finance charges on loss and expense:

The contractor has incurred financing charges by virtue of the
fact that interest charges on his overdraft have been accru-
ing from the date that each head of loss and expense
occurred.
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Appendix A 269
In addition, the contractor has incurred finance charges on

the liquidated damages and he claims finance charges under
the general law until liquidated damages are repaid to the
contractor (see 3.3.1 hereof).
For the purposes of calculating finance charges, the dates
when the loss and expense occurred are taken as follows:
Head office overheads & 3 August 2000
profit (5.1.1.1)
Site overheads & establishment 3 May 2000
(5.1.1.2) 3 August 2000
Finance charges on retention 3 August 2000
(5.1.1.3) 3 Sept 2000
3 Feb 2001
3 March 2001
Disruption (5.1.2.1) 3 May 2000
Fluctuations (5.1.1.4) 3 August 2000
Total
On liquidated damages 3 Sept 2000
Therefore, finance charges accrued on the following sums
from the dates given below:
f55 442.00 3 May 2000
f20 798.33 3 August 2000
f 63 032.27 3 September 2000
f 64.43 3 February 2001
f 32.27 3 March 2001
The finance charges incurred are calculated at the rate of
two per cent above the bank base rate (as charged by
the contractor's bank from time to time) in appendix Ill
hereto.
The total finance charges up to 31 March 2001 (the date of
this submission) are f8218.12.
5.1.4 Costs of preparing the claim:

5.1.4.1 The contractor has complied in all respects with his obliga-
tions to give notice and full particulars pursuant to clause 26
of the conditions of contract (see 2.2 and 2.4 hereof) and the
architect has failed t o comply with his obligations to ascer-
tain the loss and/or expense due to the contractor.
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5.1.4.2 Accordingly the contractor claims reimbursement of the fees

paid t o Contraconsult Ltd for the preparation of this submis-
sion in the sum of f6050.00 (see 3.3.2 hereof).
5.2 Summary of loss and/or expense and/or damages:
The following sums are due to the contractor:
Prolongation costs (5.1.I.5) £42619.30
Disruption (5.1.2.1) £33750.00
Finance charges (5.1.3) £8218.12
Cost of preparing the claim (5.1.4) £6050.00
Total f90637.42
6.0 Statement of Claim:
6.1 Extensions of time:
6.1.1 The contractor claims an extension of time pursuant to clause
25 of the conditions of contract of a further two weeks giving
the following extended dates for completion:
Section A - 25 June 2000
The works - 6 August 2000
6.2 Loss and expense and/or damages:

6.2.1 The contractor claims reimbursement of loss and/or expense
pursuant to clause 26 of the conditions of contract and/or
damages for breach of contract amounting to 430637.42.
6.3 Retention:
6.3.1 The contractor is entitled to release of retention in the sum
of £21 010.00.
6.4 Adjustments to the contract sum:

6.4.1 The contractor has submitted under separate cover (letter of
even date) his statement of account for all adjustments t o
the contract sum (excluding the loss and/or expense and/or
damages herein) and claims payment of the sum £6325.78
being the outstanding amount due t o be included in the final
statement of account pursuant to clause 30.6.1 of the condi-
tions of contract.
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Appendix A 271
6.5 Liquidated damages:

6.5.1 The contractor claims repayment of liquidated damages in
full for the amount of £63000.00.
6.6 Finance charges accruing:

6.6.1 The contractor claims finance charges on the sums stated in
6.2 to 6.5 hereof after the date of this submission at the rate
of two per cent above the bank base rate.
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Appendix A 273
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Appendix A 275
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Appendix Ill
BElTER BUILDERS LTD

FINANCE CHARGES ON BALANCE DUE
DATE CAPITAL CAPITAL RATE PERIOD INTEREST CAPITAL plus

ADDED TOTAL DAYS INTEREST
f f f f f f
3-May-00 55 442.00 55 442.00 0.08 59.00 716.95 56 158.95

1-Jul-00 56 158.95 0.08 33.00 406.19
3-Aug-00 20798.33 76 957.28 0.08 31.OO 522.89
3-Sep-00 63 032.27 139989.55 0.08 28.00 859.1 1 141777.74
1-0ct-00 141777.74 0.08 92.00 2858.86 144636.60
I-Jan-01 144 636.60 0.08 33.00 1046.14 145 682.74
3-Feb-01 64.43 144701.03 0.08 28.00 888.03
3-Mar-01 32.27 144733.30 0.08 29.00 919.95 146 541.28
I-Apr-01 146 541.28 0.08 b
139 369.30 8218.12 147587.42 39
Dates in bold = rest days for compounding interest. Interest rate after 1 October 2000 assumed at current
b
rates
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Architect's reply to the contractor's letter of 2 April 2001 and the

claim submission:
Date 8 May 2001

Dear Sirs,
Re: ABC Stores and Depot, New Road, Lower Hamstead, Wilton. I
refer to your letter and enclosures of 2 April 2001.
Extensions of time
Having considered the arguments in your submission, I am prepared
to fix later completion dates of 25 June 2001 for section A and 6
August 2000 for the works. That is, total extensions of time of three
weeks inclusive of the extensions already made in my certificate EOT
1 dated 14 August 2000.1 am not empowered to deal with the matter
of finance charges on liquidated damages, and I am instructed to
inform you that the employer wishes to discuss this with you at a
meeting to be arranged next week. In the meantime, 1 will prepare
the necessary certificate and issue it by the end of this week.
Loss andlor expense
I cannot agree that you are entitled t o prolongation costs for the
period of prolongation caused by Delays (D2) and (D3). The princi-
pal cause of delay during this period was exceptionally adverse
weather conditions (Delay D l 1. I have considered your arguments on
reprogramming (paragraph 4.4.1 of your submission) and I reject it
on the grounds that you would have required additional formwork
to make any progress on activity B-E in order to mitigate the delay.
No additional formwork was delivered to site for this work.
Further, I cannot agree that your resources were prevented from
taking on other work as a result of Delay (D4). According to my
records, site offices were removed in week 24 and your resources
were decreased commencing the end of week 23. 1 am prepared to
include the part-time cost of your general foreman as part of your
claim (subject to substantiation of his time spent on site). I do not
accept that you lost any opportunity t o make a contribution to over-
heads and profit as a result of one week delay. Even if I allowed loss
of overheads and profit for any part of the prolonged period, I would
have to deduct the overheads and profit recovered in the variations
and extra work to activity B-G.
I also reject your argument on reimbursement of the costs of prepar-
ing the claim.
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Appendix A 279
The quantity surveyor's assessment of loss and/or expense, taking

into account the above comments, is £18500.00 inclusive of finance
charges up to the date of this letter.
A statement pursuant to clause 30.6.1 of the conditions of contract
will be sent to you within the next few weeks.
Yours faithfully
T. Square
Contractor's reply to the architect's letter of 8 May 2001:

Date 16 May 2001
Dear Sir
Re: ABC Stores and Depot, New Road, Lower Hamstead, Wilton.
Thank you for your letter of 8 May 2001.
We cannot agree with your comments on our claim for loss and/or
expense and/or damages.
Regarding measures to mitigate the delay caused by exceptionally
adverse weather conditions (Delay Dl), the work which would have
been done in the first week after the delay [week 81 was the excava-
tion of a trench 2.5 metres wide by 2.25 metres deep. No form-
work was required until the second week. We enclose herewith the
acknowledgement of order for additional formwork which was due
to be delivered on 8 April 2000. Accordingly, had we carried out
the measures to mitigate the delay, we would have been able to
complete activity B-E in accordance with our original programme.
Regarding the removal of site offices and reduction in resources, we
had originally planned t o remove the site offices before the comple-
tion date and our resources would have been reduced commencing
week 20 if the project had not been delayed. As a result of Delays
(D2), (D3) and (D4) our resources were required for this project for
three weeks longer than they would have been if there had been no
delay. We reject the argument that we did not lose any opportunity
to make a contribution to overheads and profit as a result of the
delay. Please find enclosed a copy of the minutes of our board
meeting on 3 July 2000 in which it is recorded that we postpone com-
mencement of our own speculative development of twenty-six
houses because our labour, staff and plant were retained on this
project as a result of the delay.
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We also disagree with the proposition that an adjustment should be

made for overheads and profit recovered in variations and extra
work. This work delayed activity B-G and delayed completion of
section A. There was no affect on the period of prolongation (which
was a result of late nomination of Pumps & Co). In other words, the
overheads and profit recovered in the additional work to activity B-G
would have been earned within the original contract period and no
adjustment would have been made (see The Presentation and Set-
tlement of Contractors' Claims by Geoffrey Trickey at pp. 127 and
128).
In the circumstances of this case, we must insist that it is right to
reimburse the cost of preparing the claim.
We trust that you will reconsider the matter at your earliest
convenience.
Yours faithfully
For and on behalf of Better Builders Ltd.
Footnotes
Some of the arguments in the above example may be persuasive in
negotiations. Differences of opinion in the industry on the use of a
formula, concurrent delays, adjustment for overheads and profit
recovered in variations and the costs of preparing the claim may give
rise to real stumbling blocks in the negotiations to settle the sums in
dispute.
This example may not cover all that went wrong during the progress
of the works. There may have been other delays by the contractor.
However, on the facts described in the example, the contractor
appears to have reasonable grounds to pursue his claims.
While, in this case, the architect has now granted an extension for
the full period of delay, some practitioners may argue that the words
used in clause 25.3.1 of JCT80:
.
'If, in the opinion of the Architect,. . any of the events.. . are a Relevant
Event and the completion of the Works is likely to be delayed thereby
beyond the Completion Date.. . the Architect shall in writing.. . give an
extension of time.. . '
do not cover extensions of time in the circumstances of this case.

