English courts would treat a failure to give possession on time as being fatal to

the Employer's entitlement to liquidated damages: see for example the Court of
Appeal in Rapid Building v Ealing Family Housing (1984) 29 BLR 5.

Similarly, it is unclear whether the Contractor's entitlement to costs under sub-

clause 42.2 item (b) is subject to the procedure for claims set out in clause 53
(Procedure for claims). A Contractor would be unwise to assume that notification
is not required.

"Consultation": this requirement for consultation is new to the 4th Edition and
adds an element of natural justice to the Engineer's deliberations. It is subject to
clause 2.6 (Engineer to act impartially) and the Engineer must make up his own
mind impartially.

A curious feature of the drafting of this clause is that the failure to give
possession for which extension of time and costs may be granted is a failure to
give possession in accordance with the clause 14 programme or the Contractor's
reasonable proposals and does not deal with a failure to grant possession as
specifically prescribed by the contract. This is because this sub-clause refers to
"failure on the part of the Employer to give possession in accordance with the
terms of sub-clause 42.1" which only imposes an obligation to give possession
where the contract is otherwise silent. This point is unlikely to be significant as
the clause 14 programme will no doubt take any prescribed possession
sequence into account. The Contractor will be entitled to an extension of time
under clause 44.1(d) "any delay, impediment or prevention by the Employer" and
will be entitled to his costs as damages for breach of contract. Damages would,
however, be less satisfactory to the Contractor as the Engineer would not be
entitled to determine such damages and include them in certificates. It would be
in the interests of both parties to resolve this discrepancy.

42.3 It appears that the permanent access to the site is to be provided by the
Employer only if the contract so provides. Otherwise, clause 11.1 (Inspection of
Site) requires the Contractor to have made due allowance in his tender for
access. Any temporary rights of way or special permissions are to be obtained by
the Contractor. In practice, the distinction between permanent access and
temporary rights of way will often be far from clear. Short of making one party
responsible for all such matters, there is little that can be done in the contract to
resolve the potential uncertainty.

If special or temporary wayleaves or additional facilities are only required in order

to enable the Contractor to execute a variation instructed by the Engineer, the
Contractor should be reimbursed for costs incurred which he could not possibly
have allowed for. The draftsman has not considered this situation and a
Contractor must rely on the words "required by him" to argue that variations and
the associated wayleaves etc are required by the Employer. Alternatively, the
Contractor must bear the costs and seek to recover the outlay in the rates fixed
under clause 52 (Valuation of variations).

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CLAUSE 42.3 (Rights of way and facilities)
The Contractor shall bear all costs and charges for "special or temporary rights of
way required by him in connection with the access to the Sites." The word
"wayleaves" has been removed from the clause and its title. It is presumed that
the reason for the change was to do away with a somewhat obscure term.
English property lawyers might seek to argue however that right of way is a
narrower concept than wayleave but the difference is unlikely to be significant in
practice.

CLAUSE 43 : Completion of work on time

This clause provides the basic obligation upon the Contractor to complete the
works on time. He must substantially complete the whole of the works within the
given period subject to any extensions granted. If the project has been divided up
into Sections, then he must complete each Section within the specified period,
again subject to any extensions.

The wording of this clause is materially different from the 3rd Edition but the
principle has been retained. If it is preferred to express this clause in terms of
dates rather than periods, Part II provides alternative wording.

The obligation upon the Contractor is not, in reality, to complete by the specified
date or any current extended date but to complete on or before the date finally
settled upon as the extended date. Clause 44 (Extension of time for completion)
envisages a delay of at least 8 weeks (28 days for the Contractor's notice; 28
days for the detailed claim) before the Engineer begins his own investigation and
that must be followed by consultation before a determination is made. There will
therefore very often be a period of uncertainty as to the date by which the
Contractor must complete. If the delay is a continuing one, clause 44.3 (Interim
determination of extension) applies and the uncertainty will be even more
prolonged. For the position on the deduction of liquidated damages during this
period, see clause 47.1 (Liquidated damages). For a comment on implied
acceleration orders see clause 46.1 (Rate of progress).

