Our example contracts will be the SBCC Design & Build Contract 2016 ("SBCC Contract") and the NEC4 Engineering and Construction Contract, ("NEC Contract") with amendments as at October 2020.
The SBCC Contract requires the contractor to notify the employer at once "if and whenever it becomes reasonably apparent" that there will be delay to the progress of the works. Notice must be given even if the contractor does not seek any extension of time/additional money. The giving of this notice is the trigger for the contractor to claim an extension of time, so failure to do so may prevent them from obtaining an extension of time to which they may otherwise be entitled.
When a delay becomes 'reasonably apparent' will depend on the facts and circumstances of the project as well as what is going on in the wider world. For example, the blockage of the Suez Canal may not have immediately been apparent as something which would cause delays. However, as it continued it then caused delays worldwide. On the other hand, the issue of a substantial variation of the works may be apparent very quickly.
The NEC Contract requires the contractor to provide programmes showing the start date, key dates for meeting certain conditions and the planned and contractual completion dates. The key dates relate to conditions such as specific levels of design, testing or commissioning rather than the physical state of the works. The contractor is required to revise these programmes regularly to show the rate of progress and how it proposes to deal with any delays.
As discussed in our week 8 blog the NEC Contract makes provision for early warning of potential delay events, which are to be given for anticipated delays. Actual delays which are Compensation Events (as discussed in last week's blog) must be notified as soon as possible and in any event within eight weeks of the contractor becoming aware of the event.
If the contract requires notification of a delay to be given by a certain time, the claim could be lost in its entirety if not given by the time required.
Next week we will consider entitlement to additional payment following delay. If you haven’t read our previous delay blogs, they can be found here.
Should you require assistance with any aspect of a construction contract, we have a large and experienced construction team who would be happy to discuss this with you.