For example, none of Delays (D2), (D3) or (D4) caused completion of
the works (or section A) to be delayed beyond the completion date.
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Appendix A 281
Delay ( D l ) had already caused the completion of the works and

section A to be delayed (or likely to be delayed) beyond the com-
pletion date. Unless clause 25.3.3 is intended to allow greater flexi-
bility for granting extensions of time, it would appear to be at least
arguable that once the contractor has caused delay which was likely
to cause completion of the works to be delayed beyond the com-
pletion date, the clause does not bite. If that was the case, there
would be no valid extension of time provision (after the contractor's
delay) and all subsequent delays within the control of the employer
would put time at large and no liquidated damages could be
recovered. This is clearly not the intention of the contract, but some
revised drafting may be helpful. Clause 23 of JCT63 (which is still in
use in some parts of the world) does not have any provisions similar
to clause 25.3.3 of JCT80, in which case the clause may be defective
if construed very narrowly.
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Appendix B: Sample Loss
of Productivity Claim
(due to disruption)
Introduction and Explanation
A contractor for mechanical installations entered into a contract for various

pipework systems which were required to be carried out in 13 weeks in
accordance with an approved programme.
The contractor's tender was based on estimating norms for productiv-
ity; for example, in week 1 , the part of the work to be done in accordance
with the programme was 35 lineal metres (lin. m.) of 35mm diameter pipe
at 0.6 man-hours per lin. m. (21 man-hours). The total man-hour require-
ment in week 1was estimated to be 5 2 5 man-hours, to be achieved with
a gang of 1 2 men working 4 4 hours per week.
The contractor's analysis of total quantities and manpower required to
execute the works in 13 weeks is shown in Figure B.1.
The contractor commenced work on time.
From weeks 8 to 17, numerous variation instructions were issued to re-
route pipework to avoid conflicts with other installations and to accommo-
date some changes in layout of the building. Parts of the installation already
installed had to be dismantled and re-installed (done on day-work). The con-
tractor had to work out-of-sequence in various parts of the building instead
of in an orderly manner as planned. The work actually took 1 7 weeks to
complete. The actual quantities and schedule of work done are shown in
Figure B.1. The data from Figure B . l has been incorporated in Figure B.2,
which shows the productivity, incidence of variations and alterations (day-
work) on a weekly basis.
It is evident from Figures B.l and B.2 that during weeks 1-8, the con-
tractor was able to progress the work approximately as planned until the
end of week 8, that is 5364 man-hours of work had been achieved com-
pared with the original plan of 5216 man-hours (5216 being the sum of
planned man-hours for the first eight weeks in the tender plan). The con-
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Appendix B 283
tractor had achieved this progress using more manpower, because of inef-
ficient working, and for evey hour worked an average of 0.936 man-hours
of work had been done, that is an earned value or productivity factor (PF)
of 0.936 compared with the tender norms of 1.0. Apart from two varia-
tions issued during this period, the contractor had not been affected by any
adverse factors.
Accordingly, it is reasonable to argue that given no significant external
factors to disrupt the contractor's progress, productivity would have been
0.936 man-hour earned for each 1.0 man-hour worked for the duration of
the project, that is even without significant disrupting factors, the contrac-
tor could not achieve the tender norm of 1.0.
However, from week 9 onwards, it is evident that the number of varia-
tions issued and the amount of day-work (dismantling and re-installing work
already completed) had an affect on productivity. It is reasonable to con-
clude that the drop in productivity from week 9 onwards was a direct result
of these factors (see Figure B.2).
Calculation of Loss of Productivity
The calculation of loss of productivity is as follows (see Figure B.l):

Productivity factor (PF) in week 1
Man-hours achieved (earned value)
= (35 x 0.6)+(60 x 1.2)+ (130 x 2.4)+ (55 x 3.6)
= 21+72+312+198 = 6 0 3
Man-hours spent (actual) = 1 4 x 44 = 616 - 2 (day-work) = 614
Man-hours work achieved
Therefore productivity factor (PF) =
Man-hours spent (actual)
Similar calculations have been done in Figure B.l for all weeks.
Average productivity factor (PF) for weeks 1-8 (before significant disruption)
That is to say, for evey man-hour worked, 0.936 man-hour value of work
had been achieved.
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Productivity factor (PF) in week 9 (the first week affected by significant

disruption)
Man-hours achieved (earned value) = 102 + 108 + 264 + 96 = 570
Man-hours spent (actual)= 18 x 44 = 792 - 80 (day-work)= 712
570
Therefore productivity factor (PF) = -= 0.801
712
That is to say, for every man-hour worked, 0.801 man-hour value of work
had been achieved.
Loss of productivity in week 9
- (0'936-0'801) x 100% = 14.51%(see Note)
0.936
= 712 man- hours (spent) x 14.51%= 101.32 man- hours
Note - All calculations in Figure B. 1are in Excel and are calculated to more
than three decimal places. The results in Figure B.l are therefore more
accurate and are given above.
Calculations for weeks 10-17 are also shown in Figure B.1.
The total loss of productivity is 1624.42 man-hours (being the sum of
the loss of productivity for weeks 9-17 calculated in the same manner as
week 9).
In other words, the contractor's case is that if he had not been disrupted
by the numerous changes, instead of spending a total of 10320.00 man-
hours to complete the work at a productivity factor (PF)of 0.936, the man-
hours spent would have been 8695.58 man-hours calculated as follows:
Total planned man-hours to execute the work done (excluding day-work)
= 8143
Man-hours to execute work done at a PF of 0.936 (excluding day-work)
Actual man-hours to execute the work done (excluding day-work)= 10 320.00

Loss of productivity = 10 320.00 - 8 695.58 = 1624.42
The extra cost to the contractor is 1624.42 man-hours at the relevant cost
per hour.
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Orlglnal Quanuties and Schedule of Work for 93 Week Programme EsUmated ~roductlvlty
Total Adual Actual Prod.

25 mm 50 mm IOOmm 150mm Daywk Planned No.of Total per hr
Qty mhlunit mh Qty mhlunit mh Qty mhlunit mh Qty mhlunil mh mh mh Men Mh PF
wl 35 0.6 21 60 1.2 72 120 2.4 288 40 3.6 144 0 525 12 528 0994
w2 60 0.6 36 85 1.2 102 140 2.4 336 40 3.6 144 0 618 14 616 1003
w3 70 0.6 42 80 1.2 96 140 2.4 336 40 3.6 144 0 618 14 616 1.003
w4 60 0.6 36 85 1 2 102 120 2 4 288 60 3.2 192 0 618 14 616 1.003
>W5 65 0.6 39 85 1.2 102 170 2.4 408 50 3.2 160 0 709 16 704 1.007
w6 90 0.6 54 80 1.2 96 140 2.4 336 70 3.2 224 0 710 16 704 1.009
w7 90 0.6 54 80 1.2 96 140 2.4 336 70 3.2 224 0 710 16 704 1.009
w8 80 0.6 48 90 1.2 108 170 2.4 408 45 3.2 144 0 708 16 704 1.006
w9 290 0.6 174 100 1.2 120 120 2.4 288 40 3.2 128 0 710 16 704 1.009
w10 210 0.6 126 150 1.2 180 120 2.4 288 35 3.2 112 0 706 16 704 1.003
wll 160 0.6 96 150 1.2 180 110 2.4 264 50 3 2 160 0 700 16 704 0.994
w12 150 0.6 90 100 1.2 120 120 2.4 288 10 3.2 32 0 530 12 528 1.004
w13 30 0.6 18 80 1.2 96 90 2.4 216 5 3.2 16 0 346 8 352 0.983
Total 1390 1225 1700 555 8208 186 8184 1.003
Actual Quantltlea and Schedule of Work Done Actual Productivity Loss of Productivity
Total Actual Actual Prod. Base Loss Loss

