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EFFECT OF WORK PROGRAMME IN EXTENSION OF TIME
ENTITLEMENT
APRIL 2006
ii
I declare that this thesis entitle “Effect of work programme in extension of time
entitlement” is the result of my own research except as cited in the references. The
thesis has not been accepted for any degree and is not concurrently submitted in
candidature of any other degree.
Signature :
ACKNOWLEDGEMENT
My fellow postgraduate students, Yong Mei Lee, Ling Teck Lee and Dennis
Oon should also be recognized for their support, guidance and care. My sincere
appreciations also extend to all my colleagues and others who have provided
assistance at various occasions. Their views and tips are useful indeed.
v
ABSTRACT
The aim of this research is to know how a construction work programme can
be a tool in reducing disputes which relate to extension of time (eot). Extension of
time entitlement is only granted to the successful claimant (contractor) who had
fulfill certain conditions in the application and one of the condition is the claimant
had successfully proved that the delay happened was not by his fault, it is either
caused by employer or was one of the neutral events.
This research are based on literature information about work programme and
it will supported by referring to court case where had considered work programme as
an important document in judgment. Even there are no specifications of method in
preparing a work programme but there are some important elements in the work
programme which may contribute to its purpose.
Besides having credits in resolving disputes, there are still weak points in the
work programme application which have to be studied and improved. It is found that
it is good to have work programme requirement in document contract for the better
future and quality of the industry.
vi
ABSTRAK
Oleh yang demikian, kontraktor yang memohon lanjutan masa ini akan
berusaha membuktikan bahawa punca kelewatan adalah bukan dari kesalahannya dan
dengan ini masalah sering timbul dimana tiada dokumen, rekod atau bukti yang
kukuh mengenai pihak yang sepatutnya bertanggungjawab ke atas sesuatu kelewatan
aktiviti yang memberi kesan kepada tempoh penyiapan sesuatu projek.
Walaubagaimanapun dipercayai bahawa perkara ini dapat diselesaikan dengan
mengaplikasikan penggunaan perancangan kerja, meskipun perlaksanaan
penggunaannya tidak terkandung di dalam kontrak.
TABLE OF CONTENTS
1 INTRODUCTION 1
1.0 Introduction 1
1.1 Problem Statement 3
1.2 Objectives 4
1.3 Importance of the research 5
1.4 Scope 5
1.5 Methodology 6
2 EXTENSION OF TIME 7
2.0 Introduction 7
2.1 Extension of time provision 8
2.2 Delay 11
2.2.1 Delay caused by employer 14
2.2.2 Delay caused by neutral event 15
2.2.3 Delay caused by contractor 15
2.3 Basis events to establish eot entitlement 19
2.3.1 Time provision in contract 20
2.3.2 Due Diligence 28
2.3.3 Notice of delay 34
2.3.4 Construction Work Programme 37
viii
4.0 Introduction 67
4.1 Work Programme in Standard form of Contract 68
4.1.1 PAM 1998 68
4.1.2 CIDB 2000 69
4.2 How work programme can contribute in eot entitlement 69
4.2.1 Logical Analysis 70
4.2.2 Critical Path Analysis 74
4.2.3 Causal Link 77
4.2.4 Regularly and Diligently 78
4.3 Weakness of Work Programme 79
4.3.1 Variety of methods 80
4.3.2 Contents of work programme 80
4.3.3 Presentation of work programme 81
5.1 Introduction 83
5.4 Recommendation 86
5.5 Limitation 87
REFERENCES
x
LIST OF TABLE
LIST OF FIGURE
LIST OF CASES
PAGE
PAGE
Hiap Tian Soon Construction Pte Ltd and Another v Hola Development
Pte Ltd and Another [2003] 1 SLR 667 32
PAGE
Thamesa Designs Sdn Bhd v Kuching Hotels Sdn Bhd [1993] 3 MLJ 25 27
Wells v Army & Navy Co-operative Society Ltd (1902) 86 L.T. 764 28
CHAPTER 1
INTRODUCTION
events has caused delay and or is likely to affect the date for completion of the
work.
Contract period is a period within which the contractor not only must do the
work but it is also a license for the contractor to spend that time carrying out the
works. In addition, he may plan and do the work in whatever order he pleases.
Although he must make sufficient progress to achieve the completion date, there is
nevertheless usually an express obligation for the contractor to proceed regularly and
diligently with the work. In order to provide further comfort, the employer usually
requires the contractor to provide a programme (construction work programme) at
the commencement of the work to show the sequences and timing of the activities
involved in the construction of the project in sufficient detail for the S.O or C.A to
monitor the progress of the work. It is common to use this construction work
programme as a basic model against which to consider the effect of delays.
Rajoo (1999) stated that the effect of making the programme an express
requirement without it being a contract document is that while the contractor may in
breach for failure to submit a master programme, he may not be in breach if the
series of events are not followed as scheduled.
3
works. It will also be a strong evidence in any dispute which may arise on issues of
responsibilities arising from delay to completion from changes of programme
sequences and duration of activities. The words quality work programme is a
subjective term which there is no specific method or requirement how a work
programme suppose to look like. In Malaysian standard form of contract there are no
guideline of how to prepare a work programme. Although Rajoo (1999) in The
Malaysian Standard Form of Building Contract (The PAM 1998 Form) had stated
the elements of work programme, it is not defined in any clause in any standard form
of contract. He stated that,
..the elements of Work programme is not defined in clause 3.4. As such, it
may take the form of a bar chart, critical path, precedence diagram, schedule,
network analysis or otherwise. A good work programme should show interfaces with
sub-contractors, dated, time frames, activities, stages and more..
Therefore, it is still an issue in this industry the right definition of a good work
programme and it had became one of the disadvantages in work programme usage
where a good work programme can’t be defined precisely.
1.2 Objectives
There are two objectives of this research which writer wish to achieve.
i. To identify how a construction work programme can contribute in reducing
disputes in extension of time.
ii. To determine the advantages and disadvantages of construction work
program usage in construction contract.
5
The data and analysis in work programme promised valuable information for
identifying and modeling delays and their effect on progress and the use of
computerized work programme techniques for proving delay is become a practical
requirement nowadays. Nevertheless techniques are being considered by the courts
and it is now almost inevitable in litigation involving disputes over the extent of
project delays that a programming expert will be appointed. Therefore, it is good for
the parties involved in a construction project, especially contractor to have a proper
documented record such as work programme as a step to help in reducing disputes in
the future, although it is still not a legal requirement in standard form of contract in
Malaysia.
1.4 Scope
This research will mainly discuss on the work programme terms and
provision in Malaysian standard form of contract. There are Public Work Department
(PWD) 203A, Persatuan Arkitek Malaysia (PAM) 98 and Construction Industry
Development Board (CIDB) 2000. The discussion also will be supported with
international court cases, not only focusing on Malaysian court cases.
