Tutorial 5

1. Describe the definition of extension of time clause as stipulated in PAM2018 /

JKR 203A.

Construction contracts generally allow the construction period to be extended

where there is a delay that is not the contractor’s fault. If the contractor is of the
opinion that the completion of the works is or will be delayed beyond the
Completion Date by any of the relevant events that stated in Clause 23.8, the
contractor may apply for the Extension of Time. The purpose of EOT is to ensure
the contract is valid, to avoid penalty to the Contractor and to modify the liability
of the contractor to complete the works by the date for completion and to
Liquidated Damage to the client upon the failure of the contractor to meet the
deadline. Under the PAM Contract, a fair and reasonable EOT can be given to
the contractor provided the contractor must use his best endeavours to prevent
delay in the progress of the works and he must give written notice to the Architect
within the due time of 28 days. Therefore, the reasons for claiming EOT are
based on the ‘relevant events’ under Clause 23.8 and the event impacts the
critical path of the contractor’s work programme.

2. Describe the general procedural requirements to apply for extension of time; in

the event a main contractor / nominated sub-Contractors work is delayed.

First of all, the general procedural requirements for contractor/ sub

contractor to apply for extension of time in PAM 2018 is the Sub-contractor/
contractor must apply to Architect in writing for EOT and the notice must be
given within 28 days from the AI or confirmation of AI or commencement of the
relevant events stated in clause 23.8. Moreover, stating the estimated EOT
required and supported with particulars of the cause of delay in clause 23.8.
Next, the Architect must respond to Contractor if particulars of causes /
information is inadequate for his assessment within 28 days of receiving
Contractor’s notice. The contractor must respond within 28 days from the
receiving Architect’s reply or within such period of time as stated by Architect in
writing and to furnish all relevant information. The Architect must grant EOT
within 6 weeks of receiving sufficient particulars for assessment or to reject
Contractor’s application of EOT. Furthermore, Architect may issue an EOT or a
written notice of rejection before or after the completion date. It is very important
to ensure the correctness when deducting the liquidated damages(LD). So, if the
contractor fails to complete the works by the relevant completion date, the
Contract Administrator shall issue a certificate to that effect. If the extension of
time is made after the issue of such certificate, the extension shall cancel such
certificate and the Contract Administrator shall issue a further certificate.

3. Describe the roles of the architect in the application for an extension of time by
the main contractor / a nominated sub-contractor.
The role of the Architect in the application for an extension of time (EOT)
by the main contractor or a nominated sub-contractor is that the Architect must
grant EOT within 6 weeks of receiving sufficient particulars for assessment or to
reject the Contractor's application of EOT. Next, the Architect may issue EOT
certificate or written notice of rejection before or after the completion date. If the
information is insufficient, the Architect shall inform Contractor to resubmit the full
particulars within another 28 days. According to PAM 2018 Clause 24.4, the
Architect will be assisted by consultant quantity surveyor (CQS) to determine the
loss and expense claim submitted by Contractor. The Architect shall approve the
loss and expense claim that is included by CQS in the interim certificate. EOT
can be granted by an Architect after Certificate of Non-Completion (CNC) has
been issued. If the Contractor is entitled to claim EOT, the Architect will fix a new
Completion Date. The Architect shall notify every Nominated Sub-Contractor in
writing of each decision of the Architect when fixing a later Completion Date.

4. State the importance of the certificate of extension of time issue by an

architect.
The importance of the certificate of extension of time issued by an architect
is contractual advice to the Employer and Architect to avoid breach of contract.
Other than that, contract documents must be properly done to avoid any
discrepancy in or divergence between any of the contract documents and any
subsequent documents. A project overrun due to two or more effective causes of
delay which have approximately equal contributory influences is denoted by a
concurrent delay. Each concurrent cause of delay could have an equal delaying
effect or alternatively could have significantly unequal effects. If a contractor
seeks to rely on late instructions as entitlement for extension of time and at the
same relevant time the contractor is also delayed by events for which it is
responsible, the architect or contract administrator will need to satisfy himself that
the delay caused by the late instruction was the dominant delay in order to award
an extension time. Henry Boot Construction Ltd v Malmaison Hotel Ltd (1999)
held that in assessing a claim for an extension of time, the architect or contract
administrator is entitled to take into account matters which he considers to have
delayed the works but are not relevant events. He would be entitled to consider
the contractor responsible for concurrent delays when establishing whether or
not a relevant event has in fact caused a delay. The question for consideration by
the architect or contract administrator when there are competing causes of delay,
where one of which is a relevant event and the other is not, is which cause had
been the dominant cause of delay. Last but not least, EOT can be granted by
Architect after CNC has been issued and the relevant event cause the EOT
cannot be ascertained by Architect at the same time before CNC is issued.