25 mm 50 mm l00mm 150mm Daw Planned No.of Total per hr Prod, of Pmd. of Prod.
Qty mhlunlt mh Qty mhlunit mh mhlunit mh Qty mhlunfi mh mh mh" Men Mh" PF % mh
wl 35 0.6 21 80 1.2 72 %O 2.4 312 55 3.6 198 2 603 14 614 0.982 0.936 0.00 0.00
w2 60 0.6 36 85 1.2 102 120 2.4 288 50 3.6 180 4 606 14 612 0.990 0.936 0.00 0.00
w3 90 0.6 54 90 1.2 108 140 2.4 336 35 3.6 126 6 624 16 698 0.894 0.936 0.00 0.00
w4 80 0.6 48 85 1.2 102 110 2.4 264 65 3.2 208 12 622 16 892 0.899 0.936 0.00 0.00
w5 75 0.6 45 85 1.2 102 155 2.4 372 65 3.2 208 10 727 18 782 0.930 0.936 0.00 0.00
bv6 95 0.6 57 85 1.2 102 155 2.4 372 65 3.2 208 12 739 18 780 0.947 0.936 0.00 0.00
w7 95 0.6 57 85 1.2 102 140 2.4 336 70 3.2 224 16 719 18 776 0.927 0.936 0.00 0.00
w8 80 0.5 48 90 1.2 106 170 2.4 408 50 3.2 160 18 724 18 774 0.935 0.936 0.00 0.00
w9 170 0.6 102 90 1.2 108 110 2.4264 30 3.2 96 80 570 18 712 0.801 0.936 14.51 103.32
w10 120 0.6 72 90 1.2 108 80 2.4 192 35 3.2 112 90 484 18 702 0.689 0.936 28.38 185.16
wll 100 0.6 60 70 1.2 84 80 2.4 192 25 3.2 60 100 416 18 692 0.601 0.936 35.60 247.77
w12 90 0.6 54 80 1.2 96 70 2.4 168 25 3.2 80 110 398 18 682 0.584 0.936 37.68 256.99
w13 80 0.6 48 70 1.2 84 50 2.4 120 10 3.2 32 140 284 16 564 0.504 0.936 46.23 260.73
w14 70 0.6 42 50 1.2 60 30 2.4 72 0 3.2 0 120 174 10 320 0.544 0.936 41.94 134.19
w15 80 0.6 48 50 1.2 60 20 2.4 48 0 3.2 0 130 156 10 310 0.503 0.936 46.26 143.41
wl8 70 0.6 42 30 1.2 36 10 2.4 24 0 3.2 0 170 102 10 270 0.378 0.936 59.66 161.08
w17 65 0.6 39 70 1.2 84 30 2.4 72 0 3.2 0 100 195 10 340 0.574 0.936 38.76 131.77
Total 1455 1265 1600 580 1120 8143 Adual 10320 0 789 Total loss prod. 1624.42
Orig. 1390 1225 1700 555 0 8208 8184 1.003 8143 10.936 8695.58
Change 65 40 -1 00 25 1120 -65 Mh" excludes daywork Check adual 10320.00
Figure B.1 Loss o f productivity due to disruption: data
https://t.me/PrMaB
https://t.me/PrMaB
References
Books and Publications
Books
A Building Contract Casebook, second edition
Authors: Dr Vincent Powell-Smith and Michael Furmston
Publisher: BSP Professional, 1990
All You Need to Know About Construction Claims (South Africa)
Authors: Reg Thomas and Chris Binnington
Publishers: James R. Knowles and Binnington, Copeland and Associates, 1995
Alternative Dispute Resolution
Author: Patrick O'Connor
Publisher: Knowles Publications, 1991
Arbitration of Construction Disputes
Authors: Michael T. Callahan, Barry B. Bramble and Paul M. Lurie
Publisher: John Wiley & Sons, 1990
Building Case Law Digest
Author: Ann Glacki
Publisher: Lloyd's, 1999
Building Contract Claims, second edition (see Note)
Author: Dr Vincent Powell-Smith and John Sims
Publisher: BSP Professional. 1988
Note: Third edition, updat;?d by David Chappell, published by BSP Professional,
2000
Building Law Information Subscriber Service (BLISS)
Author: Ann Glacki
Publisher: Knowles Publications, 1993, 1994, 1995, 1996, 1997, 1998, 2000
Building Law Information Subscriber Service (BLISS) Weekly Bulletins: BLISS
Annuals
Authors: Roger Knowles and Mark Entwhistle, edited by Ann Glacki
Publisher: Knowles Publications, 1988, 1989, 1990, 1991
CIMAR: Construction Industry Model Arbitration Rules, 1998
Author: The Joint Contracts Tribunal
Publisher: RIBA Publications
https://t.me/PrMaB
288 References
Claims: Their Mysteries Unravelled, first and second editions

Authors: Roger Knowles and David Canick
Commercial & Consumer Arbitration
Author: M. J. Chapman
Publisher: Blackstone Press, 1997
Constructing the Team (The Latham Report)
Author: Sir Michael Latharn
Publisher: HMSO, 1994
Construction Adjudication
Author: Mike Hall
Publisher: James R. Knowles Seminars Division
Construction Contracts: Principles and Policies in Tort and Contract
Author: I.N. Duncan Wallace
Publisher: Sweet & Maxwell Ltd, 1986
Construction Delay Claims (see Note)
Authors: Bany B. Bramble and Michael T. Callahan
Publisher: John Wiley & Sons, 1987
Note: Third edition, by the same authors, published by Aspen Law and Business,
2000
Delay and Disruption in Construction Contracts
Author: Keith Pickavance
Publisher: LLP Limited, 1997
Emden's Building Contracts and Practice, eighth edition, Volume 2
Author: S. Bickford-Smith
Publisher: Buttenvorths, 1990
Engineering Law and the 1.C.E. Contracts
Author: Max W. Abrahamson
Publisher: Elsevier Applied Science Publishers, 1979
House and Cottage Construction, Volume N
Author: Horace W. Langdon (Chapter ID
Publisher: Caxton Publishing Company Limited, estimated 1927
Hudson's Building and Engineering Contracts, tenth edition
Hudson's Building and Engineering Contracts, tenth edition, First Supplement
Hudson's Building and Engineering Contracts, eleventh edition
https://t.me/PrMaB
References 289
ICC: International Chamber of Commerce Rules of Arbitration, 1998

Author: International Chamber of Commerce
Publisher: International Chamber of Commerce
ICE: The Institution of Civil Engineers' Adjudication Procedure, 1997
Author: The Institution of Civil Engineers
Publisher: Thomas Telford
International Arbitration
Authors: Andrew Demetriou, Loukas Sawides, Cosras Tsirides, Nick Longworth
and Reg Thomas
Publisher: James R. Knowles (Middle East) Limited
JCT Amendment Number 18, issued by the Joint Contracts Tribunal, 1998
Author: Joint Contracts Tribunal
Publisher: RIBA Publications Ltd, 1998
JCT Practice Note 20
Publisher: RIBA Publications Ltd, 1993
Keating on Building Contracts, First Supplement to the fourth edition
Author: Donald Keating
Keating on Building Contracts, fifth edition
Author: Hon Sir Anthony May, M.A.
Keating on Building Contracts, sixth edition
Author: Hon Sir Anthony May, M.A.
Practical Explanation of the New FlDlC Contracts
Authors: David Price and Reg Thomas
Publisher: James R. Knowles International Division, 2000
Private Finance Initiative
Authors: Roger Knowles, David Price and Reg Thomas
Privately Funded Infrastructure Projects (BOT)
Authors: David Price and Reg Thomas
Publisher: James R. Knowles International Division, 1999
Problems in Construction Claims
Author: Dr Vincent Powell-Smith
Publisher: BSP Professional, 1990
Recent Legal Cases
Author: Roger Knowles
https://t.me/PrMaB
290 References
Standard Bidding Documents: Procurement of Works

Author: The World Bank
Publisher: The World Bank, 1995
The Arbitration Act 1996
Author: Mike Milne
The Arbitration Ordinance of Hong Kong: A Commentary
Author: Robert Morgan
Publisher: Butterworths, 1997
The Construction Act 1996
Author: Mike Hall
The Presentation and Settlement of Contractors' Claims
Author: Geoffrey Trickey
Publisher: E. & F.N. Spon Ltd, 1983
The Railway Navvies
Author: Teny Coleman
Publisher: Penguin Books, reprinted 1981
Thirty Crucial Contractual Issues and Their Solutions
UNCITRAL Arbitration Rules, 1976
Author: United Nations Commission on International Trade Law
Publisher: United Nations Commission on International Trade Law
UNCITRAL Model Law on International Commercial Arbitration, 1985
Author: United Nations Commission on International Trade Law
Publisher: United Nations Commission on International Trade Law
50 Contractual Nightmares and Their Antidotes
Reports and Directives

The Banwell Report - The Placing and Management of Contracts for Building
and Civil Engineering Work (HMSO), 1964
The Excluded Sectors Directive, 90/531 OJ L2971/29 October 1990 (EC),
amended by Council Directive 98/4/EC dated 16 February 1998 (EC)
The Public Supplies Directive, 77/62/EEC, amended 2 2 March 1988
88/295/EEC (EC),amended by Council Directive 93/36/EEC dated 1 4 June 1992
(EC)
https://t.me/PrMaB
References 291
The Public Works Directive, 77/305/EEC, amended 18 July 1989 89/440/EEC

(EC), amended by Council Directive 93/37/EEC dated 14 June 1993 (EC)
Journals and conference papers

International Construction, November 1980: Anatomy of a construction
project
Author: Kris Nielson
International Construction, May 1996, July 1996, September 1996: The use and
abuse of FlDIC in South East Asia, Parts I, 11and 111
Author: Reg Thomas
Public Procurement Directives
Author: Robert Falkner
Conference paper at seminar 'The Construction Industry, Europe and 1992',
organised by Legal Studies & Services Limited, 10 December 1990
South African Builder, December 1995/Januay 1996, Some reminiscences on
South African legal cases
Authors: Chris Binnington and Reg Thomas
The Project Manager Today, NovemberDecember 1991, The origin and use of
cost performance measurement: Part 1
Author: Alan Webb
Acts of Parliament; Statutory Instruments; Laws and legal

codes (and pages of this book on which referred to)
Housing Grants, Construction and Regeneration Act 1996 - pp. 31, 224, 234
Late Payment of Commercial Debt (Interest) Act of 1998 - p. 179
Scheme for Construction Contracts (England and Wales) 1998 - p. 235
The Arbitration Acts of 1950, 1975, 1979 and 1996 - pp. 236, 237
The Commercial and Civil Code of Kuwait - p. 5
The Commercial and Civil Code of Thailand - p. 119
The Contracts Act of Malaysia - p. 18
The Conventional Penalties Act of South Africa, Act 15 of 1962 - p. 19
The Courts and Legal Services Act 1990 - p. 238
The Hong Kong Arbitration Ordinance; Chapter 341 - p. 240
The Unfair Contract Terms Act 1977 - p. 119
The United Nations Convention on the Recognition and Enforcement of
Foreign Arbitral Awards 1958 - p. 245
List of Cases (and pages of this book on which referred to)