6
1.5 Methodology
• Reference books
Chapter 2
• Seminar papers
Literature Review • Standard for of contract
• Article papers
Chapter 3
• Internet sources
Chapter 4
• Seminar papers
Analysis Study • Standard form of contract
Chapter 5 • Court cases
CHAPTER 2
2.0 Introdution
monetary compensation which the contractor have to pay to the employer due to
delay caused by himself and normally the amount is per day which obviously stated
in earlier phase. This simplistic theoretical scenario is based on the premise that the
contractor is allowed to complete the agreed scope of work within the agreed time
frame without any interruption or hindrance (Hutching, 1998).
In construction project, the cost may be the primary concerns of the parties
involved. However, time requirement also plays a key factor to both employer and
contractor. Since time is said to be as important as cost, a provision on extension of
the time of completion is very welcomed by all parties due to avoid any further
problems or disputes. It is where an Extension of Time provision had been
introduced.
The provision of Extension of Time will obviously benefit the contractor who
will not be liable to pay any monetary compensation or LAD for any delay during the
period which time is validly extended. Although it is to be said that the contractor
will benefit most, there are some opinions agreed that the actual benefit is actually
meant for the employer.
9
From all the description above about extension of time, it is hope that it can
be easily understood by referring to the table 1 :
10
Questions Descriptions
2.2 Delay
It was stated earlier that almost all construction contract in Malaysia has an
express provision about extension of time. It is believed to be happened because its
kind of abnormal to have a project complete on time without any application of
extension of time even for a day.
A fundamental point is that the time for completion can only be extended where the
contract permits and strictly in accordance with the contract provision. If delay is
caused by some event which the contract does not cover, then the contractor cannot
claim an extension.
The concept of delay arises out of the time limitations stated in the contract.
Extension of time only can be granted if the delay is critical, affects the date for
project completion and it falls within the language of the extension of time clause in
a particular contract. Some contract may contain clause where it allow a general
ground for extension of time, such as “..any other ground for extension of time
expressly mentioned in the Contract” under PAM 1998, Clause 23.7(xii).
It is thus important that the likely causes of delay are covered by an extension
of time clause, but the courts have made things more difficult by ruling that a general
words such as ‘other unavoidable circumstances’ do not cover delay which is due to
the fault of the employer. Oddly, although the ruling is well known, many contracts
continue to use general phrases of this kind.
It is a norm having a delay in any project, it can easily happened and can
caused by any parties, either it solely from contractor’s fault or from other parties
such as employer’s fault or other events.
12
Traditional extension of time clauses contain a list of delaying events for which the
contract administrator is empowered to grant extensions of time, and the forms
currently used in Malaysia are no exception to this.
site, than the contractor should be excused from such delay affect the project
completion date. In such instances, the contractor should be entitled to be given more
time to complete the project and may also be entitled to claim for any loss and
expenses incurred.
Delay caused by employer can be divided into several categories (Rubin et,
al.,1999) :
a) Employer’s failure to meet his contractual obligations
I. Delay in Awarding the Contract
II. Delay in Providing Project Site
III. Dissimilar Site Conditon
IV. Delay in Payment
V. Delay in Obtaining Necessary Approval from Local Authorities
VI. Delay in Furnishing Special Materials
VII. Delay by Nominated Sub-contractors/Suppliers caused by Employer
b) Act of prevention or interference by the employer to the works
c) Variation to the work required by the employer
d) Failure by employer’s agents to perform their contractual duties on behalf
of the employer
e) Employer’s Licensees
15
Delays that are not caused by the parties to the contract and beyond the
control or power of any parties involved are considered as neutral events (Hackett &
Robinson, 2003). The generally accepted principle in construction contract is that
delays caused by neutral events are classified as excusable and non-compensable
delay (Rubin, 1999). The contractor is excused from late performance but he will not
be entitled to extra compensation for delays caused by neutral events.
Most of the construction contract dealt with delays caused by neutral events,
such as force majuere, exceptional inclement weather, civil commotion, strike or
lockout, fire, flood, etc. By introducing such provision in a contract, all parties’ risks
will be minimized.
The exception is that the contractor will not be entitled to extension of time if
the neutral events that cause the delay to the project are foreseeable and avoidable.
As in the Australian case of Codelfa Construction Party Ltd v. State Rail Authority of
New South Wales (1982), it was held that the contractor was not entitled to a time
extension for delays due to an injunction that prevented working three shifts as the
contractor had intended, as shown in approved work program. The court determined
that the contractor should have foreseen that three shifts would not have been
allowed in the project area.
As a general rule, contractor will not be entitled to claim extra money or time
if the delay is due to his own default. Contractor will be required to pay liquidated
damages or any monetary compensation to the employer if he delays the project
16
Most construction contract requires the contactor to carry our pre-tender site
inspection to enable the contractor to appraisal the site, and to ascertain the actual
site condition. By carrying out a reasonable and proper inspection of the site, the
contractor will be able to submit a more accurate and competitive tender excluding
high contingency factors (Bramble & Callahan,1992). Failure by contractor to
appraise the actual site condition or lack of proper site inspection puts the contractor
in a risky situation where he may under price his tender submission.
It is important that the contractor allow for sufficient work force to carry out
the work. Shortage of labour will not be an excusable delay unless it is caused by
unforeseeable event and the contractor has diligently and used his best endeavours to
looks for alternative labour sources to resolve the issue
The contractor will not escape from responsibility for delaying project
completion if there is delay in procuring construction materials unless the shortage
of material is unforeseeable and beyond the control of the contractor. Nevertheless,
the contractor owes a duty to the employer under the contract for supplier’s failure to
supply material or equipment that in turn delays project completion
18
The contractor needs to manage his resources in order to achieve that best
price, time and quality for the work. The contractor is required to coordinate the
works, select the best construction methods and techniques, and sequences of the
work based on the work programme prepared. Most often, delay in construction
project is caused by main contractor’s poor coordination or failure to interface the
work properly amongst the various trade sub-contractors (F.Turner & Turner,1999)
Poor management may also be caused by the lack of experienced site supervisor to
manage the site workers whereby activities are not well co-ordinate.
In the American case of Mobil Chemical Co. v Blount Brothers Corp.
(1987), the construction manager was held responsible for delayed completion
caused by poor management in early stages of the project. The contractor was
responsible for delays in mobilizing the project.
The main contractor is responsible to the employer for delays caused by his
sub-contractors and suppliers. This is because the contractual relationship is between
the employer and main contractor only. If the sub-contractors or suppliers’ delays
actually affect the overall project completion and the main contractor does not
contribute to the delay, then the sub-contractors and suppliers are liable to main
contractor. It is therefore important that the main contractor monitor the performance
of each of his own sub-contractor and supplier to ensure the works are properly
coordinated as delays by one may affect the work by others. At the end of the day,
the main contractor is liable to the employer irrespective of any one or a few sub-
contractors who cause delays although he can still bring an action against the
defaulting sub-contractors.
This section will further discuss on the basic events and principles where the
contractor entitled to extension of time if he fully applied it. The most common
reason for contractor to get the time extended is if can proved that the delay wasn’t
caused by him. It is rather caused by the employer or from the affect of neutral
events.
