The contract should set out the particular factors which should be taken into account in considering an extension of time request. Using our example contract, the SBCC Design & Build 2016 ("the Contract") we can see that the employer must consider:

  • Whether any of the events said to be a cause of delay are a Relevant Event;
  • Whether completion of the works (or any section) is likely to be delayed beyond the completion date; and
  • What is a fair and reasonable extension of time.

Accordingly, in order to secure an extension of time, the contractor must be able to demonstrate that completion is both likely to be delayed and that a Relevant Event is the cause of such delay (in whole or in part).

In considering an extension of time application, regard will be given to whether any delay is due to any action or inaction of the contractor or its sub-contractors, agents or employees. The Contract expressly requires the Contractor to use their best endeavours to prevent delay regardless of the cause of same.

The contractor cannot rely on their own actions or inaction to seek an extension. For example, if the contractor fails to allow a sub-contractor access to the site timeously, completion of the sub-contractor's works may be delayed which in turn may delay completion of the contract. The contractor's failure to allow timely access would, on the face of it, prevent them from relying on the sub-contractor's delay as the basis for an extension of time. At first blush, this seems straightforward. However, there is rarely a single or clear-cut cause of any delay event. The employer may have delayed in providing the contractor access, or the contractor may simply have failed properly to allocate labour to complete work which was required for the sub-contractor to start. Accordingly it is important to keep detailed, contemporary records of what happened, when and why.

Next week we will consider whether COVID-19 can be used as a reason for delay.

First published by Scottish Construction Now