Extension of Time – A few thoughts and simple tips for Contractors

When a party to a contract prepares a contractual claim, the onus of proof rests with the party making the claim. In preparing an extension of time, the claimant must identify in its claim the events that give rise to the delay or the delays. The claimant must also provide the causative effect of these delay events. In most cases, the claimant must demonstrate how these relevant delay events caused the period or periods of delay to the practical completion or substantial completion date. In some cases, programme activities can be delayed by contract variations issued by the employer’s representative and/or other delays, such as inclement weather.

For example, when a contractor has issued its programme demonstration for an extension of time, the contractor must support its extension of time with relevant evidence that the extension of time relies upon. This can be factual evidence such as contemporaneous records such as emails, dated site-based photographs (don’t forget to have the date and time stamped on the output image), and other forms of factual evidence such as monthly progress reports. However, in most cases, contractors submitting an extension of time fall short of this basic requirement.

This can be for several reasons but mainly rests upon the quantity and quality of the records and, in most cases, the location of the records on site. To overcome this issue, a practical approach is to set up an ‘Evidence’ or ‘Daily record’ folder on the site database with subfolders for daily records. This allows site management to upload as-built information in the relevant sub-folders for photographs, emails and video as proof of evidence. This may appear as a laborious task for staff but is nowadays becoming more relevant and important due to construction delays becoming more prevalent. So why not incentivise this task? It should only take site staff no more than 5-10 minutes at the end of the day.

Most construction-based software regarding document management has this facility that allows site management to upload records. Still, more importantly, it is the site staff at the coalface which have all of the records pertinent to an EOT claim. Sometimes, they don’t have a login to these systems, and one or two staff members usually have access.

Other site-based evidence capture systems, such as time-lapse cameras, are great – but only capture the substructure, superstructure and external envelope works at best.

Another form of record which is becoming an extinct animal is the handwritten daily site diary. Historically, the site diary was used by foreman and site managers alike as a means of record keeping. From experience, I have witnessed successful claimants in arbitrations using handwritten diaries when being cross-examined. For example, on one offshore project dispute where a 10,000-ton platform was being constructed on shore, a foreman witness’s handwritten markup of a drawing demonstrating the installation date of steel members and steel platform floors supporting specialist high-voltage electrical equipment in the manufacturing hall was of great benefit to the arbitral tribunal.

In a construction arbitration hearing (that was to be one of the last arbitrations in Ireland before the 2013 Construction Contracts Act), a retired senior clerk of works provided his insight with his site diary. He read it aloud word for word when being cross-examined by the claimant. This benefited the tribunal and the arbitrator. In essence, it was his shield and his sword.

Determining a contractor’s extension of time by a contract administrator or an employer’s representative must be supported with factual evidence relevant to the delay events. If the contractor has not supported the extension of time with accurate fact-based evidence, a dispute may arise between the contractor and the employer. So, in essence, get your records and your facts straight before applying for an Extension of Time.

Please contact us for a further non-obligatory discussion if you want to prepare an Extension of Time.