20
Besides that, contractor also has right to granted extension of time if he has
much knowledge on contract and always keeps his move on the right track.
Contractor shall know what other things that entitled him to get fully extension of
time, which such as below :
In the next discussion writer would like to discuss more detail on time provision and
terms. The next discussion will touch on contract with and without time specified,
what the definition of time at large is and how it relates to the term of reasonable
time.
21
In the normal situation, where a time for completion is expressly stated in the
contract, the employer is entitled to damages if the contractor does not complete on
time. It is important for contractor to make sure enter a contract with provision of the
date of completion.
There are two different types of contract where time for completion is expressly
stated as a term of the contract. Firstly time may be of the essence or secondly time
may be extendable.
Time of the essence is one of the most misused contractual terms, particularly
in construction contract. Time is of the essence where failure to meet the particular
date is a fundamental breach of contract entitling the other party to treat the contract
as repudiated and claim damages.
and in constructing the works the employer will have become owner of the property
and thus have received a major and irretrievable benefit. Further it is clearly arguable
that liquidated damages clauses and extension of time provisions are inconsistent
with an interpretation that time is of the essence, both clauses indicating a preference
on the owner’s part to allow the contractor to complete and accept liquidated
damages as compensation.
established that one party cannot impose a contractual obligation on the other where
he has impeded the other in the performance of that obligation. In Amalgamated
Building Contractors Ltd v Waltham Holy Cross UDC [1952] 2 All ER 452 Lord
Denning said:
“..the building owner cannot insist on a condition if it is his own fault that the
condition has not been fulfilled."
“The phrase 'time at large” is much loved by contractors.It has about it ring
of plenty; the suggestion that the Contractor has as much time as he wants to
complete the works"
(a) Where an act of prevention by the employer creates delay and that delay
is not covered by an extension of time provision; and, to a lesser extent:
(b) Where the provisions for extension of time have not been properly
administered or have been misapplied;
(c) Where there has been waiver of the original time requirements;
(d) Where there has been interference by the employer in the certifying
process.
In its simplest form time is said to be at large where there is no specific time
for completion or where a previously fixed time for completion no longer applies.
24
This can occur in two main ways. Firstly, where agreements for work to be, carried
out are entered into without a completion date, or period, being stated. Common
examples of this type of situation are found in letters of intent, which often contain
instructions to commence work without a completion time being agreed. Where
there is no subsequent agreement as to the time for completion then time will be said
to be at large.
The second situation occurs where a previously agreed time for completion
has been rendered inoperable. This can occur in a number of ways the most common
of which is where there is an act of prevention by the employer, which there is no
express provision within the contract for extending the completion date.
This derives from a fundamental principle of commercial law which has been
established for centuries but which was best articulated in Barque Quilpue v Brown
[1904] 2 QB 264.
“There is a term implied into every contract by each party that he will not do
anything to prevent the other party from performing a contract or to delay
him in performing it. I agree that generally such a term is by law
imported into every contract"
Where the employer or his agents does undertake some act or omission
which prevents the contractor completing the works by the date for completion, for
example, by failing to provide necessary drawings at the appropriate time, then he
can no longer maintain that the contractor finishes his works by the stipulated date
for completion. Time is set at large unless the contract provides for extending the
date in such circumstances.
the completion obligations when delays by the employer occur. These mechanisms,
referred to as extension of time clauses, give the engineer or architect the power to
grant extensions of time for delays caused by the employer or his agents. This
allows a definite time for completion to be maintained and preserves the employer's
rights to deduct liquidated damages if completion occurs after the extended date.
It is also clear from the case of Peak Construction that the extent of the delay
caused is not a relevant factor to be considered in assessing whether time has been
set at large.
26
Lord Justice Phillimore in this case summarized the law and the rationale
behind it as follows:
"I would re-state the position because I think it needs to be stated quite
simply. As I understand it, a clause providing for liquidated damages (clause
22) is closely linked with a clause, which provides for an extension of time
(clause 23). The reason for that is that when the parties agree that if there is
delay the contractor is to be liable, they envisage that the delay shall be the
fault of the contractor and, of course, the agreement is designed to save the
employer from having to prove the actual damage which he has suffered. It
follows, once the clause is understood in that way, that if part of the delay is
due to the fault of the employer, then the clause becomes unworkable if only
because there is no fixed date from which to calculate that for which the
contractor is responsible and for which he must pay liquidated damages.
However, the problem can be cured if allowance can be made for that part of
the delay caused by the actions of the employer, and it is for this purpose that
recourse is had to the clause dealing with extension of time. If there is a
clause which provides for extension of the contractor's time in the
circumstances which happen, and if the appropriate extension is certified by
the architect, then the delay due to the fault of the contractor is disentangled
from that due to the fault of the employer and a date is fixed from which the
liquidated damages can be calculated."
In this case it was also held that if the Employer caused any delay, no matter
how slight, and there was no appropriate provision to extend the time for completion
then time would be at large. The extent of the delay was not a factor in whether time
was rendered at large.
The Federal Court in Malaysia held in Sim Chio Huat v Wong Ted Fui [1983]
MLJ 151 that a housing developer who undertook to deliver houses erected by him to
a landowner, was not liable for liquidated damages because the landowner had
instructed for additional work to be done when their agreement contained no clause
for extension of time for completion. Time became at large and consequently there
was no date from which damages could run and therefore no liquidated damages
could be claimed.
The Supreme Court of Malaysia held in Thamesa Designs Sdn Bhd v Kuching
Hotels Sdn Bhd [1993] 3 MLJ 25 that the Employer was not entitled to deduct
liquidated damages because site possession was handed over late to the Contractor
and there was no extension of time provision for late possession.
Whilst the omission from the standard form is generally corrected by way of
special conditions of contract, in some instances it is not and on these occasions the
contractor will have grounds to argue that time has become at large due to the failure
of the employer to afford possession or other acts of prevention not expressly
provided for within the extension of time provisions.
ensure that delay caused by the employer are clearly covered and further drafted to
incorporate some risk sharing between the employer and the contractor and often
entitle the contractor to extensions of time due to neutral events such as inclement
weather or other matters outside his, or the employer's control.
However, delays may occur during the progress of the works that may cause
the employer damage but which do not delay the overall completion Such delays will
generally not entitle the employer to claim damages and so in an attempt to prevent
such delays occurring it is common for construction contracts to include terms that
define the manner in which the works are to be progressed.
". ..shall proceed with due diligence and expedition... "(CIDB, clause 17.1)
Diligence - "the attention and care due from a person in a given ituation",
Expedition - "the act of expediting, to perform quickly, dispatch" .
The expression "due diligence and expedition~ was dealt with in GLC v
Cleveland Bridge (1984) 34 BlR 50. Here the Arbitrator's view (which was upheld
by the court) was:
“if the access date, key dates and completion date are varied or extended the
respondent could not in my view be said to be lacking in diligence if it paced
its work so as to ensure delivery consistent with the appropriate access and
key dates even though this might have the effect of increasing the sums
,eventually recoverable under the VIC provision” (Adjustment of Price
clause}".