3. and J.C. Abrahams v. Ancliffe [I9381 2 NZLR 420 - p. 118
Alghussein Establishment v. Eton College [I98811 WLR 587 - pp. 18, 23, 168
Amalgamated Building Contractors v. Waltham Holy Cross UDC 119521 2 All
ER 452 - p. 15
https://t.me/PrMaB
292 References
Amec Building Ltd v. Cadmus Investment Co Ltd [I9961 51 ConLR 105 -

pp. 26, 130, 179
Aoki Corp v. Lippoland (Singapore) Pte Ltd [I9951 2 SLR - p. 212
Appeal of Eichleay Corporation, ASBCA 5183, 60-2 BCA (CCH) 2688 (1960)
- p. 128
Appeal of Pathman Construction Co, ASBCA 14285, 71-1 BCA (CCH)8905
(1971)- p. 155
Baese Pty Ltd v. R.A. Bracken Building Pty Ltd (1989) 52 BLR 130 - p. 211
Balfour Beatty Building Ltd v. Chestermount Properties Ltd (1993) 62 BLR 1
- pp. 111, 216
B a r y D Trentham Ltd v. McNeil (1996) SLT 202 - pp. 58, 76
Beaufort Developments Ltd v. Gilbert Ash NI Ltd and Others [I9981 2 All ER
778 - p. 238
Bolt v. Thomas (1859): (Hudson's Building and Engineering Contracts, tenth
edition at page 196) - p. 7
Borough o f Kingston-upon-Thames v. Amec Civil Engineering [I993135 ConLR
39 - p. 178
Bouissevan v. Weil (1948) 1KB 482 - p. 7
Boyd & Forrest v. Glasgow S . W Railway Company [I9141SC 472 - p. 20
Bramall and Ogden v. Shefield City Council (1983) 29 BLR 73 - pp. 19, 20
Bremer Handelsgesell-Schaft M.B.H. v. Vanden Avenne-lzigem PVB.A. [I9781
2 Uoyds LR 109 - pp. 27, 201, 212
British Airways Pension Trustees Ltd v. Sir Robert McAlpine and Son (1995)
72 BLR 26 - p. 25
British Steel Corporation v. Cleveland Bridge Engineering Co Ltd (1981) 24
BLR 94 - p. 75
B y a n t and Sons Ltd v. Birmingham Saturday Hospital Fund [I93811 All ER
503 - pp. 9, 21
Bush v. Whitehaven Port and Town Trustees (1888) 52 JP 392 - p. 11
Capital Electric Company v. United States (Appeal No 88/965, 7.2.84) 729 F.2d
143 (1984)- pp. 128, 132
Carr v. J.A. Berriman Pty Ltd (1953) 27 AWR 237 - p. 12
Carslogie S.S. Co. v. Norwegian Government [I9521AC 292 - p. 143
Commission of the European Communities v. Ireland (1988) 44 BLR 1 - p. 73
J. Crosby & Sons Ltd v. Portland Urban District Council (1967)5 BLR 121 -
pp. 24, 27, 166
Davis Contractors Limited v. Fareham U.D.C. 119561AC 696 - p. 71
Department of Environment for Northern Ireland v. Farrans (1981) 19 BLR 1
- pp. 222, 258
Ellis-Don v. Parking Authority of Toronto (1978) 28 BLR 98 -p. 127
E.C. Ernst, Inc v. Koppers Co 476 ESupp. 729 (W.D.Pa 1979) - p. 161
Fairclough Building Ltd v. Rhuddlan Borough Council (1985)30 BLR 26 - pp.
113, 195
H. Fairweather & Co Ltd v. London Borough of Wandsworth (1987) 39 BLR
106 - pp. 76,94, 141, 143, 204
A.E. Farr Ltd v. Ministry of Transport [I96011 WLR 956; (1965)5 BLR 94 -
pp. 9, 178
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References 293
Fernbrook Trading Co. Ltd v. Taggart [I97911 NZLR 556 - p. 16

J.E Finnegan v. Sheffield City Council (1989) 43 BLR 124 - pp. 128, 140
Fratelli Constanzo SpA v. Comune di Milano [I99013 CMLR 239 - p. 73
General Insurance Co of America v. Hercules Construction 385 F.2d 13 (8th Cir
1967) - pp. 157, 161
George Mitchell (Chester Hall) Ltd v. Finney Lock Seeds Ltd (1983) 1-CLD-05-
18 - p. 118
Gilbert Ash (Northern) Ltd v. Modern Engineering (Bristol)Ltd [I9741AC 689
- p. 223
GKN Centrax Gears Ltd v. Malbro Ltd [I9651 2 Lloyds LR 555 - p. 244
M.J. Gleeson (Contractors) Ltd v. London Borough of Hillingdon (1970) 215
EG 165 - p. 76
M.J. Gleeson PICv. Taylor Woodrow PIC(1990) 49 BLR 95 - p. 207
Glenlion Construction Ltd v. The Guinness Trust (1987) 39 BLR 89 - pp. 71,
97, 148, 150, 151
GMTC Tools & Equipment Ltd v. Yuasa Warwick Machinery Ltd (1995)73 BLR
102 - p. 25
Government of Ceylon v. Chandris [I9651 3 All ER 48 - p. 143
Group 5 Building Limited v. The Minister of Community Development 1993(3)
SA 629 (A)- p. 17
Holme v. Guppy (1838)3 M & W 378 - p. 12
Hong Kong Teakwood Limited v. Shui On Construction Company Limited
(1984) HKLR 235 - p. 224
Housing Authority v. E W Johnson Construction Co 573 S W 2d at 323. -
p. 152
Howard Marine & Dredging v. Ogden (1978) 9 BLR 34 - p. 21
Imperial Chemical Industries v. Bovis Construction Ltd and Others (1993) 32
ConLR 90 - p. 25
James Longley & Co Ltd v. South West Regional Health Authority (1985) 25
BLR 56 - pp. 181, 258
John F Burke Engineering and Construction, ASBCA 8182, 1963 BCA - p.
151
Kelly & Hingles Trustees v. Union Government (Minister of Public Works) 1928
TF'D 272. - p. 17
Larut Matang Supermarket Sdn Bhd v. Liew Fook Yung [I99511 M U 375 - p.
18
Leyland Shipping Company v. Norwich Union Fire Insurance Society [I9181AC
350 - p. 143
London Borough of Merton v. Stanley Hugh Leach Ltd (1985)32 BLR 51 - pp.
24, 28, 95, 118, 154
Marsden Construction Co Ltd v. Kigass Ltd (1989) 15 ConLR 116 - p. 73
Martin Grant & Co Ltd v. Sir Lindsay Parkinson & Co Ltd (1984) 29 BLR
31 - p. 187
Mathind Ltd v. E. Turner & Sons Ltd [I9861 23 ConLR 16 - pp. 75, 222
McMaster University v. Wilchar Construction Ltd (1971) 22 DLR (3d)9 - p. 74
Michael I. Warde v. Feedex International, Inc. 119841 1 Lloyds LR 310 - p.
244
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294 References
Michael Salliss & Co Ltd v. E.C.A. Cali1 and William E Newman & Associates
[I989113 ConLR 68 - p. 30
Mid-Glamorgan County Council v. J. Devonald Williams & Partner 119921 29
ConLR 129 - pp. 25, 26, 208
Miller v. London County Council (1934)151 LT 425 - pp. 15, 119, 211
Mitsui Construction Co Ltd v. Attorney General of Hong Kong (1986)33 BLR
1 - p. 171
Moon v. Witney Union (1837): (Hudson's Building and Engineering Contracts,
tenth edition at page 113) - p. 3
Morgan Grenfell Ltd v. Sunderland Borough Council and Seven Seas Dredging
Ltd (1991)51 BLR 85 - pp. 29, 177
Morrison-Knudsen v. B.C. Hydro & Power (1975) 85 DLR 3d 186 - pp. 28,
169, 209
Morrison-Knudsen International Co Inc and Another v. Commonwealth of
Australia (1980) 13 BLR 114 - p. 21
Nash Dredging Ltd v. Kestrel1 Marine Ltd (1986)SLT 62 - pp. 29, 169, 209
Natkin & Co v. George A Fuller Co 347 F.Supp.17 (WD Mo 1972),reconsidered
626 F.2d 324 (8th Cir 1980) - pp. 157, 161
North West Regional Health Authority v. Derek Crouch [I9841 2 WLR 676 -
p. 238
Ovcon (Pty) Ltd v. Administrator Natal 1991 (4)SA 71 - pp. 71, 103, 149
Owen L Schwam Construction Co, ASBCA 22407, 79-2 BCA (CCH)- p. 152
Pacific Associates Inc and Another v. Baxter and Others (1988)44 BLR 33 -
pp. 30, 209
Peak Construction (Liverpool) Ltd v. Mckinney Foundations Ltd (1970)1 BLR
111 - pp. 14, 16, 20
Penvidic Contracting Co. Ltd v. International Nickel Co. of Canada Ltd (1975)
53 DLR (3d)748 - p. 154
Percy Bilton Ltd v. The Greater London Council (1981)17 BLR 1 (CA);(1982)
20 BLR 1 (HL)- p. 194
Perini Pacific Ltd v. Greater Vancouver Sewerage and Drainage District Council
[I9671SCR 189 - p. 13
Philips Hong Kong Ltd v. The Attorney General of Hong Kong (1990)50 BLR
122 - p. 19
Philips Hong Kong v. The Attorney General of Hong Kong (1993)61 BLR 41
(PC)- p. 19
Property and Land Contractors Ltd v. Alfred McAlpine Homes North Ltd (1996)
76 BLR 59 - p. 137
Rapid Building Group Ltd v. Ealing Family Housing Association Ltd (1984)29
BLR 5 - pp. 14, 17, 60, 116
Rees and Kirby Ltd v. Swansea City Council (1985) 30 BLR 1-p. 179
Schindler Lifts (H.K.) Ltd v. Shui On Construction Company Limited (1984)29
BLR 95 - p. 224
Secretary of State for Transport v. Birse-Farr Joint Venture (1993)62 BLR 36
- pp. 29, 178
C.J. Sims v. Shaftesbury PIC (1991)QBD; 8-CLD-03-10 - p. 75
Song Toh Chu v. Chan Kiat Neo [I9731 2 M U 206 - p. 18
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References 295
St Modwen Development Ltd v. Bowmer and Kirkland [I996138 BUSS 4 - p.