"...any Section required to be completed...". This clause should be read with

clause 20 (Care of Works),clause 44, clause 47 and clause 48.2 (Taking-over of
Sections or parts) to follow through the principal provisions dealing with Sections,
a new defined term in this edition.

As the Time for Completion is defined at clause 1.1 (c)(ii) in terms that are similar
but not identical to those contained in this clause, it is perhaps surprising that this
clause does not simply oblige the Contractor to complete the works by the Time
for Completion. In any event and in view of the clause title, it would be sensible to
ensure that this clause and the definition accurately reflect one another.

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CLAUSE 44 : Extension of Time

This clause provides the mechanism for extension of time to be granted. If the
Contractor is fairly entitled to an extension, the Engineer must grant one, having
first consulted with the parties. The qualifying grounds are as follows:-

-extra work
-other grounds "referred to in these Conditions"
-exceptionally bad weather
-Employers' delays
-special circumstances

The Contractor is to give notice of the delay within four weeks and is to submit
detailed particulars four weeks later.

If the delaying event is continuous, provision is made for interim and final
particulars and the determination of interim and, after consultation, final
extensions. The final extension may not reduce the interim extensions granted.

Clause 44 contains some major changes as compared with the 3rd Edition. In
particular item (d) of sub-clause 44.1 is new as is the two-stage notification
process in sub-clause 44.2. Sub-clause 44.3 is entirely new.

44.1

"(a) The amount of or nature of extra or additional work." Clause 51

(Variations) permits the Engineer to order:-

- increased work
- decreased work
- omissions
- changes to the character/quality of the work,
its position, its sequence
- additional work

Although the word "extra" is not used elsewhere in this context in the contract, it
may be that "extra or additional" reflects the distinction between the increase in
quantities at clause 51.1(a) and the addition of new work at clause 51.1(e). On
this assumption, this ground for extension of time covers the first and last items
in the above list only. A decrease in quantities or an omission could have time
consequences and it is obvious that any one of the changes listed could cause
delay to the works. Unless one treats a change as an omission and an addition,
which is artificial, changes are not obviously covered and one may have to resort
to trying to push them into (b) "any cause of delay referred to", (d) "any delay,
impediment or prevention by the Employer" or (e) "other special circumstances".
For an alternative interpretation of the word "extra", see the discussion under

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clause 51.2 (Instructions for variations) in relation to the granting of extensions of
time for "automatic" changes in quantities.

In the UK, at least, if a change was ordered by the Engineer which caused delay
but for which the extension of time clause made no provision, it would be
arguable that time was at large and the Employer's ability to recover liquidated
damage was lost. See on time at large Peak Construction v McKinney
Foundations (1970) 1 BLR 114.

For comment on the Contractor's right to extensions of time in relation to work

which is the subject of provisional sums, see under clause 58.2 (Use of
Provisional Sums).

"(b) any cause of delay referred to in these Conditions". This wording, which is
shared with ICE 5th and ICE 6th, is not without ambiguity. Does it only refer to
clauses where there is express reference to delay, extensions of time and clause
44 or could it also refer to clauses which deal with events which would frequently
cause delay but have no express reference to extensions of time, such as clause
17.1 (Setting-out) or clause 20.3 (Loss or damage due to Employer's risks)?
Express references to clause 44 can be found in the following clauses:-

- clause 6.4 (Delays and cost of delay of drawings)

- clause 12.2 (Adverse physical obstructions or conditions)
- clause 27 (Fossils)
- clause 36.5 (Engineer's determination where tests not provided for)
- clause 40.2 (Engineer's determination following suspension)
- clause 42.2 (Failure to give possession)
- clause 69.4 (Contractor's entitlement to suspension of works).

Express reference to the word "delay" is to be found only in clauses 6.4, 27, 42.2
and 69.4, all of which are in the above list.

It may also be possible to argue for a construction of these words as meaning

anything referred to in the conditions which causes delay. However, as such an
interpretation would probably include the Contractor's delays, success is unlikely.

"(c) exceptionally adverse climatic conditions." The intention is that the

Contractor should allow for all the usual vagaries of the weather. The use of the
term "climatic" as opposed to the more usual "weather" may have a broadening
effect on this ground for extension. For example, a flood which does not result
from exceptionally heavy rainfall in the area of the site might be covered by
"climatic" but not by "weather".