The judge further stated that the expression 'due diligence' imposed
"an obligation on the contractor to execute the works with such diligence and
expedition as were reasonably required in order to meet the key dates and
completion date in the contract".
What in particular the word diligently contributes to the concept is the need to
apply that physical capacity industriously and efficiently toward that same
end. "
30
This approach was adopted in the recent Hong Kong High Court case of
Trident Engineering Company Limited v Mansion Holdings Limited wherein Deputy
"So far as supply of materials is concerned, the contractor has to plan his
requirements ahead and ensure that the materials of the right quality and in
the right quantity are available at the right time. This is to enable the works to
progress continuously, industriously and efficiently. The most ideal situation
would be to arrange delivery to coincide with work progress so that the
materials will arrive at the site precisely when they are wanted and be lifted to
where they are required . If such precise delivery is not possible, at least the
contractor should ensure that a minimum stock is kept on site, which is
sufficient to provide for the time required for placing orders and delivery, plus
a reasonable provision for contingency. Otherwise, labor will be wasted while
waiting for materials and delay will result.
Whilst this is the general rule the situation under the CI DB conditions of
contract is different. CI DB conditions clause 17.1 (a) requires that "the Contractor
shall proceed with the works with due diligence and expedition..." which is prime
facie a standard clause importing the obligations discussed above however the
clause goes on to state:
In the Singaporean case of Hiap Tian Soon Construction Pte Ltd and
Another v Hola Development Pte Ltd and Another [2003] 1 SLR 667, the High
Court followed the Court of Appeal's decision in Jurong Engineering Ltd v Paccan
Building Technology Pte Ltd [1999] 3 SLR 667 where 'reasonable diligence' could
only be determined by pacing the progress of the subcontractors work against the
sub-contract programme. The High Court treated the term 'reasonable diligence' as
the same as 'regularly and diligently' and therefore found that the contractor's
progress of work had consistently lagged behind the construction programme thus
falling below what was regularly and diligently. Moreover, the contractor persisted
in its delay despite reminders from the employer to expedite the work.
Although the contract only gave the employer a right to terminate the
contractor's employment for the failure to proceed regularly and diligently, the High
Court in following the Court of Appeal's decision in Jurong Engineering's case, held
that the contractor's breach of the obligation to proceed regularly and diligently
would give rise to damages as well as to a right to terminate the contractor's
32
employment.
The court cited the reason enunciated in Hudson's Building and Engineering
Contracts, Vol 2 (11th Ed, 1995) as where the nature of the work undertaken
indicated that work by other contractors of the employer were within the
contemplation of the contract as being dependent on the maintenance of a reasonable
rate of progress.
However, as the events in the works unfold, the works programme must be
revised to reflect and consider actual progress which have taken place including
external delaying events. The onus may lie on the S.O. to insist and instruct the
Contractor to revise the works programme from time to time. In the absence of such
updated programme, it may be near impossible for the S.O. to measure the
Contractor's due diligence and expedition.
Another factor which a C.A needs to take into account when measuring the
contractor's due diligence would be whether the contractor is entitled to any further
extension of time based despite the contractor having failed to notify the C.A of any
causes of delay. If the C.A fails to consider the contractor's further entitlement to
extension of time yet at the same time arrives at an opinion that the contractor fails to
proceed regularly and diligently, the C.A may put the interest of the employer at risk.
33
Such are the circumstances seen in the case of Sindall LId v Solland and
others [2003] All ER (D) 95 where the contractor entered into a contract with the
employer for renovation work. The date for completion had lapsed and was later
extended. Subsequently the extended date for completion lapsed and there were still
delays being caused by the employer including the employer's artist and tradesmen.
The C.A issued a notice of default to the contractor forming his view that the
contractor had failed to proceed regularly and diligently on the grounds that, inter
alia, the contractor had a low number of operatives on the site. The employer acted
on the C.A’s view and subsequently terminated the contractor's employment.
Humphrey Llyod J's in his obiter statement said:
“Were there not events which entitled Sindall (the contractor) to a further
extension of time? If there were such events then the Contract Administrator
may not have been right to have formed the view that the contractor was then
failing to proceed regularly and diligently"
The judge in the Sindall's case referred to Vinelott J's judgment1 in London
Borough of Merton v Leach (1985) 32 BLR 51 at pages 89-90 and stated that a
contract administrator had always to consider whether there were any factors known
to him which might justify an extension of time, even though the contractor failed to
give a notice of delay. This was particularly important if the C.A needed to determine
whether the contractor was proceeding regularly and diligently. It should be noted
that the contract in this case did not stipulate such notice as a condition precedent to
any entitlement to an extension of time. Hence, the application of Sindall's case may
be confined to such contracts.
34
The starting point for the submission period is generally either the start of the
event giving rise to the delay, an objective test, or when it becomes reasonably
apparent that an event is likely to cause delay, a subjective test.
Most forms, internationally, do not expressly state that giving of such notice
is a condition precedent to the right to an extension of time, and the case of Bremer
Handelsgesellschaft mbh v Vanden Avenne-Izegem (1978) 2 LLR 109, confirmed
that unless it was expressly so stated the clause would not be a condition precedent.
The reason for this arose from a fear that in the event of an employer's delay,
if the contractor failed to serve a notice and was thus prevented from claiming an
extension of time, it may be open to argument that time was at large because the
employer had prevented completion and no extension of time was possible. This
stemmed from the decision in Peak Construction (Liverpool) Ltd v McKinney
Foundations Ltd (1970) 69 LGR 1.
However, the contract did not provide for any discretionary power to the
owner's architect to grant extension of time notwithstanding the contractor's failure
to comply with the notice provisions. The arbitrator found that the employer had
caused delays to the works but, by virtue of the stringent notice provisions coupled
with the absence of any discretionary power to award extension of time, the
employer must be regarded as having elected to take the risk that if the employer
himself had caused delays and the contractor had not given the required notice, time
would have been set at large and liquidated damages could not have been recovered
by the employer under the prevention theory. The court agreed with the arbitrator.
36
(a) None of the Malaysian Standard Forms require the giving of notice as
a condition precedent to the right to an extension of time.
(b) PWO Form OBIT (clause 45.1), PWD Form 203A (clause 43),
PAM69 (clause 23), PAM98 (clause 23), and IEM (clause 43), state that:
(c) CIDB conditions impose a time frame upon the Contractor for
issuance of a notice and reaction to that notice by the Superintending Officer
however compliance with this requirement is not a condition precedent to the
granting of an extension to the Time for Completion of the Works.
