Don’t delay in preparing for delays in construction

As much as you may endeavour to fulfil your contractual obligations on every construction project, there are times when forces beyond your control result in work becoming delayed.

Applying for an Extension of Time (EOT) is imperative when this occurs, and there are often a number of steps, depending on the terms of your contract, that should be taken to ensure that you are protecting yourself legally.

Understanding your full legal rights may help to mitigate the impact of liquidated and/or general damages, which could harm future applications for payment.

When can I request an Extension of Time in construction?

Even the best of project planners cannot prepare for every eventuality.

Whilst there is a consensus in the construction sector that there are a number of instances that are generally believed to be beyond the reasonable control of a contractor as to what constitutes a delay for which an EOT should be granted, much will depend on the terms of your specific contract.

Generally, these instances may include issues such as:

• Exceptionally adverse weather conditions
• Work carried out by statutory undertakers
• The employer’s failure to give access to the site
• Compliance with the employer’s instructions, including dealing with additions/variations
• Acts of prevention by the employer
• Force majeure – an event that cannot reasonably be anticipated or controlled

These are typically included in most standard form contracts, but you must confirm this before signing a contract.

While the occurrence of these events may fall outside of a person’s control, the notification of the impact they will have is entirely within your purview.

As soon as it becomes reasonably apparent that a delay will occur and there is little chance of preventing it, the employer should be made aware of it.

Although some development contracts have a prescribed time limit to issue the notification, it is advisable to issue the notification as soon as possible but always ensure you do so in compliance with your specific contract.

It should also be noted that even if you are contractually entitled to additional time by way of an EOT application, it does not always follow that you will be entitled to claim additional costs relating to that delay.

Whether or not you are able to do so will ultimately depend on the terms of your contract.

How do I claim an Extension of Time in construction?

Transparency is always the most valuable asset when trying to demonstrate that the delay is legitimately beyond your control.

As well as ensuring that your initial contract is robust and considers the need for EOT, you should also produce a well-substantiated report when filing for an EOT.

A report of this nature should include:

• A description of the delay event, including details as to why it constitutes a delay under the contract
• The date the delay began
• The expected impact on the construction program, you may also want to consider providing an updated program which takes account of the effects of the delay
• Supporting evidence such as weather records, correspondence, or site diaries
• Evidence showing that you have attempted to mitigate any delay

The onus is on you to substantiate your claim, and the degree to which this is achieved will help protect you should your employer seek to dispute your entitlement to an EOT.

Seeking independent information to corroborate your claim is the most effective way to demonstrate that you endeavoured to mitigate the delay and the steps that were taken.

Part of that claim will need to highlight the steps taken to ensure that the new deadline is reasonable.

It may be of benefit to demonstrate from where alternative or additional materials will be sourced, whether any additional labour will be required, and how construction work will be restructured to prevent additional delays.

Seeking professional legal advice can ensure that, whatever stage of the construction process you are at, your contracts are fit for purpose.

Making sure the initial contracts are realistic about deadlines and have suitable EOT provisions can prevent later difficulties, while creating a watertight EOT request will aid you in the event of a dispute.

Don’t let delays damage your reputation, speak to our construction solicitors today.