construction law assignement

1. SCHOOL OF ARCHITECTURE, BUILDING
AND DESIGN
Bachelor of Quantity Surveying (Honours)
CONSTRUCTION LAW
Lecturer: Wong Chong Wei
Date of Submission: 20st June 2018
Student Name Student ID
Chuang Jing 0322934
Jackson Ting Shii Hang 0324326
Liu Wei Qian 0322969
Michael Chang 0319198
Preti Roxane Marie Alyzee 0334005
Than Lek Mei 0313538

2. a) The Contractor fails to apply an extension of time before the project completion date, can
the Superintending Officer grant an extension of time to the Contractor?
Under PAM 2006, there are 24 ‘relevant events’ that entitles the Contractor to claim
for extension of time (EOT) under clause 23.8 where 15 relevant evens are caused by the
employer and 9 relevant events referred to neutral events. Refer to appendix for the relevant
events caused by employer and neutral event. Relevant events caused by the employer entitles
the Contractor to claim for EOT, loss and/or expense whereas relevant events caused by neutral
events the Contractor is only entitled for EOT but not to loss and/or expense.
To entitle the Contractor to claim for EOT, under Clause 23.1 the Contractor is required
to submit written notice and particulars if the Contractor in his judgement where works will be
delayed to the Architect which is the Superintending Officer his intention to claim within 28
Days from the date of AI, CAI or commencement of the relevant events stated in Clause 23.8
depending on which event is ealier (Clause 23.1 (a)). A following official application has to be
submitted by the Contractor within 28 days of end of clause of delay (Clause 23.1 (b)). If the
Contractor fails to submit the subsequent application, it will be deemed that the Contractor has
evaluated the relevant event which will not cause any delayed. In the opinion of Architect that
the submitted information is insufficient, he may inform the Contractor for further detailes
within further 28 Days or any period stated by the Architect in writing (Clause 23.3) (PAM,
2006).
With this precedent rules stated above, the Contractor from the question above is not
entitled for EOT if he failed to submit the application of EOT within 28 Days (or within any
extended date), it is deemed that the Contractor has assessed the causes and completion date
will not be delayed and Contractor has waived his rights to any EOT.
However, the Architect is able to grant EOT retrospectively under Clause 23.4 that
states: “The Architect may issue the written notice of rejection or the Certificate of Extension
of Time before or after the Completion Date.” This implies and permits the Architect to make
and communicate his decision on the application of Contractor retrospectively, in the discretion
of the Architect. There are several situations that enables the Architect to grant EOT
retrospectively where under Clause 23.1 (b) and Clause 23.3 the Contractor has submitted the
further requested particulars later than the Completion Date. Another situation would be where
Contractor has made his application 6 weeks less than the Completion Date or the actual
extension of time could not be determined after the Completion Date has passed (PAM, 2006).

3. In the verdict of Engineering Construction v Attorney General (1993) it was held that EOT can
be granted retrospectively (Lim, 2015).
Another clause that entitles the Contractor to be granted EOT after the issuing of
Certificate of Non-Completion (CNC), under Clause 23.9 that states “Where a Relevant Event
occurs after the issuance of the Certificate of Non-Completion, the Architect shall grant an
extension of time. The extension of time granted shall be added to the Completion Date of the
Works or any section of the Works.” Architect is able to grant EOT where there will be new
completion date fixed and nullified the CNCin which it shall be read together with Clause 23.3
(PAM, 2006). If any surplus liquidated damages are being retained, the employer is required
to return it to the Contractor. Nevertheless, if the Contractor still fails to comply with the new
completion date, the Architect shall issue a new CNC (Lim, 2015).
Alternatively, under Clause 23.10 the Architect is allowed to review the extension of
time after Practical Completion in his discretion and opinion that a reasonable new Completion
Date should be fixed in regards to any of the relevant events by reviewing the previous decision
or relevant events that have been notified by the Contractor (PAM, 2006). Any of this review
are not allowed to decrease the EOT that has been fixed or granted. Any of the review that have
affects the amount of liquidated damages, the employer similarly is required to return it to the
Contractor within the period of honouring certificates (Lim, 2015).
Whereas for JKR Standard Form of Contract PWD 203A 2007, Malconlaw (2012)
stated that clause 43 contains provisions for extension of time (EOT) and monetary claim in
the event of delay. The relevant events causing delay which shall be the ground for the
Contractor to claim for EOT. Two categories of events that enables the Contractor to stated by
the Entrusty Group:
i. “Category 1 – Natural events, e.g. force majeure, exceptionally inclement weather, and
ii. Category 2 – Defaults by the Employer and/or his agents, e.g. late decision of the
Architect/S.O., late site delivery, compliance with the Architect/S.O., delay by the
Employer’s agents, delay by nominated sub-Contractors/ suppliers, etc.”
In clause 43.1, it stated that the contractor has to give written notice to apply EOT and
in the opinion of said officer where works are expected to be delayed or has been delayed
beyond the date for completion or beyond the extended date for completion under any relevant
events, the officer in his opinion can grant EOT (Lee & Tan, 2012). Other than that, clause