The burden of proof of delay rests on the contractor whether the application
be made before or after completion and whether the delaying events is the
employer’s fault or neutral. If the contractor intends to challenge liquidated damages
on the grounds of delay or aims to avoid liquidated damages, by obtaining an
extension from the C.A or an arbitrator, the contractor will have to produce evidence
that delay occurred and that the cause of the delay gave an entitlement to an
extension. Consequently it is up to the contractor to keep records as evidence of both
delay and cause. The strength of the contractor’s case will depend on the quality of
the records.
CHAPTER 3
Most people, describe a train of events is what the result would be. They can
put those events together in their minds, and argue from them that something will
40
come to pass. There are few people told a result, would be able to evolve from their
own inner consciousness what the steps were which led up to that result.
Like a detective, a planner begins with a result (i.e. a facility design) and
must synthesize the steps required to yield this result. Essential aspects of
construction planning include the generation of required activities, analysis of the
implications of these activities, and choice among the various alternative means of
performing activities. In contrast to a detective discovering a single train of events,
however, construction planners also face the normative problem of choosing the best
among numerous alternative plans. Moreover, a detective is faced with an observable
result, whereas a planner must imagine the final facility as described in the plans and
specifications.
Setting overall completion dates must be done by the project sponsor and
stakeholders. The project manager assists in this by digesting information about
scope, deliverables, and resources, and estimating times for completion of project
tasks.
The type of person use construction work programe and the uses they make
of those schedules are as diverse as is the construction industries itself. The owner
and his representatives will use the construction work programme to monitor
progress on the construction project. The contractor’s project manager, project
superintendents, engineers and subcontractors will also use the construction work
programme.
The project completion time is the date when a project will be completed. If
the project is being performed under the terms of a contract that specifies a contract
completion date, there may be financial penalties for late completion. If the schedule
indicates that the plan will result in late completion, then the construction manager
has been put on notice that he must revise that plan. Perhaps he can employ more
44
Task times are the times that specific tasks or activities will commence or
end. With this information, the manager can make arrangements to have material,
craftsmen, and equipment on hand when they will be needed. Procurement of
material is often a critical task. The manager can schedule the preparation of
procurement specifications and shop drawings, the architect's approval of these
documents and the fabrication and delivery of the material. If the schedule does
indicate that initiation of critical tasks will be delayed by the lack of some resource,
then the manager is alerted to the need to take extraordinary action to obtain that
resource in a timely manner.
Examination of the task times may reveal conflicts that will occur between
different trades or subcontractors because of limited work space. It may also reveal
that one trade is scheduled to start a task before another trade has done work that
must be completed before that task can be started.
45
The rate of progress on the project determines the rate at which labor,
equipment, and material resources will be consumed and costs will be incurred. It
also affects the rate at which the contractor will receive progress payments. The
difference between costs incurred and paid and payments received represents the
contractor's cash flow on a project. During the early stages of a project, the cash flow
is negative, meaning that more cash has been paid out than has been taken in. The
contractor may need to borrow additional working capital if he doesn't have enough
liquid assets to cope with the problem.
The project superintendent should maintain a project diary and should make
frequent job photographs. These records, together with the updated schedule, will
indicate to the contractor the amount and reasons for delay and increased costs, and
will aid him in negotiating fair compensation from the owner. Such records may be
valuable if the contractor wishes to defend himself against penalties that the owner
intends to assess for late completion. They may also assist the contractor in
justifying increased compensation, which is warranted because of changes initiated
by the owner.
may be 10% of cumulative earnings until the project is 50% completed. There
after, if the project is on schedule, the retainage may he reduced to 5%. A detailed
schedule, one that has been properly posted with current project status, is one of
the most acceptable forms of evidence that the percentage completion claimed by
the contractor is accurate.
During the era of scientific management, Henry Gantt developed a tool for
displaying the progression of a project in the form of a specialized chart. An early
application was the tracking of the progress of ship building projects. Today, Gantt's
scheduling tool takes the form of a horizontal bar graph and is known as a Gantt
chart, a basic sample of which is shows in Figure 3:
The horizontal axis of the Gantt chart is a time scale, expressed either in
absolute time or in relative time referenced to the beginning of the project. The time
resolution depends on the project - the time unit typically is in weeks or months.
Rows of bars in the chart show the beginning and ending dates of the individual tasks
in the project.
49
In the Figure 3, each task is shown to begin when the task above it completes.
However, the bars may overlap in cases where a task can begin before the
completion of another, and there may be several tasks performed in parallel. For such
cases, the Gantt chart is quite useful for communicating the timing of the various
tasks.
For larger projects, the tasks can be broken into subtasks having their own
Gantt charts to maintain readability.
This basic version of the Gantt chart often is enhanced to communicate more
information.
The strength of the Gantt chart is its ability to display the status of each
activity at a glance. While often generated using project management software, it is
easy to construct using a spreadsheet, and often appears in simple ascii formatting in
e-mails among managers.
For sequencing and critical path analysis, network models such as CPM or
PERT are more powerful for dealing with dependencies and project completion time.
Even when network models are used, the Gantt chart often is used as a reporting tool.
In 1957 the Critical Path Method (CPM) was developed as a network model
for project management. CPM is a deterministic method that uses a fixed time
51
estimate for each activity. While CPM is easy to understand and use, it does not
consider the time variations that can have a great impact on the completion time of a
complex project.
The activities are the tasks required to complete the project. The milestones
are the events marking the beginning and end of one or more activities. It is
helpful to list the tasks in a table that in later steps can be expanded to include
information on sequence and duration.
This step may be combined with the activity identification step since the
activity sequence is evident for some tasks. Other tasks may require more
analysis to determine the exact order in which they must be performed.
Weeks are a commonly used unit of time for activity completion, but any
consistent unit of time can be used.
• Optimistic time - generally the shortest time in which the activity can be
completed. It is common practice to specify optimistic times to be three
standard deviations from the mean so that there is approximately a 1% chance
that the activity will be completed within the optimistic time.
• Most likely time - the completion time having the highest probability. Note
that this time is different from the expected time.
• Pessimistic time - the longest time that an activity might require. Three
standard deviations from the mean is commonly used for the pessimistic time.
54
The critical path is determined by adding the times for the activities in each
sequence and determining the longest path in the project. The critical path
determines the total calendar time required for the project. If activities outside
the critical path speed up or slow down (within limits), the total project time
does not change. The amount of time that a non-critical path activity can be
delayed without delaying the project is referred to as slack time.
These times are calculated using the expected time for the relevant activities.
The earliest start and finish times of each activity are determined by working
forward through the network and determining the earliest time at which an
activity can start and finish considering its predecessor activities. The latest
start and finish times are the latest times that an activity can start and finish
without delaying the project. LS and LF are found by working backward
through the network. The difference in the latest and earliest finish of each
activity is that activity's slack. The critical path then is the path through the
network in which none of the activities have slack.
Since the critical path determines the completion date of the project, the
project can be accelerated by adding the resources required to decrease the
time for the activities in the critical path. Such a shortening of the project
sometimes is referred to as project crashing.