129
Strachan & Henshaw Limited v. Stein Industrie (UK) Limited (1998) 87 BLR
52 - p. 118
Sun Shipbuilding & Dry Dock Co v. United States Lines Inc. 76 US C.Cls 154
(1932)- p. 151
Sutcliffe v. Thackrah and Others (1974)4 BLR 16 - p. 30
Sydney Constructions Co No 21377, 77-2 BCA (CCH)- p. 152
Tate & Lyle Food Distribution Ltd and Another v. Greater London Council
[I98211 WLR 149 - pp. 127, 131, 139, 140, 181
Temloc Ltd v. Erril Properties Ltd (1987) 39 BLR 31 - pp. 18, 51, 211
Tersons Ltd v. Stevenage Development Corporation (1963)5 BLR 54 - pp. 20,
26
Token Construction Co Ltd v. Charlton Estates Ltd (1976)1 BLR 48 - p. 222
Tramountana Armadora SA v. Atlantic Shipping Co., SA [I9781 2 All ER 870
- p. 244
Tropicon Contractors Pte Ltd v. Lojan Properties Pte Ltd [I99112 M U 70 (CA);
(1989) 2 M U 215 (dist)- p. 212
Victoria Falls and Transvaal Power Co Ltd v. Consolidated Langlaagke Mines
Ltd (1915) AD - p. 150
Waghorn v. Wimbledon Local Board (1877):(Hudson's Building and Engineer-
ing Contracts, tenth edition at page 114) - p. 3
Wates Construction (London) Ltd v. Franthom Properties Ltd (1991) 53 BLR
23 - p. 23
Wegan Construction Company Pty. Ltd v. Wodonga Sewerage Authority [I9781
VR 67 - pp. 11, 176
Wells v. Army and Navy Co-operative Society Ltd (1902)86 LT 764 - pp. 13,
16
Wharf Properties Ltd and Another v. Eric Cumine Associates and Others (1988)
45 BLR 72; (1991) 52 BLR 1 PC - p. 24
Whittall Builders Company Ltd v. Chester-le-Street District Council (1985)
unreported - pp. 127, 133, 153, 156, 161
William Lacey (Hounslow) Ltd v. Davis [I9871 2 All ER 712 - p. 73
Wood v. Grand Valley Railway Co (1916)51 SCR 283 - pp. 153, 154
Woon Hoe Kan & Sons Sdn Bhd v. Bandar Raya Development Bhd [I97311
M U 60 - p. 18
Yorkshire Water Authority v. Sir Alfred McAlpine and Son (Northern) Ltd (1985)
32 BLR 114 - p. 82
Abbreviations Used in Case References
AC: Law Reports Appeal Cases

AD: South African Supreme Court Appellate Division
AWR: Australian Law Journal Reports
All ER: All England Law Reports
ASBCA: Army Service Board of Contract Appeals (USA)
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296 References
BCA: Board of Contract Appeals (USA)

BLR: Building Law Reports
CA: Court of Appeal (UK)
CLD: Construction Law Digest
CMLR: Common Market Law Reports
ConLR: Construction Law Reports
DLR: Dominion Law Reports
EG: Estates Gazette
F: Federal Circular (USA)
HKLR: Hong Kong Law Reports
HL: House of Lords
JP: Justice of the Peace and Local Government Review
KB: King's Bench
Lloyds LR: Lloyd's Law Reports
LT: Law Times Report
M & W: Meeson & Welsby
MU: Malaysian Law Journal
NZLR: New Zealand Law Reports
PC: Privy Council
QBD: Queen's Bench Division
SA: South African Law Reports
SC: Session Cases
SCR: Supreme Court Reports
SLR: Singapore Law Reports
SLT: Scots Law Times
SW: South Western Reporter (USA)
TPD: South African Law Reports Transvaal Provincial Division
VR: Victorian Reports
WLR: Weekly Law Reports
Forms of Contract
JCT: Joint Contracts Tribunal

Publisher: RIBA Publications Ltd
JCT63: Standard Form of Building Contract, 1963
JCT80: Standard Form of Building Contract ( J W 8 ) , 1998
IFC84: Intermediate Form of Contract (IFC98),1998
W 8 0 :Minor Works Form of Contract (MW98),1998
CDPS: Contractor's Designed Portion Supplement
Standard Form of Contract with Approximate Quantities
Fixed Fee Form of Contract
https://t.me/PrMaB
References 297
JCT87: Standard Form of Management Contract, 1998

Prime Cost Contract, PCC98, 1998
Standard Form of Building Contract with Contractor's Design, CD98, 1998
NSC/l: The Standard Form of Nominated Subcontract Tender and Agreement
NSC'4A: The Standard Form of Nominated Subcontract
ICE: The New Engineering Contract; The Institution of Civil Engineers
Authors: The Institution of Civil Engineers, The Association of Consulting Engineers
and The Federation of Civil Engineering Contractors (The Civil Engineers Con-
tracting Association)
Publisher: Thomas Telford
ICE Conditions of Contract, fifth edition, 1986
ICE Conditions of Contract, sixth edition, 1995
ICE Conditions of Contract, seventh edition, 1999
ICE Design and Build Construct Conditions of Contract, 1992
ICE Conditions of Contract for Minor Works, second edition, 1995
NEC: The New Engineering Contract; The Engineering and Construction Con-
tract, second edition
FlDIC: Fkdkration International des Ing&nieut-s-Conseils
Author: FQdkrationInternational des IngQnieurs-Conseils
Publisher: Fkdhration International des IngQnieurs-Conseils
Conditions of Contract for Works of Civil Engineering Construction, fourth
edition (The Red Book), 1987, reprinted 1992
Conditions of Contract for Electrical and Mechanical Works, third edition (The
Yellow Book), 1987, reprinted 1988
Conditions of Contract for Design-Build and Turnkey, first edition (The
Orange Book), 1995
Conditions of Contract for Construction, first edition (The Red Book),
1999
Conditions of Contract for Plant and Design-Build, first edition (The Yellow
Book), 1999
Conditions of Contract for EPC Turnkey Projects, first edition (The Silver
Book), 1999
Short Form of Contract, first edition (The Green Form), 1999
Conditions of Subcontract for Works of Civil Engineering Construction, first
edition. 1994
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298 References
Model Form of General Conditions of Contract for Use in Connection with

Home or Overseas Contracts for the Supply of Electrical, Electronic or Mecha-
nical Plant - with Erection, 1988 (MF/I), Revision 3, 1995
Author: The Institution of Electrical Engineers, The Institution of Mechanical Engi-
neers and The Association of Consulting Engineers
Publisher: The Joint IMechE/IEE Committee
FCEC: Form of SubContract (The Blue Form) 1991; CECE Form of S u b
contract, 1998
Author: The Federation of Civil Engineering Contractors (The Civil Engineering
Contractors' Association)
Publisher: The Federation of Civil Engineering Contractors (The Civil Engineering
Contractors' Association)
GC/Works/l -Edition 3: General Conditions of Government Contracts
for Building and Civil Engineering Works, prepared by The Department of the
Environment (HMSO)
GC/Works/l with Quantities (1998): General Conditions of Government
Contracts for Building and Civil Engineering Works, prepared by The Property
Advisers to the Civil Estate (PACE) (HMSO)
Standard Form of Contract, issued by the Dubai Municipality
Malaysian Standard Form of Building Contract, issued by Purtubohan Arkitec
Malaysia (PAM) m e Malaysian Association of Architects]
SIA Conditions of Contract: The Conditions of Contract, issued by The Singa-
pore Architects' Association
RIBA Model Form of Contract, issued by The Royal Institute of Architects
Miscellaneous Abbreviations
BAS: Building Automation System

BLISS: Building Law Information Subscriber Service
BQ: Bill of Quantities
CCTf&Closed Circuit Television
CESMM: Civil Engineering Standard Method of Measurement, issued by the
Institution of Civil Engineers
EC: European Commission
ECU: European Currency Unit
EEC: European Economic Community
EOT: Extension of Time
FIDIC: FhdOration Internationale des Inghnieurs-Conseils
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References 299
HMSO: Her Majesty's Stationery Office

