Extension of Time and Liquidated Damages on an Abuja Office Refurbishment
An architect is administering a JCT-style contract, Nigerian adaptation, for a 12-storey office refurbishment in Abuja. The contract sum is ₦1.8 billion, completion date 15 March, and liquidated damages ₦2.5 million per day. On 2 February the contractor notified the architect of a 21-day delay caused by unexpectedly hard rock at the lift-pit excavation, which required a revised method and a structural engineer's re-detail. The client's site investigation data showed weathered shale, but the rock encountered was granite. The client's project manager emails the architect: 'Do not certify any extension; we need the liquidated damages to recover our rent loss.' The contractor's claim includes 10 days for re-mobilisation after the engineer's detail arrived late. The architect's site records show the contractor was already behind programme by 8 days before the rock was found, due to the contractor's late procurement of façade samples. The architect has not yet issued a determination, and the next payment certificate is due.
1. Evaluate the contractor's entitlement to an extension of time (EOT) and state the architect's certification duty.
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Treat the events separately. The granite is a differing site condition: the client's data indicated weathered shale, so the contractor could not reasonably have priced or programmed for granite; the rock and the engineer's late re-detail are client-risk events. The contractor's notice appears timely, but the architect must check the contract's notice period and the contemporaneous records. The 8-day pre-existing delay from the contractor's late façade sample procurement is contractor risk. Using a time-impact analysis, the rock event and late detail extend the completion date by 21 days; the contractor remains 8 days late against the revised date. The architect should therefore determine an EOT of 21 days, subject to mitigation and any concurrent contractor delay within the 21 days, and not simply accept the claim's total. The certification duty is to act fairly and independently under the contract, not to adopt the client's commercial position. The architect must issue a written determination with reasons, revise the completion date, and state that liquidated damages are not payable for the EOT period but may be payable for the 8 days of contractor-caused delay.
2. How should the architect respond to the client's written instruction not to certify any extension?
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The instruction is not a lawful variation of the contract and cannot override the architect's contractual duty to certify. The architect should reply in writing, calmly and promptly: acknowledge the client's concern about rent loss, explain that refusing a valid EOT would be a breach of the contract administration role and could expose the client to a larger claim, and state that she will issue a determination based on the records. She should not alter records or delay the certificate to favour the client. If the client repeats the instruction, the architect should advise the client to take legal advice, reserve her own position, and consider whether the client is attempting to procure a false certification. Under the ARCON code, the architect must not knowingly misrepresent facts. If the conflict becomes unmanageable, she should seek guidance from her professional body or, in an extreme case, consider whether she can continue as contract administrator.
3. What records and certificate should the architect issue, and how should liquidated damages be handled?
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Before certifying, assemble the notice, site diary, progress records, the engineer's detail issue dates, correspondence on the rock, the contractor's method statement, and a delay analysis. Issue a written EOT determination identifying the relevant events, the 21-day extension, the revised completion date, and the 8-day contractor delay. The determination should separate entitlement from quantum and invite further particulars if needed. For the payment certificate, certify only work executed and materials on site in accordance with the contract; do not deduct liquidated damages unless the contract permits and the client has given the required notice. If liquidated damages are deductible for the 8-day period, state the calculation and the contractual basis. Copy the client, contractor, and quantity surveyor. Keep the certificate free of the client's 'no extension' instruction; record that the instruction was received but not complied with for contractual reasons.