Make adjustments in the PERT chart as the project progresses. As the project
unfolds, the estimated times can be replaced with actual times. In cases where
there are delays, additional resources may be needed to stay on schedule and
the PERT chart may be modified to reflect the new situation.
3.3.2.4 Limitations
CPM models the activities and events of a project as a network. Activities are
depicted as nodes on the network and events that signify the beginning or ending of
activities are depicted as arcs or lines between the nodes.
58
From the work breakdown structure, a listing can be made of all the activities
in the project. This listing can be used as the basis for adding sequence and
duration information in later steps.
Once the activities and their sequencing have been defined, the CPM diagram
can be drawn. CPM originally was developed as an activity on node (AON)
network, but some project planners prefer to specify the activities on the arcs.
The time required to complete each activity can be estimated using past
experience or the estimates of knowledgeable persons. CPM is a deterministic
model that does not take into account variation in the completion time, so
only one number is used for an activity's time estimate.
The critical path is the longest-duration path through the network. The
significance of the critical path is that the activities that lie on it cannot be
delayed without delaying the project. Because of its impact on the entire
project, critical path analysis is an important aspect of project planning.
• ES - earliest start time: the earliest time at which the activity can start
given that its precedent activities must be completed first.
• EF - earliest finish time, equal to the earliest start time for the activity
plus the time required to complete the activity.
• LF - latest finish time: the latest time at which the activity can be
completed without delaying the project.
• LS - latest start time, equal to the latest finish time minus the time
required to complete the activity.
The slack time for an activity is the time between its earliest and latest start
time, or between its earliest and latest finish time. Slack is the amount of time
that an activity can be delayed past its earliest start or earliest finish without
delaying the project.
60
The critical path is the path through the project network in which none of the
activities have slack, that is, the path for which ES=LS and EF=LF for all
activities in the path. A delay in the critical path delays the project. Similarly,
to accelerate the project it is necessary to reduce the total time required for
the activities in the critical path.
As the project progresses, the actual task completion times will be known and
the network diagram can be updated to include this information. A new
critical path may emerge, and structural changes may be made in the network
if project requirements change.
CPM was developed for complex but fairly routine projects with minimal
uncertainty in the project completion times. For less routine projects there is more
uncertainty in the completion times, and this uncertainty limits the usefulness of the
deterministic CPM model. An alternative to CPM is the PERT project planning
model, which allows a range of durations to be specified for each activity.
61
Extensions of the time allowed for carrying out a project are important
considerations because of the nature of the contract, which forms the basis of so
many construction projects. Planning techniques are frequently used on a project for
the evaluation of possible extensions of time caused by changes to the project. There
are many prob1ems inherent in this. Some problems arise because the techniques
were not developed for retrospective analysis, other problems arise because the
techniques are wrongly applied. This section describes, with il1ustrative examples,
some methods which can be applied to evaluate extensions, the problems which
might be encountered and possible solutions to them. It should be remembered that
the calculated extensions of time should be used as negotiating positions rather than
statements of extensions. The information contained in the section is equally valid
for clients and contractors.
Consider the example below. The scenario is quite complex and some time
should be spent understanding what is happening and way. The connections, which
represent the technology of the method, are represented in Figure 4. The connection
between the brick activities has not been included because it only represent the
contractor’s preferred method of work showing the intended progress of resources.
Consider the following variation to the project:
62
• The contractor fail to start building 1 until week 3 for reasons which are
not in dispute and for which the responsibility is accepted as the
contractor
The variations that arise can now be applied at the times at which they
became apparent. There is no clarity in the example as to when this was and
therefore it is suggested that a worst case scenario should be adopted in which it is
assumed that the delays are known about only just before they occur.
In this case, the failure to start building 1 would be known about at the start
of the project and the situation would be as shown in Figure 5. It is important to note
that the delay to the building would not have extended the project because an
experienced contractor would have been expected to take mitigating action, which in
this case would have meant increasing the number of bricklaying resources to enable
the two buildings to be worked on together. Whoever caused the delay might be
expected to pay for the extra resources required but would not be expected to pay for
63
The second variation affected only building 2. It took effect in week 2 and,
for this exercise, it is assumed that it became known about at the start of week 2.
This is illustrated in Figure 6 which shows the state as known about at this time with
a reschedule done from start of week 2.The work actually carried out is shown in
black.
It can be seen that this variation is quite important to the project. It extends
the project duration to 11 weeks and reduces the amount of time for which the
doubling of resources is required. This is brought about because the path which has
been extended contains only technological constraints. If this delay were caused by
the client then it is suggested. that the client should pay for an extension to the
project but should not pay for extra bricklaying resources.
Figure 7 shows the effects of the next stage of the delays. In this, there are
concurrent delays to building I and building 2 . They occur at the start of week 4.
The actual work done on the project is shown in black and it can be seen that one-
third of building 1 concrete structure is complete while half of the original building
2 concrete structure and all the previously known delay to it is complete.
Figure 7: Project with concurrent variation to the two buildings (Planning and
Controlling Construction Projects-The Best Laid Plans, 1996)
Rescheduling from the start of week 4 shows once again that the project is
delayed by a week and now is forecast to take 12 weeks. The variation which caused
this delay can clearly be seen to be the one which affected building 2. The variation
to building I had no effect at all on the project duration hut did have an effect on the
timing of the resource demands and, if it was extra work rather than delay, would
65
All these stages have been carried out in a manner which models the behavior
of a reasonable contractor. That is, as the variations have become known, the work
has been rescheduled assuming the same technological logic and wherever possible
maintaining the concept of the work method which in this case meant using a single
bricklaying gang. The ownership of the delays to the project and the extra cost are
apparent from the analysis.
On a more complex project, the same method should be followed and the
rescheduling process wou1d be the same in principle but rather more time-
consuming.
67
CHAPTER 4
4.0 Introduction
the provision of work progamme are quite detailed discussed in CIDB 2000 form of
contract rather than PAM 98 form of contract.
Both PAM 98 and CIDB 2000 are not stated the provision of having work
programme under the extension of time clause, but there is stated under clause of
contract document. In other words, there are no direct link in clause of extension of
time and requirement of work programme.
However under clause 3.5 and 3.6, there are stated that the work programme
is not consider as a part of contract documents and do not relieved the contractor
from his obligations and responsibilities.
69
The provision of work programme is stated under clause 5.1 in CIDB 2000
form of contract and it seems to be more detailed describe in clause 5.1 (a) which
defined the expected work programme should clearly identifying the sequence, logic
and critical path in which he propose to carry out the Works including the various
work activities and milestones to be achieved.
Both of PAM 98 and CIDB 2000 stated later in clause 3.5 and clause 5.2(a)
that work programme is not a part of contract document and shall not treated as one.
The said clauses dilute the significant of the work programme and its contractual
effect arising from any aberrations to the programme. The effect of making the
programme an express requirement without it being a contract document is that while
the contractor may be in breach for the failure to provide the programme, he may not
be in breach if the series of events are not followed as scheduled.
The two clauses from two different standard form of contract above are more
likely to each other, except that CIDB2000 contents more detail on the provision.