4. 50.2 stated “if the Contractor suffers delay and/or incurs expenses in complying with the
instruction under clause 50.1 (a), and in resumption of the Works, and if such delay and/or
expenses was not foreseeable by the Contractor, the Contractor shall give notice for extension
of time under clause 43 and the provisions thereof shall apply accordingly”. Norgainy, 2014
clarified that the Contractor will not be entitled to EOT if it is caused by the hi"s negligence
and fails to mitigate including the entitlement to payment of loss and expense in Clause 50.1
(b).
In London Borough of Merton v Stanley Hugh Leach Ltd [1985], the judge stated that
the contractor has to provide notice as this is a condition precedent to S.O’s duty to give EOT.
S.O is under no duty to consider whether completion of the works is likely to have been delayed
until the contractor has given notice of the cause of delay (Norngainy, 2014).
From the clause stated above the S.O is able to grant EOT to the Contractor provided
that the Contractor give a written notice if the event has been or likely has been delayed beyond
the date of completion or beyond the extended date for completion. Moreover, the Contractor
requires to submit the Accompaniments Effects Period which are the particulars of expected
effects with an estimate of EOT required for a reasonable estimate. In this way, the Contractor
will have a clear understanding on how to plan for the project and will lead to the preparation
of a proper EOT claim for the consideration of the S.O.
Usually, when an event which happens before the contractual Time for Completion,
causes a delay for the Contractor work, the Contractor ought to make a claim for an extension
of time (Clause 44.2) (“Contracts: advanced questions General Question/Answer | International
Federation of Consulting Engineers", 2018). After receiving the claim from the Contractor, the
Engineer/Employer has to respond in a short time.
If the Contractor is late, he may still be entitled to an extension of time even if the event
happens after the contractual time for completion. This demand of extension of time can be
made if the event caused him more delay and if he wasn’t responsible (“Contracts: advanced
questions General Question/Answer| International Federation of Consulting Engineers", 2018).
In FIDIC books, there are 18 situations which the Contractor is entitled to an extension of time.
Refer to appendix for the relevant events cause by employer and neutral event.
According to the sub-clause 20.1, if the Contractor think he needs and has the right to
make a claim for an extension of time and the contract required a written notice submit to the