WAC: Heating, Ventilating and Air Conditioning
ICE: Institution of Civil Engineers
ISO: International Standards Organisation
JCT: Joint Contracts Tribunal
OJ: The Official Journal of The European Commission
P & Gs: Preliminary and General Costs
PC: Prime Cost
RIBA: Royal Institute of British Architects
SIA: Singapore Institute of Architects
SMM: Standard Method of Measurement: published by the Royal Institution of
Chartered Surveyors and The National Federation of Building Trades Employers
(Building Employers Confederation)
SMM7: Standard Method of Measurement (seventh edition) issued by the Royal
Institution of Chartered Surveyors and the National Federation of Building Trades
Employers (Building Employers Confederation)
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Index
Acceleration the hearing, 243

claims for, 166 UNCITRAL Model Law, 241
costs of, 169 UNCITRAL Rules, 240
provisions for, GC/Works/l Ed3, witnesses in, 242
167 witnesses of fact, 242
Accounting practice Arbitrator
effect on evaluation of claims, 182 appointment if parties cannot agree,
Additional payment 238
failure to give notice of, 117 reasons for objection to
notice of claims for, 118 appointment, 239
Adjudication, 234 selection of, 238
1999 FIDIC, Dispute Adjudication Architect
Board, 236 independent certifier, 1
Construction Act, 234 to act fairly, 28
Dispute Review Board, 236 Award
ICE Adjudication Procedure, 235 in arbitration, 243
ICE provisions, 235
JCT provisions, 235 Bills of quantities, 7
Ambiguities building quantities, 35
in contract documents, 58 civil engineering quantities, 35
Appendices compensation for inaccurate, 8
to claim, 185 errors in, 8
Arbitration errors in composite descriptions, 8
agreed bundles, 242 ICE conditions of contract, 8
as means of resolving disputes, 236 inaccurate, 8
CIMAR Arbitration Rules, 239 incorporated as contract document,
discovery of documents, 241 8
enforcement of foreign awards, 245 JCT forms of contract, 8, 36
exchange of proofs of evidence, 243 pricing work based on, 2
expert witnesses, 242 use of, 36
foreign arbitration, 239 Build, Operate & Transfer (BOT), 51
ICC Rules, 240 breakeven point, 56
ICE Arbitration Procedure, 239 contractual structure, 52, 53
international arbitration, 240 debt equity ratio, 53
London Court of Arbitration Rules, delay, 56
241 dividends, 56
New York Convention, 245 equity & dividends, 55
offers of settlement, 244 expenditure & income, 52, 54, 55
parties agreement essential, 237 financial model, 56
pleadings, 241 PFI, 52
power to award costs, 244 return on equity (ROE), 52
preliminary meeting, 241 surplus income, 56
procedure, 241 use of FIDIC, 56
the award, 243 use of NEC, 57
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Index 301
Choice of contracts, 33 for delay to individual activities, 126

Civil engineering quantities for disruption, 145
ICE conditions of contract, clause for extensions of time, 168
57, 9 for extensions of time, summary,
Claims 117
additional payment, contractor to for finance charges, 177
co-o~erate.118 for finance charges on undercertified
additional particulars of, sums, 177
120 for ground conditions, 20
adjustment for non-recoverable for ground conditions, FIDIC, 20
delays, 141 for ground conditions, ICE clauses
adjustment for overheads and profit, 11 & 12, 21
140 for head office overheads, 127
against consultants, 29, 209 for loss of productivity, 148
against consultants by contractor, 30 for prolongation, 121
against consultants by employer, 30 formal submission, 183
against subcontractors, 223 formal submission, appendices, 185
assessment and evaluation, 181 formal submission, basis of claim,
basis and quantum, 184 184
concurrent delay - guidelines for formal submission, contract
payment, 143 particulars, 184
cost of managerial time, 131 formal submission, details of claim,
damages if employer interferes, 168 184
delay, increase in fluctuations, 174 formal submission, evaluation of
delayed release of retention, 145 claim, 184
detailed response to, 219 formal submission, introduction,
disruption (programme shows early 184
completion), 148 formal submission, statement of
disruption, cause and effect, 116 claim, 185
effect of accounting practice on formal submission, summary of
evaluation, 182 facts, 184
effect of concurrent delay on global, 24, 166
evaluation, 141 global, may succeed if appropriate,
exploitation of tender documents, 66 25
extensions of time, by contractor, 96 global, minimising exposure to, 219
failure, due to vested interests, 229 global not permitted, 24
failure, lack of notice, 83 head office overheads, Eichleay's
finance charges as part of loss or formula, 128
expense, 178, 180 head office overheads, Emden's
first submission, 227 formula, 127
for acceleration, 29, 166 head office overheads, Hudson's
for acceleration - costs of, 169 formula, 127
for acceleration if extension head office overheads, under-
insufficient, 167 recovery of, 130
for additional payment, 20, 117 independent view of strengths &
for additional payment, early weaknesses, 229
settlement, 219 loss & expense, 117
for additional payment, response to, loss & expense, 1939 RIBA form,
219 23
for cost of preparing, 181 loss of opportunity, burden of proof,
for damages, 20, 117 132
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302 Index
loss of productivity, cause and effect, Computer applications

154, 166 for extensions of time, 97
loss of profit, evidence required, Concessions
131, 138 in negotiations, 232
minimising exposure to, 90 Conciliation
negotiating margin, how decided, resolution of disputes by, 233
228 Conditions of contract
negotiation margin, 227 dispute as to terms, 76
negotiation of, 230 Consideration, 5
no bar if notice given in reasonable Construction management, 4 1
time, 121 Consultants
no provision in early RIBA forms, as certifier, to act fairly, 209
22 Contra proferentem, 20, 34
notice, additional payment, not applicable to some standard
GC/Works/l Ed3, 121 forms, 20
notice of, 83 Contract bills
notice of intention to claim, 119 amendments to contract in (with
notice of intention, ICE, 120 JCT forms), 58
notice of intention, JCT80, 120 Contract documents
particulars of additional payment, ambiguities in, 58
GC/Works/l, 121 in FIDIC conditions, 59
particulars of additional payment, in JCT forms, 58
ICE. 121 mutually explanatory, ICE
partichars of additional payment, conditions, 59
JCT80, 120 to be specified, 58
policy for dealing with, 210 to incorporate agreed changes to
prejudiced by delay in tender, 76
subcontracting, 186 Contract drawings
presentation, summary, 182 JCT80,36
prevention of, 90 Contracting methods, 35
prolongation, loss of profit, 131 Contracts
response to, 154 administration of, 77
response to, 1999 FIDIC Contracts, express duties, 77
220 implied duties, 77
response to, NEC Contracts, 220 special conditions of, 57
settlement terms, 232 Costs
site overheads (preliminaries),122 after offer of settlement in
source documents to be stated, 182 arbitration, 244
subcontractors, for delay and Counter-claims, 209, 220
disruption, 205 as defence to liquidated damages,
success rating of heads of claim, 226
228 common law, 221
under the law, 118 for defective work, 220
under the law, MF/l, 118 set-off, 221
valued at cost or rates in bills, 126 Courts
Clients' objectives, 3 4 having same powers as an arbitrator,
Commencement 238
of contract period, 78 same powers as arbitrator, SIA form,
pre-commencement meeting, 78 238
Completion Cover prices
time for, no longer applicable, 88 in tenders, 62
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Index 303
Damages co-ordination of, responsibility for,

claims for, 117 204
Dayworks, 174 extending into construction phase,
Delay 36
after completion date, 88, 106, 217 overlap with construction, 38
after completion date, general Design & build
damages for, 116 selection of contractor, 39
after completion date, SIA form of Details
contract, 88, 116 distinguished from variations, 80
apportionment of delay by Disputes
subcontractors, 206 avoidance of, 225
architect's certificate, subcontractor resolution by third parties, 232
delay, 224 resolution of, 225
by employer, 9 4 settlement of, 225
by nominated subcontractor, Disruption claims, 145
NSC/4a, 203 changed sequence of working, 146
by nominated subcontractors, 202 congestion, 146
claims for increased fluctuations, delays to individual activities, 145
174 evaluation, assessed percentage, 155
concurrent, 90, 94, 104, 215, 217 evaluation, comparison of actual
concurrent - dominant delay costs with tender, 153
principle. 143 evaluation, comparison with other
concurrent effect on payment for,
'- projects or industy statistics, 155
143 evaluation. comparison with
concurrent - guidelines for payment, productivity without disruption,
143 156
concurrent, subcontractors' delays, evaluation, earned value costing,
206, 223 163
critical, 97 evaluation, Productivity Factor (PF),
culpable (by contractor), 104 163
following concurrent delays, 106 evaluation, Which method to adopt?,
late design by subcontractor, 203 160
late issue of subcontractor's evaluation of loss of productivity,
drawings, 204 152
neutral events, 94 idle (non-productive)time, 146
non-critical, 97 interruption, 146
non-recoverable (no claim for loss of productivity, 145, 148
payment), 141 Drawings
prior to commencement by design, definition of, 204
subcontractor, 199 installation, definition of, 204
release of retention, 145 issues of, 80
single cause - not on critical path, revisions to be indicated, 80
97 to be provided by subcontractor, 203
single cause on critical path, 97 variation to design, 80
to individual activities, 126
Design Engineer
by contractor, 37 independent certifier, 1
by subcontractor, 203 to act fairly, 28
complete at tender stage, 35 Estimate
co-ordination, failure by consultants, front loading rates, 6 8
190 preparation of (for tendering), 6 8
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304 Index
European Commission delays by employer, 12