Comparing "exceptionally adverse" with "exceptional adverse" as used in the 3rd

Edition and ICE 5th and ICE 6th, one sees a subtle but important change of
emphasis. Under those forms, the weather has to be both exceptional and
adverse. In these conditions, the weather need not be unusual, it must only be
exceptionally adverse. This raises the possibility that it could be conditions on

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site that make the weather exceptionally adverse rather than anything unusual
about the weather. Equally, if the weather was very unusual but did not cause
exceptional difficulty, an extension could legitimately be declined.

This item should be read with clause 11.1 (Inspection of Site) which requires
tenderers to take note of the "hydrological and climatic conditions", clause 12.2
(Adverse physical obstructions or conditions) which excludes climatic conditions
from the effect of the clause, clause 20.4 (Employer's risks) item (h) "any
operation of the forces of nature" and clause 40.1 (Suspension of work).

(d) "any delay, impediment or prevention by the Employer". In the UK at least,

there needs to be clear words that allow an extension to be granted for a breach
of contract by the Employer. See, for example, Peak Construction v McKinney
Foundations (1970) 1 BLR 114. It seems likely that the words used are
sufficiently clear to cover such breaches although the absence of express
reference to breach invites an argument to the contrary. It is submitted that as
delays, impediments and preventions are clear examples of breach, if not
authorised in the conditions by provisions such as clause 38.2 (Uncovering and
making openings) or clause 51.1 (Variations), the quoted words are sufficiently
clear to cover breach.

Delays by the Engineer should also be covered by the words, at least in respect
of those actions of the Engineer which are performed as agent for the Employer.
However, the contrary is arguable: there is no reference to "servants or agents"
either here or in the definition of the Employer at clause 1.1(a)(i). Agents are
referred to in clause 22.2 (Exceptions) and clause 24.1 (Accident or injury to
workmen) so, it would be argued, the draftsman has used the term where he
intended it to apply. The fact that agents are not mentioned here is thus
deliberate. Further, the Engineer's defaults have been covered elsewhere in
clauses such as clause 6.4 (Delays and cost of delay of drawings) and clause
17.1 (Setting-out). It is submitted that this argument, which is unlikely to have
impact outside common law jurisdictions, is essentially unmeritorious however
sustainable by the rigorous application of the canons of the construction of
contracts. The intentions of the parties are clear: time should not be set at large
due to some failure of the Employer or his team when an extension of time is
perfectly capable of doing justice between the parties. Arbitrators are unlikely to
frustrate this purpose on such narrow grounds.

There is no provision under this contract for extensions of time due to delay by
subcontractors nominated by the Employer. This is in contrast to some English
forms which balance the Employer's right to choose a subcontractor by placing
part of the risk of that subcontractor's default upon the Employer. A Contractor
might nevertheless be entitled to an extension of time if the selection of the
defaulting subcontractor was sufficiently negligent as to amount to delay,
impediment or prevention by the Employer. It must be noted however that the
Contractor is given the right to raise reasonable objection under clause 59.2
(Nominated Subcontractor; objection to nomination). If the Contractor failed to
raise an objection, he may have no grounds for extension.

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(e) "other special circumstances which may occur other than through a fault of or
breach of contract by the Contractor or for which he is responsible". "Special" in
the Concise Oxford Dictionary means "of a particular kind, peculiar, not general;
exceptional in amount, degree, intensity etc". Thus, it is clearly not a catch-all
clause as merely routine delays would seem to fall outside these words. There is
however little authority on the meaning of these words leaving the Engineer and
arbitrator with virtually unfettered discretion.

It is not immediately obvious why this item alone has been qualified by reference
to the Contractor's default. It must apply equally to items (a) and (b). The word
"fairly" would seem to achieve the necessary result. The inclusion of the specific
exception could indeed have the effect of undermining the interpretation of
"fairly": why, it would be argued, would the draftsman have included the
exception in item (e) if "fairly" is intended to mean the same?