5. Engineer as a condition to an extension of time (FIDIC MDB Harmonised Contract, 2007).
Under Sub-Clause 8.4, the Contractor thinks he is entitled for EOT shall give notice to the
Engineer where the events are in accordance with Sub-Clause 20.1. The notice must be
supplied as soon as possible, and before the 28th day after the date on which the Contractor
have become aware of the event. If the Contractor doesn’t supply the notice before the time
limit, his claim to time can be lost. After receiving the claim, the Engineer must reply within
42 days (Glover. J, 2015; Claims under the new FIDIC conditions of contract, n.d). The case
Turner Corporation Ltd v. Austotal Pty Ltd, happened in 1998 is the proof. Indeed, this case
dealt with the situation of a delay caused by the employer. The contract specifies that a
contractor’s written notice was a condition to a right to an extension of time. The contractor
didn’t supply a notice, and he lost his right to an extension of time.
The notice must contain all events or issues which could have caused the delay. It also
must contain all these following elements (How to prepare a claim for an extension of time,
2018): “
- When the event happened.
- Why it happened.
- Which task is affected and why.
- The resources that it required.
- Any other events that were carried out, as a result.
- List of the activities which are affected from the agenda.
- Sketches, plans and photos
- Detail of actions taken by the contractor to reduce delays.
- Alternative solutions and/or proposed recovery plan.
- Communications between the construction team relating to possible delays.”
If the notice of the Contractor does not contain these elements, or if there is no notice,
the Engineer/Employer can refuse his demand of extension of time. In that case, the Contractor
might be chargeable for Liquidated damages for delay (Claims under the new FIDIC conditions
of contract, n.d). So, it is preferable for contractor to supply the notice before the deadline to
optimize his chances to have a positive response to his demand of extension of time.
The following table shows the summary and comparison between PAM, JKR and
FIDIC in granting EOT before and after completion date.

7. b) The Contractor is facing a challenging situation where the TNB does not provides a main
power supply for a TNB substation energisation to allow for the full testing and
commissioning of M&E works within the stipulated time in the contract. Can the
Contractor claim an extension of time for such situation?
In PAM Contract 2006, there are three categories of delays, which consist of: -
1. Delay caused by Contractor
2. Delay caused by Employer
3. Delay caused by Third Parties
Since the delay was not caused by either Contractor or Employer, which means the
third party cause the delay. Tenaga Nasional Berhad (TNB) is clearly a service provider,
which means this fulfils the requirement of Clause 23.8(q).
Clause 23.8(q) states that, “delayed cause by any Appropriate Authority and Service
Provider in carrying out, or failure to carry out their work which affects the Contractor
work progress, provided always such delay is not due to any negligence, omission, default
and/or breach of contract by the Contractor and/or Nominated Sub-Contractor”.
So the answer is yes. Contractor is able to claim for extension of time (EOT) due to
TNB delay. The supporting clause is PAM Contract 2006, Clause 23.8 (q).
But the contractor must fulfil PAM Contract 2006, Clause 23.1(a) and (b), which is
to give written notice and submit an official application. These two clauses emphasised that
contractor needs to give written notice of intention to claim within 28 days from
commencement of relevant event, as a precedent to any claiming of EOT. Following with
the need to submit subsequent official application and substantiation of claim within 28
days of end of cause of delay.
Written notice should include initial estimate of EOT required and all particulars of
the cause of delay. Official application need to state the relevant event causing the delay,
effect of delays on work programme and progress of work, number of days delayed, steps
taken to accelerate the works, reschedule of works programme, number of days of EOT
required, all supporting records, details, documents, and etc. (PAM, 2016).

8. In the JKR Form of Contract or P.W.D Form 203A, clause 50.2 stated that,
Contractor is entitled to claim Extension of Time (EOT) if he has suffered loss or delay
which those damages are not predictable or preventable by the Contractor. Features of EOT
in JKRForm of Contract explained in Clause 43 and it clearly stated in this form of contract
that the Superintending Officer (SO) is given the power to justify whether the EOT is
approved. Before that, he has to give written notice to the SO including the causes of delay
as well as any relevant information with certain supporting items for the SO to assess the
claim. If the SO receive such written notice, he has to assess those criteria by using the
Clause 43.1(a)-(k) to see whether the causes of delay are reliable and whether the EOT can
be claim by Contractor.
In this case where the Contractor is facing a challenging situation that the TNB does
not provides a main power supply for a TNB substation energisation to allow for the full
testing and commissioning of M&E works within the stipulated time in the contract. By
this, the Contractor can refer to the Clause 43.1(h) where Government sides of TNB didn’t
perform their work to construct a TNB substation for Contractor to carry out M&E works.
So, it is not Contractor’s fault or intention to cause this delay which entitled Contractor to
claim EOT in this event.
In Henry Boot Construction Ltd V Central Lancashire New Town Development
Corporation (1980) 15 BLR 1, the judge held that Contractor has entitled to claim EOT
because the delay of works caused by the services which needed to be installed by the
Government in the building before the respective work can carry out onwards such as
electricity, gas, water and etc. So, Contractor is entitled to claim EOT due to the delay
which is not caused by Contractor’s fault Besides, it should be cautious that this particular
result only applicable to circumstances in which the local authorities is independently
carrying out work according to its individual responsibilities.
Unluckily, most of the forms of contract only have contain of general processes and
entitlement for an EOT with some under-clarified zones that are open to different
interpretation that would sometimes lead to arguments and disagreement within the parties
involved. (Palaneswaran & Kumaraswamy, 2008) So, we always found that many disputes
or arguments while Extension of Time claim come into place and people are always argue
where Contractor says they are innocent and entitled to claim of EOT but Client’s side does
not agree by giving and approving EOT to their Contractor.