JCT Standard Building Contract 2005 at clause 2.27…if and whenever it become
reasonably apparent that the progress of the works or any section is being or is likely
to be delayed the contractor shall forthwith give written notice..
points in work programme that make it strong and useful to the industry which will
be discuss further in the next discussion.
..the S.O shall soon as he is able to estimate the length of the delay beyond
the date or time aforesaid make in writing a fair and reasonable extension of
time for completion of the work…(Clause 43, PWD 203 A)
..the architect shall consider the relevant events causing delay and by written
notice to the contractor give a fair and reasonable extension of time..( clause
23.2, PAM 98)
…the S.O may in his absolute discretion, grant a fair, reasonable and
necessary extension of time..( Clause 24.5, CIDB 2000)
The term used (fair and reasonable) is considered as a subjective term which
no actual method or systematic calculation in stating the number of days. A
prominent case which discussed about this matter is John Barker Construction Ltd. v.
London Portman Hotel Ltd (1996).
71
The project was dealt under two contract, one was concerned the ground the
ground and first floor of the hotel and the other one was concerned the second to
eleventh floor of the hotel. The dispute and argument is more basically about the
unsatisfied extension of time given. The party involved in the contract were Gleeds,
acting on behalf of the defendant and acted as quantity surveyor, Mr. Miller of RPW
Ltd as the erchitect nominated in the building contract, Mr. Pickavance as the expert
witness of work programming and others. At the finding of this complicated case, Mr
Recorder Roger Toulson QC had stated that:
“…I accept that defendant had made a fair assessment of the extension of
time due to the plaintiff. It is fairly apparent that the defendant were
concerned by the overrun of the contract in time and costs, and I have no
doubt that the defendant was conscious of this, but I believe also that he
endeavoured to exercise his judgment independently. However, in my
judgment his assessment of the extension of time due to the plaintiff was
fundamentally flawed in a number of respects, namely :
i. Mr. Miller as behalf of the defendant did not carry out logical analysis
in a methodological way of the impact which the relevant matters had
or were likely to have on the plaintiff’s planned programme
ii. He made an impressionistic, rather than a calculated, assessment of the
time which he though was reasonable for the various items individually
and overall
On the evidence, I accept that at the time of the acceleration agreement the
plaintiff’s planned resources were reasonable for their planned programme. I
accept that the subsequent variation were likely to have and had a disruptive
72
effect on that programme, and that the exercise which plaintiff has done is a
fair way of calculating a reasonable extension of time…”.
From this case, it was said that in exercising his duty under clause 25 the
architect or C.A must undertake a logical analysis in a methodological way of the
impact of the relevant events on the contractor’s programme. The application of an
impressionistic rather than a calculated and rational assessment is not sufficient. The
terms of logical analysis in methodological way gave a significant impact in
approving extension of time in this case. Further, it was said that the extension is
flawed if the architect makes an impressionistic rather than a calculated assessment
bearing no logical or reasonable to the delay caused. At the same case, the judge also
said:
The case between Balfour Beatty (BB) and defendant Lambeth was for the
refurbishment and remodeling of Falmouth House, Penwith Manor Estate,
Kennington Park Road, London under the JCT Standard Form of building contract
1998 edition. In the judge’s basis argument, it was found that:
ii. BB’s programme do not comfort or comply with any of the recognized
and accepted delays analysis methods.
From the two prominent cases as mentioned above, it is clear that the
provision of fair and reasonable extension of time should not be taken as a subjective
matters which SO or CA can simply awarding reasonable period of time to the
contractor. It must be in calculated and logical method no matter what kind of work
programme they are going to use.
There are obvious that in Malaysian standard form of contract are not clarify
the terms of logical analysis, but from the judgment of the above mentioned two
cases, it can be considered the term in clause 43, PWD 203 A means something. It is
stated… S.O shall soon as he is able to estimate the length of the delay.. the words is
able to estimate should be taken in a wider perspective. What define the word able
here? It cant be just a simple estimation, it should be based on something stronger to
make the SO looks capable in doing his job. In John Barker case, it was alleged that
the architect had been negligent in awarding extension of time because it seems that
he is not able to award extension of time based on a logical analysis and
methodological way.
The other terms in Malaysian standard form of contract which sound like
subjective matters but could be in deeper meaning and understanding is in clause
24.5, CIDB 200,.the S.O may in his absolute discretion, grant a fair, reasonable and
necessary extension of time.. The word necessary here should be taken into more
detail understanding. It is surely not the intention of this clause to just simply said
that any award of extension of time is necessary by an authorized SO or CA. By
referring the cases above, necessary extension of time is supposed to be based on
logical analysis and again with methodological method, therefore the necessary word
needs a better definition to avoid any confusion assumption.
74
From the judge statement, it is far from clear that a critical path analysis is
always required or merited. In the case of certain types of delay it may be so plainly
obvious that a delaying event has affected the critical path that provided such an
event is properly evidenced and based in fact and is a relevant event then the
contractor will be entitled to the time.
The earlier case of Henry Boot Construction (UK) Ltd v. Malmaison Hotel
(Manchester) Ltd. (1999) which under JCT Standard Form of Contract had also
stated the importance of having critical path analysis in a construction project and yet
further confirmation of the requirement to establish the critical path. It was held by
Dyson J. that ,
“ the respondent was entitled to respond to the claim both by arguing that
the variations, late information and so on relied on by the claimant did not
cause any delay because they were not on the critical path and positively by
arguing that the true cause of delay was other matters”
This confirms the view that, in order to establish that an event has affected
the completion date, it must be shown that it falls on the critical path.
The later case on critical path terms found in Motherwell Bridge Construction
Ltd v. Micafil Vakuumtechnik (2002), Micafil was engaged as main contractor for the
construction of an autoclave under modified FIDIC 1998, a large steel vessel with an
internal volume of 650m3. The vessel was to be used in the manufacture of high
quality power cables.
Micafil undertook responsibility for the design of the vessel and sub-
contracted its construction to Motherwell Bridge. The project did not run smoothly.
During construction Motherwell Bridge raised many technical queries and there were
a number of significant design changes issued by Micafil. There were two major
formal amendments to the contract. Delays occurred and Micafil deducted liquidated
damages. Motherwell Bridge in turn claimed extension of time to extinguish the
claim for liquidated damages.
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“ Crucial questions are (a) is the delay in the critical path, and if so, (b) is it
caused by Motherwell? If the answer to the first to the question is ‘Yes’ and
the second question is ‘No’ then I must assess how many additional working
days should be include”
The judgment of the case can be defined as if the delay touch on the
programmed critical path and it was not caused by the contractor, the contractor is
entitle to get reasonable time extension.
The passage from Henry Boot referred to above also points to some of the
principle defenses to a delay claim. In order to show that an event was not on the
critical path, the defendant has to argue that the claimant’s version of the critical path
is incorrect and must prove on the balance of probabilities that the critical path in fact
went elsewhere.