"Fairly to entitle ..." This sub-clause is phrased in such a way as to define the
Contractor's entitlement to an extension of time and then make it mandatory for
the Engineer to determine and grant the Contractor his entitlement. Compare
this with ICE 5th where the Engineer is obliged only to "make an assessment of
the extension of time (if any) to which he considers the contractor entitled." In
practice, the difference may not be significant but the distinction could be
sufficient to encourage an argument that the Engineer is obliged to grant the
Contractor's fair entitlement. Thus it could be said that the Employer's obligation
in relation to certification is to procure that the Engineer certified fairly. This
would be going considerably further than the obligation recognised by English
law at present, which only places an obligation upon the Employer to ensure that
the Engineer makes the determination and that he is free to do so fairly under
clause 2.6 (Engineer to act impartially). For further discussion on the Employer's
duty, see under sub-clauses 2.1 (Engineer's duties and authority) and 2.6.

There is no express obligation upon the Contractor in this clause to take all
reasonable steps to mitigate the effect of delays, such as would be found in
many English standard forms. There is an obligation in clause 41.1
(Commencement of Works) to proceed "with due expedition and without delay"
but, it is submitted, it is the phrase "such as fairly to entitle" which ensures that
the Contractor will not receive extensions of time for reasonably avoidable delay.

"Any Section or part thereof ...". A section is defined as a portion of the Works
specifically identified in the contract as a Section. A part is therefore a part of the
Works which is not so identified. Under clause 47.2 (Reduction of liquidated
damages), provision is made for the reduction of liquidated damages where a
part of the works has been taken earlier than the whole of the works or the
section of the works of which it forms part. However, it is not necessary for that
part to be the subject of a separate award of extension of time. The effect could,
however, be to allow the Engineer to grant an extension of time to a narrowly
defined part of the site and thereby increase the Contractor's liability for
liquidated damages.

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"...after due consultation with the Employer and the Contractor". This
requirement upon the Engineer to consult with the Employer and Contractor is
new to these conditions. Indeed, in sub-clause 44.3, the requirement to consult
was only added with the Editorial Amendments made in 1988. The objective is to
add an element of natural justice to the decision-making process and to ensure
than Engineers do not speak exclusively to their paymasters prior to making
important decisions. Consultation is not intended to alter in any way the
Engineer's obligation to make an independent decision and clause 2.6 (Engineer
to act impartially) is intended to override. Presumably, a determination of the sort
provided for in this clause would be covered by clause 2.6 (Engineer to act
impartially) item (d) "action which may affect the rights", although determinations
other than of value are not expressly referred to.

The timing of the grant of the extension is not catered for in the clause which only
says it must be after consultation with the parties. Clause 1.5 (Notices, consents
etc.) has removed the need to imply a term: the determination may not be
unreasonably withheld or delayed. It is submitted that this imposes a duty on the
Employer to ensure that his Engineer performs: see the English case of London
Borough of Merton v Leach (1985) 32 BLR 51. As to whether a failure to
determine could ever cause the extension of time machinery to break down,
leaving time and damages "at large".

Concurrent delays: a perennial problem in relation to extension of time provisions

is how to deal with circumstances where two causes of delay overlap. There is
no problem if the two causes of delay are the responsibility of the same party
with the same financial consequences but there is difficulty if the overlapping
delays fall into two of the following categories:

(i) delays only the responsibility of the Contractor: no extension of time or

reimbursement of costs, liquidated damages deducted;

(ii) neutral delays, where the Contractor receives extension of time but no
reimbursement of costs; and

(iii) delays wholly the responsibility of the Employer where the Contractor
receives extensions of time and reimbursement of costs.

This problem. which has been the subject of much comment and debate, has not
been addressed, let alone resolved by the current clause. There is consensus, in
the UK at least and in the absence of conclusive authority, that if overlapping
delays fall into categories (ii) and (iii) above i.e. a neutral delay such as the
weather and a delay which is wholly the responsibility of the Employer such as
late possession of the site, then these delays should be treated as the
responsibility of the Employer and the Contractor should receive his
reimbursement. It is the combination of categories (i) and (ii) and categories (i)
and (iii) that cause the greatest difficulty. These questions will be addressed in
broad principle first followed by an examination of the contract conditions:

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