9. Under FIDIC Red Book MDB Harmonised Edition 2010, Sub-clause 8.4(b)
mentions the consequences of delay is entitled to an extension of time under Sub-clause 8.4
[Extension of Time for Completion] of the contract. Sub-clause 8.5 draws attention to the
delays caused by authorities. According to this sub-clause, the Contractor is given an
entitlement to an extension of time where delay is that, as a result of authority delaying or
disrupting its work, in the country in which the Site is located (Glover J., Thomas C., and
Hughes S., 2006). Since TNB is a public authorised service provider, the Contractor is able
to claim for extension of time for such situation according to Sub-clause 8.5 as mentioned.
However, the sub-clause only takes effect if the Contractor has “diligently followed
the procedures laid down by the relevant legally constituted public authorities, in the
Country”, the authority “delay or disrupt the Contractor’s work”, and such delay was
“unforeseeable” (FIDIC, 2010). Furthermore, if the problem is caused by a failure by the
Employer to reply to a request for assistance under Sub-Clause 2.2 [Permits, Licences or
Approvals], the Contractor does not know the procedures, it will be troublesome to hold
responsible TNB for the delay. Besides, the delay must be unforeseeable, which by Sub-
clause 1.1.6.8 [Unforeseeable Definition] means “not reasonably foreseeable by an
experienced contractor by the Base Date” (at the date from the tender submission) (Corbett
& Co International Construction Lawyers Ltd., 2016).
In short, the Contractor is able to claim for extension of time under Sub-clause 8.4
due to TNB delay. However, the Contractor should consider Sub-clause 8.5 (a)-(c)
thoughtfully. Unless all three terms apply, the Contractor will not be given the entitlement
to an extension of time for such situation.

10. The table below shows the comparison between PAM, JKR and FIDIC (Red Book)
on entitlement to extension of time regarding delays caused by third party.