alternative specification, 73 delays following concurrent delays,
Public Procurement Directives, 63, 106
66 estimate of delay, JCT80, 96
rejection of tenders, 73 failure to give notice, 28, 95
Exclusion clauses, 118 failure to give possession under JCT
South Africa, 119 forms, 1 4
Thailand, 119 for completion of subcontract works,
Unfair contract terms, 119 200
USA, 119 for delay by employer, 9 4
Expert opinion for neutral events, 94
as means of resolving disputes, 233 for variation at time of nomination,
Expert witnesses 205
in arbitration, 242 general provisions exclude delay by
Extensions of time, 12 employer, 13
benefit of provision, 12 genuine attempt to assess necessary,
catch-all provision, FIDIC fourth 212
edition, 1 4 interference by employer, 28
catch-all provision, GC/Works/l late award of, employer's rights,
conditions, 1 4 damages, 211
catch-all provision, SIA form of late information, 214
contract, 1 4 liquidated damages invalid if no
causes of delay, 1 2 provision, 12
claims by contractor, 9 5 no direct link to additional payment,
claims for, 9 5 94
commercial considerations, 12 nominated subcontractors, architect's
computer applications, 97 consent, 203
concurrent delay, 104 not justified for renomination, 195
contents of response to claim for, not necessarily equal to period of
214 delay, 101
costs of acceleration if insufficient, notice, 9 5
167 notice, GC/Works/l Ed3, 96
critical path programme, 97 notice, JCT80, 9 5
delay after completion date, FIDIC, obstacles to settlement, 9 5
109 omissions, JCT80, 216
delay after completion date, omissions taken into account, 216
GC/Works/l Ed2, 109 onus on architect (engineer)to
delay after completion date, ICE determine, 96
conditions, 109, 115 particulars to be given, ICE, 96
delay after completion date, IFC84, particulars to be given, JCT80, 96
109 presentation of claims for, 95
delay after completion date, JCT63, presentation, summary, 117
106 records to be kept, GC/Works/l,
delay after comptetion date, JCT80, 96
109 response by architect (engineer),
delay after completion date, NEC 210
clause 63.3, 104, 117 response, SIA clause 23.2, 212
delay after completion date, period RIBA, provisions list causes of delay,
of, 110 13
delay after completion date, SIA single cause of delay - not critical,
form of contract, 88, 109 97
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Index 305
single cause of delay on critical path, for delay after completion date, 116
97 limit to, 17
time to exercise powers to grant, may exceed liquidated damages, 211
16, 211 recoverable where no provision for
time to exercise powers to grant, extension, 222
1999 FDIC contracts, 213 Ground conditions
time to exercise powers to grant, claims for, 20
damages, acceleration costs, 213 RDIC provisions, 21
time to exercise powers to grant, ICE conditions, clauses 11 & 12, 21
HDIC fourth edition, 213 information, duty of care, 21
time to exercise powers to grant, risk of unforeseen, 21
ICE contracts, 213 variable, 2
time to exercise powers to grant,
NEC contracts, 213 Head office overheads, 127
time to exercise powers to grant, adjustment for recovery in variations,
SIA clause 23.2, 212 140
audited accounts, 135
FDIC conditions basis of allocation to project cost,
contract documents, priority of, 59 182
HDIC contracts, 4, 46 claims for, 127
1999 editions, 46 cost of managerial time, 131
first edition, 46 distribution in tender, 182
fourth edition, 46 doubt cast on formulae, 127
Green Book, 46 Eichleay's formula, 128
Orange Book, 46 Emden's formula, 127
Red Book, 47 formulae, calculation of percentage,
Silver Book, 47 133
unreasonable modifications to, 59 formulae suspect for delay at end of
value engineering, 49 project, 137
Yellow Book, 47 Hearing
Finance charges, 23, 177 arbitration, 243
1999 HDIC clause 14.8, 178 Hudson's formula, 127
claims for, 177 under-recovery using formulae, 130
clause 60(6) of ICE conditions, 177
duplication in overheads, 182 ICE conditions, clause 60(6), 29
HDIC fourth edition, clause 60.10, measure of damages, 23
178 ICE conditions of contract
ICE seventh edition, clause 60(7), contract documents, clause 5, 59
178 first edition, 1945, 4
measure of damages, 23 seventh edition, 4
on uncertified sums, 177 Information
part of claim for loss or expense, issued to suit progress, 90
178, 180 late issuance of, 80
outstanding, 79
GC/Works/l systems for management, 86
standard form of contract, 4 Instructions, 80
General damages, 220 authority to give, 81
applicable if liquidated damages form of, 81
invalid, 16 in emergency, 81
burden of proof, 16 site, 8
for breach of contract, 222 verbal, 81
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306 Index
Interest, 23 for phased completion, 19

damages for failure to certify, 29 if delay after completion date, 90
Interference by employer, 28 if invalid, general damages
applicable, 16
JCT forms of contract, 4 3 Indian law, 18
contract documents, 57 invalid if delay after completion date,
Contractors' Design Portion 109
Supplement, 37 invalid if delay not covered by
Fixed Fee, 44 provisions, 13
Intermediate Form, IFC84, 4 3 invalid if extension granted too late,
JCT63, use today, 4 3 15
Minor Works Form, MW80, 4 3 invalid if no extension of time
Prime Cost, 44 provision, 13
priority of standard conditions, Malaysian law, 18
58 must not be a penalty, 221
Sectional Completion Supplement, option, general damages may
57 exceed, 211
Standard Form of Building Contract, provisions invalid if work wrongly
JCT80, 44 omitted, 12
Standard Form of Management repayment with interest, 222
Contract, 45 subcontractors' liability for, 207,
use overseas, 4 223
with Approximate Quantities, 44 Litiaation
u
with Contractor's Design, 4 5 application for stay of proceedings,

Joint Contracts Tribunal 237
RIBA contract, forerunner of, 3 Loss & expense
Joint ventures, 6 3 JCT80, clause 26.3, 94
loss and/or expense claims for,
Late information 117
extensions of time for, 214 no link to extensions of time, 9 4
Law Loss of productivity
civil law, 5 claims for, 148
combination of, 6 Lump sum, 35
common law, 4
local law, 6 Management contracting
of contract, 7 contracting structure, 40
of subcontract, 208 hybrid forms of, 41
procedural, 7 method of contracting, 38
Letter of intent, 5, 74 work packages, 39
payment for work done, 74 Management contractor
terms of payment, 75 criteria for selection, 39
Liquidated damages, 12, 220 Master programme
Enil, 18 design & construction phase, 35
calculation of amount of, 221 Mediation
certificate of non-completion, resolution of disputes by, 233
JCT63, 221 Meetings
certificate of non-completion, agreed minutes to be signed, 80
JCT80, 221 important features, 79
counter-claim for, 221 instructions given at, 80
Cyprus law, 18 minutes of, 79
FIDIC subcontract, 202, 207 pre-commencement, 78
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progress, 79 failure to give for extensions of time,
review of outstanding information, 28
80 FIDIC fourth edition, 120
Method statement ICE conditions, 26
impossible to construct as, 82 JCT forms, 28
MF/1 contract 87, 120
NEC (Engineering & Construction of claims for additional payment,
Contract), 49 117, 118
bonus, 51 of intention to claim, 120
compensation events, 96 RIBA forms, 28
contract philosophy, 50 time for giving, 26
delay damages, 51 to claim loss and/or expense,
design liability, 5 0 JCT80, 119
early warning, 50, 96
low performance damages, 51 Offers of settlement
sectional completion, 50 in arbitration, 244
Negotiating team Omissions
selection of, 231 effect on extensions of time, 216
Negotiation effect on extensions of time, JCT80,
concessions given during, 232 216
delaying tactics, 230 to have done by others, breach of
of claims, 230 contract, 12, 217
without prejudice, 230
Negotiators Particulars, 83
authority of, 231 of claims, 1999 FIDIC contracts,
Nominated subcontractors, 188 121
contractor's right to object, 190 of claims, FIDIC fourth edition, 121
contractor's right to object, ICE, 190 of claims for additional payment,
contractor's right to object, JCT80, 120
190 of claims for additional payment,
co-ordination of design, 189 GC/Works/l , 121
delay by, 202 of claims for additional payment,
delay by, JCT80, clause 25,4.7, ICE, 121
202 of claims for additional payment,
extension of time, architect's JCT80, 120
consent, 203 to be provided, 87
objection if contractor in culpable PC sums
delay, 191 abuse of, 36
PC sums for work by, 188 abuse of, provisional sums in
PC sums to properly define scope of disguise, 190
work, 189 work to be nominated, 188
reasons justifying use of, 189 Penalties, 12
renomination in case of default, 194 English law, 6, 19
renomination, right of objection, Middle East, 6
197 not enforceable, 19, 221
right to object if no extension Roman Dutch law, 6, 19
granted, 195 South Africa, 6, 19
tender procedures, NSC/l, 191 Phased completion
Notice, 26, 8 3 liquidated damages for, 19
1999 FDIC provisions, 28, 86, 120 Pleadings
condition precedent, 26, 27, 8 6 in arbitration, 241
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308 Index
Possession adjustment for non-recoverable

