Assessing an Extension of Time Claim on a Road Rehabilitation Contract

Event 1: exceptional rainfall, 38 days.

The outcome depends on the contract wording, and this must be checked before anything else. Under a typical FIDIC-style contract, adverse climatic conditions are expressly excluded from 'physical conditions' and are a contractor risk unless there is a specific clause granting time for exceptionally adverse climatic conditions. Many locally used forms do contain such a clause. If it does, the contractor is entitled to time but generally not to cost, because weather is not an Employer risk. If it does not, there is no entitlement to time or money, and the loss falls where the contract places it. A 1-in-30-year event supports 'exceptional', but only if the contract's test is exceptional rather than unforeseeable.

Event 2: water main relocation, 62 days.

The water board is a third party, but the question is who carried the risk. If the main was an Employer-provided utility whose relocation was the Employer's responsibility or the responsibility of another Employer contractor, this is an Employer risk and normally gives both time and cost, without profit. If the contractor was responsible for coordinating the relocation under its own programme, the risk is its own.

Event 3: instructed variation, 190 million.

There is clear entitlement to time under the variation clause if and to the extent that the extra 2.4 km of drain and the thicker sub-base delay completion. The 2.4 km of side drain is likely to be on or near the critical path. The thicker sub-base over 3 km may add time only if it changes the construction sequence or the material supply. Cost entitlement is for the variation works valued at contract rates, plus any demonstrable time-related cost caused by the extension, not for the whole works.

The concurrency point is decisive. The rainfall in months 3 and 4 overlaps the water main delay. Time cannot simply be added: only the delay that is critical and not concurrent with another event, and not with the contractor's own delays, is recoverable. A 100-day total from three overlapping events is almost certainly overstated.

Method: prospective time impact analysis against an accepted programme.

The starting point is the accepted baseline programme, not a programme prepared after the events. For each event the Engineer should:

1. Take the programme status at the date the event occurred, from contemporaneous progress records.
2. Insert the event as an activity or constraint with realistic duration and logic links.
3. Run the programme and measure the shift in the completion date.
4. Record that shift. Then move to the next event.

This is a windows or contemporaneous-period analysis. It has the merit of showing which event actually drove completion and of exposing concurrency.

A 'global' claim is not acceptable because it attributes all delay to a list of events without demonstrating the link between any event and the completion date. It cannot be tested, and it fails as soon as a contractor-caused delay exists.

A simple arithmetic reality check also helps: 38 + 62 + (variation delay) would have to exceed 100 days and all be critical to support the claim. It is possible, but on these numbers it would require the variation to add a substantial period, which a 2.4 km drain may or may not do.

Records to examine

• The baseline and updated programmes, with the acceptance dates.
• Daily site diaries, plant and labour returns, and the Engineer's daily reports.
• Weather station data from the nearest station and the contractor's own rainfall gauge, compared with the days claimed.
• Progress records: quantities achieved against planned, and the S-curve, to test whether the critical path was actually where the contractor says.
• Correspondence with the water board, including the date the relocation was requested and agreed.
• The instruction for the variation and the date of its issue.

The absence of site diaries for two of the three months is a serious evidential gap. Under most contracts, a party that cannot prove its case loses on the unproven part. That is a point for the Engineer to state plainly, not a reason to reject everything.

Do not value the claim as a lump sum. Break it down.

1. Variation works. Value the extra drain and the thicker sub-base by measurement at bill or contract rates, or by a new rate where there is no applicable rate. Estimated at 190 million by the contractor, this must be checked against quantities, not against the estimate.

2. Prolongation cost. Only the period of extension actually granted, and only for the time-related items that are genuinely on site longer: site staff, supervision, site facilities, insurance, performance security, plant standing, overheads. The claim must be built up per month, with payroll and invoices. Plant on standby is recoverable only to the extent that it could not reasonably be redeployed; the Engineer should test this, because a road contractor usually can redeploy.

3. Which events carry cost. Costs arising from weather are not recoverable under most contracts, so any prolongation cost attributed to the 38 days of rain should be removed. Costs arising from the water main delay are recoverable only if that was an Employer risk. Costs arising from the variation are recoverable to the extent that the variation delayed completion.

4. Concurrency again. Where an Employer-risk delay runs concurrently with a contractor-risk delay, common practice under these contracts is that the contractor gets time but not money for the concurrent period. The cost claim should be reduced accordingly.

5. The variation order should also be checked for over-measurement: 2.4 km of drain and 100 mm extra sub-base over 3 km of 7 m carriageway is about 2,100 m3 of extra material, which is a measurable quantity, not an estimate.

Recommendation to the Engineer

1. Reject the global claim as presented, and require a time impact analysis and a priced breakdown within a stated period.
2. Grant time for the variation event, and for the water main delay if the contract places that risk on the Employer, on a windows basis.
3. Decide the weather question on the contract wording, not on sympathy; if the clause exists, grant time and no cost.
4. Pay the measured value of the variation, and consider an interim payment for the demonstrable prolongation cost once the breakdown is submitted, to avoid the dispute escalating.
5. Check the notice provisions: if a notice was given late, the time bar may defeat an otherwise valid claim.
6. If agreement is not reached, refer the matter to the dispute adjudication board rather than let it accumulate to the end of the contract.