11. Reference
CLAIMS UNDER THE NEW FIDIC CONDITIONS OF CONTRACT. Retrieved from
http://fidic.org/sites/default/files/papworth_claims.pdf
CONTRACTS: ADVANCED QUESTIONS GENERAL QUESTION/ANSWER. Retrieved
from http://fidic.org/node/915
Corbett & Co International Construction Lawyers Ltd. (2016). Clause 2 [PDF file]. Sub-Clause
2.2 – Permits, Licences or Approvals, 6. Retrieved from http://corbett.co.uk/wp-
content/uploads/Clause-2-.pdf
Danuri, M. M., M. O., Lim, C. C., & Rahman, H. A. (n.d.). Application and Assessment of
Extension of Time Claim. Retrieved from
https://www.bing.com/cr?IG=414C3C8CB0BB4DD6BFCD78EFD11DE7D4&CID=
2910C12F660868871151CD2067F5699E&rd=1&h=qFlosogJ5QPFuvUYI4JH9Mwg
UnixQfN9nJzPkf8NfNI&v=1&r=https://adminconference.um.edu.my/index.php/jdbe/
article/download/4942/2789/&p=DevEx.LB.1,5427
Entitlement to Extension of Time and Additional Payment under FIDIC Conditions of Contract.
(2014, October 21-25). Retrieved from
https://www.researchgate.net/publication/290086365_Entitlement_to_Extension_of_T
ime_and_Additional_Payment_under_FIDIC_Conditions_of_Contract
Entrusty Group (n.d.) Must The Contractor Notify The Employer/ SO of Its Loss And/Or
Expense Claim? Retrieved from http://entrusty.com/site/wp-
content/uploads/2012/08/Is-the-contractor-still-entitled-to-extension-of-time-when-
there-is-concurrent-delay.pdf
FIDIC MDB Harmonised Contract. (2007, April). Retrieved from
http://fidic.org/sites/default/files/cons_mbd_gc_v1_french.pdf
Glover, J. (2015, February). Sub-Clause 20.1 – the FIDIC Time Bar under Common and Civil
Law. Retrieved from https://www.fenwickelliott.com/research-insight/articles-
papers/contract-issues/sub-clause-fidic-time-bar
How to prepare a claim for an extension of time. (2018, January 11). Retrieved from
https://www.designingbuildings.co.uk/wiki/How_to_prepare_a_claim_for_an_extensi
on_of_time

12. International Federation of Consulting Engineers (FIDIC). (2005). Conditions of contract for
construction. Switzerland: FIDIC Publication.
Knutson, R., & Abraham, W. (2005). FIDIC : an analysis of international construction
contracts (1st ed.). The Hague [etc.]: Kluwer Law International [etc.]
Lee, Y. L. & Tan, M. L. (2012), the Assesment Of Applications For Extension Of Time Claims
in Malaysia Construction Industry. LACSIT International Journal of Engineering and
Technology, Vol.4, No.4, August 2012, pp. 446-450
Lian, L. Y., S. H., R. M., & Ling, T. M. (2012). The Assessment of Applications for Extension
of Time Claims in Malaysian Construction Industry. The Assessment of Applications
for Extension of Time Claims in Malaysian Construction Industry, 4. doi:10.18411/d-
2016-154
Lim, S.C (2015). Lecture P2 – DELAYS AND DISPUTES [Lecture notes]. Subang Jaya,
Malaysia: Taylor’s University.
MALCONLAW. (n.d.). Procurement through Design and Build. Retrieved from
https://simplymalaysia.wordpress.com/articles/choice-of-contract/procurement-
through-design-and-build/
Norngainy, M. T. (2014). A Pilot Survey OnCauses Of Delay in Malaysia Construction Project.
MATEC Web of Conference 15
Pertubuhan Akitek Malaysia (PAM), (2006). Agreement and Conditions of PAM Contract
2006 (with quantities). Kuala Lumpur. PWD Publication.
Public Work Department Malaysia (2007). Standard Form of Contract to Be Used where Bills
of Quantities Form Part of the Contract P. W. D. Form 203A (Rev. 10/83). Kuala
Lumpur, PWD Publication

13. Appendix
PAM 2006
15 relevant events that are caused by employer under Clause 23.8:
- Clause 23.8 (e): late issuance of AI for which Contractor applied in writing within
sufficient time before the commencement of the affected works provided that the AI
issued was not due to the negligence by Contractor.
- Clause 23.8 (f): delayed by employer in giving site possession.
- Clause 23.8 (g): AI for discrepancy, variation and suspension of works.
- Clause 23.8 (i): re-nomination of nominated sub-contractor.
- Clause 23.8 (j) delayed by employer’s direct engage craftsmen, tradesmen or other
contractors.
- Clause 23.8 (k): delayed or failure to supply materials and goods by employer.
- Clause 23.8 (l): opening up for inspection and testing which are found to be in
accordance with drawings and specifications.
- Clause 23.8 (m): act of prevention or breach by employer.
- Clause 23.8 (o): AI in connection with discovery of antiquities.
- Clause 23.8 (r): appointment of a replacement consultant.
- Clause 23.8 (s): AI issued in connecting with neighbouring property owner causes
disputes provided that it is not due to the default or negligence of Contractor.
- Clause 23.8 (t): execution of works under insufficient provisional quantity.
- Clause 23.8 (u): delay in giving site entry to and exit from site.
- Clause 23.8 (v): suspension of works caused by non-payment and withdrawal of
supervision.
- Clause 23.8 (x): any other ground for EOT expressly stated in contract
9 relevant events that caused by neutral event under Clause 23.8:
- Clause 23.8 (a): force majeure.
- Clause 23.8 (b): exceptionally inclement weather.
- Clause 23.8 (c): loss and damage caused by fire and other peril.
- Clause 23.8 (d): civil commotion, strike or lockout affecting relevant trades
- Clause 23.8 (h): delay caused by nominated sub-contractors or nominated suppliers
which the Contractor has taken all possible steps to avoid
- Clause 23.8 (n): war damage