of site, 78 delays, 141
Preliminaries, 122 claims for, 121
adjustment in variations, 170 head office overheads, 127
Priority of documents loss of profit, 131
general rule of law, 57 site overheads (preliminaries),122
Profit Provisional quantities, 36
adjustment for recovey in variations, Provisional sums, 36
140 Public Procurement Directives, EC, 6 3
distribution in tender, 181 criteria for selection of contractors,
loss of opportunity to earn, 131 64
Programme, 82 European Commission, 6 3
allowance for PC and provisional Excluded Sectors Directive, 6 4
work, 71 notices to be published, 64
allowance for procurement, 80 Public Supplies Directive, 64
applicable to subcontractor, 186 Public Works Directive, 64
clause 33 of GC/Works/l, 104 Public Works Directive, time for
contract document, 82 tendering, procedure, 6 4
critical path, 97
1999 FIDIC clause 4.21, 83 Quantity surveyor
FIDIC clause 14, 82 liability for fees, 3
for subcontract work, 198 payment of fees, 3
ICE clause 14, 8 2 Quantum meruit, 5, 11, 29, 75, 176
impossible to comply with, 8 2 applicable even with wide variation
key dates, 8 2 clause, 11, 177
linked bar chart, 97, 98 payment for breach, 29
not usually a contract document, 97 payment pursuant to letter of intent,
obsolete, incorporation of 75
subcontractor, 187 work beyond scope of variation
of the day, 83, 9 3 clause, 11, 177
provision in GC/Works/l, 8 2
realistic, 83 Records, 83
reduced period for nominated agreement of, 85
subcontractor, 191 at commencement, 78
showing early completion, 71, 97, by architect, 85
148 by engineer, 85
showing early completion, NEC contemporay, 85
contract, 104 to be kept, 85
showing early completion, South Remedies for late payment, 179
Africa, 103 FIDIC provisions, 180
subcontractors', at tender stage, 186 finance charges, 180
tender, 71 suspension of work, 180
update to account for delay, 83 termination, 180
use of computers, 8 3 Resolution of disputes, 225
Progress, 82 by adjudication, 234
information issued in accordance by arbitration, 236
with, 90 by conciliation, 233
monitoring delay to, 83 by mediation, 233
Project management, 41 clause 66(5) of ICE conditions,
Project manager 236
role of, 37 Retention
Prolongation, 121 delayed release of, 145
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Index 309
fund to be in trust. JCT forms. 23 second edition, 9

injunction to com&l placing in trust, Statement of claim, 185
23 Stay of proceedings
provisions in 1939 RIBA form, 23 reasons for refusal of application,
RIBA forms of contract 237
model form of contract. 3 Subcontractors, 186
retention, 1939 form of contract, applicable law, 208
23 claims against, 223
standard method of measurement, claims for delay and disruption, 205
1931 form of contract, 9 delay to main works prior to
use overseas 4 commencement by, 199
widespread use of contract, 3 design by, 203
Rolled-up claims, 24, 166, 228 drawings to be provided by, 203
may succeed if appropriate, 24 extensions of time for completion of
not permitted, 24 work, 200
FCEC/CECA subcontract, 201
Sectional completion FIDIC clause 11.1, 207
provisions in contract bills not FIDlC subcontract, subclause 7.2,
effective. 76 201
supplementary conditions, IFC84, liability for liquidated damages, 207,
43 223
set-off onerous obligations to complete,
claims against subcontractors, 223 187
counter-claims, 220 order placed when current
Singapore Institute of Architects programme obsolete, 187
form of contract, 4 pay when paid, 224
Site period allowed in programme for,
access to, 78 198
possession of, 78 quotes as basis for contractor's
Site overheads tender, 186
claims for delay, 122 set-off, claims against, 223
period for recovery of additional variations after tender, 205
costs, 122 variations to work by, 204
Standard forms of contract, 4 1 Surveyor
amendments to, 58, 59 fees for measuring, 2
FIDIC conditions, 46 independent certifier, 1
GC/Works/l, 46 responsible for measuring, 2
ICE conditions, 46
JCT forms, 4 3 Tender
New ~ n ~ i n e e r Contract
in~ (NEC), accepted, employer aware of error
49 in, 74
selection of right form, 4 1 additional information to be
Standard method of measurement submitted, 72
CESMM, 9 adjudication by management, 6 8
clause 12(1)of JCT63, 9 alternative, 69
clause 2.2 of JCT80, 9 bid bond, 74
clause 12.2(b)of 1999 FIDIC, 10 causes of mistakes in, 6 5
first edition, 8 conditional acceptance, 74
incorporated as contract document, conditions, onerous terms in, 69
8 cover prices used in, 62
incorporated in RIBA contract, distribution of overheads & profit in,
1939,9 181
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310 Index
EC Directives, criteria for award, engineer's power to vay rate,

73 FIDIC, 171
EC Directives, rejection of tenders, engineer's power to m y rates, ICE,
73 171
EC policy on negotiations, 74 FIDIC, clause 52(3); 52.3, 11
errors in, 72 1999 FIDIC clause 12.3, 173
evaluation criteria, 72 1999 FIDIC clause 20.1, 173
evaluation of, 6 8 FIDIC fourth edition, clause 52.1,
invitation to, 62 172
negotiation after submission of, 74 FIDIC fourth edition, clause 52.2,
period for acceptance, 74 172
policy if invitation declined, 6 3 FIDIC fourth edition, clause 53.1,
programme, 71 172
qualified, 69 FIDIC fourth edition, clause 53.4,
qualified terms incorporated in 173
contract, 74 form of instruction, 81
rejection of, 73 ICE clause 52(3), 172
time allowed for, 64 ICE clause 52(4), 172
time for acceptance, 5 if work impossible to construct, 82
Tender documents limit of, 10
exploitation by contractors, 66 made before signing contract, 76
phased issue of, 6 5 main works not variation to
Tendering subcontract, 190
early years, 2 no provisions for, 10
interview of tendering contractors, omission to have work done by
72 others, 12
notification of ambiguities, 6 8 outside scope of variation clause,
preliminay meeting, 6 3 177
prequalification of, 6 3 percentage of contract price, 11
selection of, 62 reasons for, 10
Termination, 5, 180 sanction by architect under JCT
Time at large, 16, 111 forms, 10
burden of proof, 16 small quantities, 171
if delay after completion date, 109 standard forms of contract, 10
in case of renomination, 194 subcontract, after acceptance of
subcontractors, 203 tender, 205
Turnkey contracts, 37 time-related costs, 171
time-related costs, JCT80, 171
Variations, 10, 169 to subcontract works, 204
adjustment of preliminaries, 170 unacceptable incidence of, 37
after completion date, 216 valuation at contract rates, 169
by drawing issue, 80 valuation of disruptive element,
caused by nominated work, 205 JCT80, 173
change to original design, 35
changed circumstances, 170 Without prejudice
changed quantities, 170 negotiations, 230
changed timing of, 171 Witnesses
consequential effects, 2 3 expert, 242
due to changed quantities of fact, 242
(remeasurement),171 proofs of evidence, 242
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Construction Contract

All rights reserved. No reproduction, copy or transmission of

The author has asserted his right to be identified

First published 2001 by

This book is printed on paper suitable for recycling and

A catalogue record for this book is available

Printed in Great Britain by

Foreword to the First Edition xii

1 Brief History of Construction Contracts and Case Law

The Standard Form of Contract with Approximate

3 Tender and Acceptance 62

4 Monitoring Delay and Disruption Claims: Prevention

5 Formulation and Presentation of Claims 93

Example 4: Concurrent delays followed by subsequent

7 Response to Claims: Counter-claims

7.4 Counter-claims: liquidated damages: general damages

8 Avoidance, Resolution and Settlement of Disputes

Appendix A: Sample Claim for Extension of Time and

Appendix B: Sample Loss of Productivity Claim

The preparation and negotiation of claims has become an industry within

The recovery of head office overheads is comprehensively dealt with in

I was pleased to be asked to prepare the Foreword to the second edition

There are a number of excellent text books on construction law, contracts

Modern contracts are used in a commercial environment which has encour-

Gradually the contents of construction contracts became more sophisti-

tendering and reducing the risk of error in quantifying the work to be

Common law jurisdictions

Civil law jurisdictions

Termination - In some civil law jurisdictions, regardless of the contrac-

'If no consideration is mentioned in the contract, the Contractor shall be enti-

Consideration -Under English law, consideration is an essential element

Combinations of various laws and legal systems

The law of the contract and the procedural law

The law o f the contract

The procedural law

1.2 Bills of Quantities

Contractors who calculated their own quantities from drawings supplied by

tion, Volume IV, Chapter 11 (Caxton Publishing Company Limited), Horace

methods of measurement for building or civil engineering work and to

1.4 Extensions of Time and Liquidated Damages: Penalties

An extension of time provision is inserted in a contract for the benefit of

enable the employer, or his agent, to make an extension in the event of

responsibility, no extension could be granted and the employer's rights to

Even if a contract contains an effective extension of time clause, the

his own wrong, Alghussein ~stablishmentv. Eton College [1988] 1WLR

Penalties are not enforceable in English law. Statutory enforcement of

interpretation placed on many provisions is open to dispute at almost every

1.5 Claims for Additional Payment: Damages

Whenever there is delay, disruption or a change in circumstances or in the

recognise the problems associated with the uncertainty of ground condi-

The forms of contract in civil engineering recognised the concept of

variations where there are changes in circumstances, this type of provision

1.6 Rolled-up Claims

It is generally a requirement that the party making a claim should be able

Most building and civil engineering contracts contain provisions which

In the Tersons case neither of the ingredients stated by Lord Salmon

1.8 Interference by the Employer

1.9 Claims Against Consultants

be the case in Sutcliffe v. Thackrah and Others (1974) 4 BLR 16. It

1.10 The Future