Extension of Time Notification and Application

This article summarizes the general steps to be taken by a Contractor in issuance of delay notices and subsequent substantiation through preparation and submission of supporting particulars commonly referred to as an Extension of Time Claim.

Experience shows that many Contractors applications for an extension to the Time for Completion fail completely or in part due ostensibly to the documentation and accompanying detailed particulars failing adequately demonstrate the Contractors entitlement as a result of a delaying event.

There are a number of elements which are essential for the contractor to clearly identify and present in the justification an Extension of Time Claim.
These are discussed later but let us first address the issue of notices.

PAM 2006 contains strict notice provisions when applying for extension to the Time for Completion as a result of a delaying event.
Failure to give proper notice may lead to a delays in and extension being granted or in the worst case denied completely.

Sub-Clause 23.1(a) of the PAM Conditions states that the Contractor shall give written notice to the Architect of his intention to claim for an extension of time and that such notice must be given within twenty-eight (28) Days from the date of the Architects Instruction or the commencement date of the Relevant Event, whichever is the earlier and the giving of such a written notice shall be a condition precedent to an entitlement to an extension of time.

Failure to comply with the requirement for a notice may not be the end of the story.
Sub-Clause 23.10 of the Conditions provides that the Architect may at his discretion give an Extension of Time after Practical Completion, whether any notice of delays has been given or not.
It appears in Malaysia that this is a very common practice and that Architects undoubtedly under pressure from the Employer or as a matter of course, elect not to award an Extension of Time during the works fearing that this will incur the Employer in claims for prolongation or loss and expense from the Contractor.
By denying or failing to grant an Extension during the works the Architect in effect forces the Contractor to mitigate exposure to LAD’s through what can be termed as constructive acceleration.
And then has an easier task of awarding an Extension of Time to cover any over-run at the end, most likely on the basis of no associated costs.

It appear Contractors have become accustomed to this approach and have in-turn adopted the practice as being normal which has resulted in many Contractors failing to adhere to the requirement for notices and instead electing for the less confrontational negotiation after practical completion.
Contractors would however be wise to comply strictly with the notice provisions rather than rely on Clause 23.10 as by doing so when they have justified entitlement does not remove the Architects ability to address the matter later but maybe on more beneficial terms to the Contractor.

Plus PM Consultant Sdn. Bhd.
Malaysia Based Japanese Project Management and Construction Management Company