Kurunegala School: Two Extension-of-Time Claims and an Approaching Liquidated Damages Clause
An 18-month contract for a LKR 900 million three-storey school building in Kurunegala uses the standard SLIA/ICTAD form of contract, with a completion date of 31 August. In early September the contractor claims 45 days for "abnormal rain" between May and July, and a further 20 days because structural drawings for the first-floor beams were issued 15 days late. The architect's site diary records 12 rain days in the period against a long-term average of 9. The contractor's own bar chart shows the first-floor beams became critical only after the rains had ended. Notice of the claim was given 40 days after the contractor became aware of the delay. The client, a provincial education authority, refuses any extension and wants liquidated damages at 0.05 per cent per day. The resident engineer has already signed the contractor's daily records without comment.
1. How should the rain claim be assessed? Work through notice, the meaning of "abnormal", and causation.
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Assess it in three steps, in this order, because failing at the first step ends the analysis.
Notice. Check the notice provision in the form actually used - commonly a period of about 28 days from awareness. Forty days is late on its face. Whether lateness bars the claim depends on the clause: some forms make notice a condition precedent, others allow the architect to consider the claim if the delay is otherwise established. The architect should determine which applies and say so expressly, rather than quietly accepting the claim.
"Abnormal". Twelve rain days against a long-term average of nine is not, by itself, exceptional weather. The test is normally whether rainfall exceeded a defined threshold - a return period, or the recorded mean for that month at a specified gauge - and the architect should obtain the Department of Meteorology records for the nearest station rather than rely on the site diary. On these figures the contractor has not made out abnormality.
Causation. Even if the weather were exceptional, the extension depends on effect on completion. The bar chart shows the beams were not on the critical path until after the rains ended, which suggests the rain delay was absorbed by float. That is the firmest ground for refusal and the one least likely to be challenged.
A defensible outcome is a refusal of the 45 days, with reasons given against each of the three tests.
2. How should the 20-day drawings claim and the overlapping delays be treated?
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This claim is stronger on principle - late information is the employer's risk - but it still has to pass the same tests.
- Was the request timely? If the contractor asked for the beam drawings only when it reached the beams, after the rains, the 15-day delay may sit wholly within a period when the contractor had other work. If the contractor gave a proper information-required-by date and the drawings missed it, the delay is attributable to the design team.
- Was the beam work on the critical path at the time? The bar chart says it became critical after the rains. A 15-day delay to a non-critical activity with float available causes no extension. If the beams had, say, five days of float, the extension would be five days at most.
- Concurrency. The two claims overlap in time. Even if both succeeded, the contractor cannot recover the same calendar days twice. The test is the delay to completion caused by each event, not the sum of the durations of the events.
Given the contractor's own programme, the likeliest defensible position is a small extension, or none, for the drawings and none for the rain - and a clear written explanation of how each was calculated. The architect should also note that the resident engineer's unchallenged signatures on the daily records weaken the employer's position on the facts; records should have been annotated contemporaneously.
3. What must the architect actually issue, and what should be avoided while the extension is undetermined?
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An extension of time can only be granted by a formal instrument under the contract - normally a written instruction or a certificate stating the extended completion date and the basis. A letter saying "we will look at it sympathetically" is not a grant, and leaving the matter open indefinitely is the worst option for everyone.
The sequence should be:
- A written request to the contractor for the meteorological records and the updated programme showing the effect of each event.
- A determination, on the evidence, of the days (if any) for each claim, with reasons, and a formal certificate setting the new completion date.
- A statement that the determination is made without prejudice to the employer's rights on costs.
What to avoid: deducting liquidated damages before the extension is determined, because if an extension is later granted the deduction was wrongful; granting an extension "to be fair" without reasons, because that hands the employer a claim against the architect; and allowing the client to instruct a refusal that the contract does not support. The architect's duty is to determine the claim honestly, not to deliver the client's preferred answer.