Other related case is The Royal Brompton Hospital NHS v Watkins Gray
International (UK) (2000), His Honour Judge Richard Symour QC concluded the
basic skills for the architect to practiced. First is the skill of construction knowledge,
the architect is encourage to have an in-depth knowledge of construction and the
inter-relation between trades and construction operations. The second skills which is
relevant with this topic is to understanding the programming techniques. Architect
usually have to adopt an appropriate programming techniques to analyze the effect
various events. By having the knowledge to analyze the link between cause and
effect make it easier task for architect to determine the delay had or had not caused
the critical path and it will lead to the extension of project completion date, and the
final skill is to have a deep knowledge in contractual matters.
77
On this basis, it was concluded that the late information could not have
caused actual delay. The judge concluded that there had to be some finding of a
causal link between the late submission of information and the potential delay to the
completion of the works. It was not enough for the contractor simply to show that the
information was late. Whichever delay analysis method was used it was therefore
necessary to take account of the progress of the works at the point that the claimed
delay event occurred.
The other case which had touch on the absent of link is Balfour Beatty
Construction Ltd v. The London Borough of Lambeth (2002). The main issue in this
case was not on causal link directly, but Judge Lloyd in his judgment had quoted on
78
importance of having the causal link. It was found that Balfour Beatty was unable to
identified the critical path on its programme as there were not a critical path analysis
but were a simpler bar chart without any links. In this case, it was clear that Balfour
Beatty did a little or nothing to present its case in a logical or methodical way. There
then was no attempt to provide a critical path analysis.
The definition of doing work regularly and diligently had been discussed in
chapter 2. Almost all contract determination clauses in Malaysian standard form of
contract have stated failing to do works regularly and diligently is one of the events:
Clause 25.1(ii) of PAM 98..fails to proceed regularly and diligently with the
works
Clause 44.1(iv) of CIDB 2000..he fails to proceed with the design (to the
extent required by the contract) and/or the execution and completion of the
works with due diligence and expedition..
From the clauses above, one of the reason or event which can bring the
contract to the end by employer if it was proved the contractor were not doing the
agreed work regularly and diligently. The next question will be how the employer
can detect his contractor did not perform the works regularly and diligently? The
most logical answer to this is by referring to the project work programme.
79
From the statement above, there are two obvious points of the weakness of
using a work programme, one is having different result fron different methods and
also the accuracy of the programme really depends on the quality of the information.
80
It had been stated in above mentioned judgment of case, where was accepted
by one of the programming expert about this problem. It also will bring out
difficulties because there are no specific recommendation by any standards form of
contract in Malaysia in preparing the work programme.
There are no specific way how to prepare a good work programme, means
there are no standard form in the work programme contents. In PAM 98, there are no
clause about how a work programme should look like, or there are no guideline of an
expected work programme. The contents are usually depends on the requirement
from client or it is up to the programmer expertise.
81
Apparently, this could not be said of the evidences which been provided by
Egger’s programming expert. Judge Wilcox was severely critical of this evidence on
a number of levels. Firstly, he made clear his frustration with the too complexity of
the report (Egger’s). It had ran into several hundreds of pages supported by 240
charts. Egger’s expert had been supported by a team of assistants and it appears that
the report he had prepared was too complex and extensive for the court to easily
assimilate.
There are might be other cases which had touched on the presentation quality
of a work programme. What the above mentioned case had proved that complexity of
a work programme did not promise the quality of it. The more important is to keep
the information inside the work programme easily understood and can be a good tool
of data proving to any background of individual.
CHAPTER 5
5.1 Introduction
Extension of time provision is not purposely for the sake of the contractor
only, it is also give a meaningful benefit for the employer. It is a win win situation,
where every parties involved will get the benefit and it will lead to a very good
relationship which finally result a good quality of works with minimum disputes. In
a construction progress, disputes can possibly happened everyday at every level and
any reason, this is where the importance of having a planned programme to foresee
the activities planned and the implementation of the works.
Critical path analysis is a strong evidence in proving the delay occurred will
or will not effect the date of completion. Most of the method in preparing a work
programme had included critical path analysis as a main element. The importance of
having critical path analysis; where user can identify activities and sequence of work
that will effect the completion date by occurr the critical activities or events. By
knowing the events or delay, it can determine who is responsible on the delay and
this will helping granting extension of time if it is proved not the fault of the
contractor. By having information through this method is more systematic.
85
Work programme also promise a logical analysis and the method of awarding
days for extension of time is made in a methodological way. It is not a assumption
from the expertise but it is more in proper calculated method. Hence, it will reduce
the queries on what basis the number of extension days had calculated
In a good work programme, it is also can determine the causal links between
the cause and effect of an activity. Only an event which has affected the links will be
considered. It can be said that the links is clearly can be seen by using a proper and
technical method in a work programme.
A contractor is entitled for extension of time if he can proved that he had used
his best endeavour and had tried his best to avoid the delay. He is also must proved
that he is doing the works with regularly and diligently. Even it is not a legal
provision to grant an extension of time but it at least can help the contractor to prove
that his background of working procedure is in proper manner and run smoothly
without causing any delay. By having an updated progress of work, the condition of
work on site can be traced and therefore it can determine the quality of work by
contractor.
Therefore, even there were judgments in court cases which prefer a good
work programme as one of the concrete evidence; it is still have weaknesses to be
avoided. The main disadvantage is the variety of methods in preparing work
programme, and due to that it will lead to a different result. Therefore it is also
believed that someone who is really expert should be appointed in handling the
preparation of work programme, and that means additional cost is required in
ensuring the presentation of a work programme is not just in high quality but
acceptable by others.
From all the argument above, it is clear that by having a good quality of a
work programme is become one of the important needs today, to face difficulties and
disputes in the industry, but the responsible parties still have to study the weakness of
the usage and put some afford to deal with it in producing a right method that can be
very useful to the industry.
5.4 Recommendation
parties involved should form a standard format of a work programme and utilized it,
means keep updating it for ensuring the quality of information needed
Dennis F. Turner & Alan Turner (1999). Building Contract Claims and Disputes,
2nd Edition. England: Addison Wesley Longman Limited
Donald Keating (1978). Building Contract, 4th Edition. London: Sweet & Maxwell
Duncan Wallace (1980). Hudson’s Building and Civil Engineering Contract. London
: Sweet & Maxwell
John Murdoch, Will Hughes. (1996). Construction Contract: Law and Management,
2nd Edition. London: E & FN Spon.
Jonathan F. Hutching (1998). Construction Claims Manual for residential
Copntractor. NewYork : McGraw-Hill
Lim Chong Fong (2004). The Malaysian PWD Form of Construction Contract.
Malaysia : Sweet & Maxwell Asia
Sundra Rajoo (1999).The Malaysian Standard Form of Building Contract (The PAM
1998 Form). Kuala Lumpur: Malayan Law Journal
Vincent Powell-Smith and John Sims (1989). Building Contract Claims. London :
BSP Professional Books.