14. - Clause 23.8 (p): any changes to statutory laws.
- Clause 23.8 (q): delay or failure to carry out by statutory bodies provided that it is not
due to any default of negligence of Contractor or nominated sub-contractor.
- Clause 23.8 (w): suspension of work by statutory body provided is not due to the default
or negligence of Contractor or nominated sub-contractor
FIDIC RED BOOK 1999
18 situations which the Contractor is entitled to an extension of time (Entitlement to Extension
of Time and Additional Payment under FIDIC Conditions of Contract, 2014):
- Clause 1.9: “Engineer's delay of Drawings or Instructions”
- “Errors in the Employer’s Requirements”
- Clause 2.1: “Employer's delay in handing over the Site to the Contractor”
- Clause 4.7: “Delays as a result of any errors in items of reference for the correct
positioning of all parts of the Works, which are provided by the Employer”
- Clause 4.12: “Appearance of Unforeseeable Physical Conditions”
- Clause 4.24: “Finding fossil in the site”
- Clause 7.4: “Employer’s claim for additional tests and test results being in accordance
of with the specifications”
- Clause 8.4: “Employer’s giving variation order”
- Clause 8.4: “Exceptionally adverse climatic conditions”
- Clause 8.4: “Unforeseeable shortages in the availability of personnel or goods caused
by epidemic, changes in legislation or governmental actions”
- Clause 8.4: “Any delay, impediment or prevention caused by or attributable to the
Employer, the Employer’s personnel, or the Employer’s other contractors on the site”
- Clause 8.5: “Delays caused by authorities”
- Clause 8.9: “Employer’s suspending or holding the works”
- Clause 10.3: “Delay from carrying out the tests on completion by a cause for which the
Employer is responsible”

15. - Clause 13.7: “Delays caused by changes in legislation or in current laws of the country”
- Clause 16.1: “Delays resulted by Contractor's suspending work (or reducing the rate of
the work) which is caused by the delayed payments of the Employer”
- Clause 17.4: “Delays which take place during Contractor’s rectifying the damage
existing as a result of situations listed in sub clause 17.3”
- Clause 19.4: “Delays which take place as a result of force majeure defined in sub clause
19.1 and notified by the Contractor”
JKR Form 203A (2007)
- Clause 43.1 (a): Force majeure under clause 57
- Clause 43.1 (b): Exceptionally inclement weather
- Clause 43.1 (c): Suspension of works by S.O under clause 50
- Clause 43.1 (d): Disputes with neighboring owners
- Clause 43.1 (e): S.O’s instruction issued under clause 5
- Clause 43.1 (f): Delay or failure to issue instructions or nomination of sub-contractors
for which the Contractor has specifically applied for in writing
- Clause 43.1 (g): Delay in giving site possession under clause 38.4
- Clause 43.1 (h): Delay on the part of artists, tradesmen or others engaged by the
Government not forming part of this contract
- Clause 43.1 (i): Inability to secure such goods, materials and/or services that are
essential
- Clause 43.1 (j): Delay by the part of Nominated Sub-contractors due to reasons stated
in above sub-clause (a) to (i)