Eot Nov 2019 - Part 1 PDF

4/11/2019
m e
T i
o f
i on
ns November 2019
x te
E Facilitator:
Derick Chow Kok Onn
LL.B(Hons)., B.Sc.(Bldg.)Hons., M.B.A
MSIArb,
OBJECTIVES OF THE WORKSHOP
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Part A: EOT
Ti
f
1. Review basic concepts of EOT
o
2. Essential EOT processes
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 Contractor’s obligations
i o
 Overcoming non‐compliance with
s
condition precedents such as timely
n
notification
e
 REDAS, SIA, LTA and PPSCOC EOT
x t
procedures
E
3. Application of EOT concepts and introduction
to delay analysis techniques (DAT)
4. Other related EOT concepts and practices
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OBJECTIVES OF THE WORKSHOP
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o f
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Part B: Financial side of EOT= Loss/Expense
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1. Review basic concepts of delay cost +
i
disruption cost
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2. Essential loss/expense processes
te n
3. REDAS, SIA, LTA and PPSCOC contract
provisions
x
4. Sample/example of a loss/expense claim
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PART 1: EXTENSION TIME
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1. Basic Concepts and Terminology of
n
EOT
x te
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5
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Basic Concepts and Terminology:
Ti
f
1. Time for Completion
o
2. Time is of Essence
n
3. Time at Large
4. Extension of Time + Liquidated Damages
i o
5. Types of delays
s
 Excusable
n
 Compensable
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 Non‐Compensable
t
 Non‐excusable
x
 Concurrent
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6. Float
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Basic Concepts:
n o
o
1. Time for completion
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 A.K.A: ‘practical completion’; ‘substantial completion’
ns
 Not defined in standard forms
te
 Addressed in Jarvis v Wesminster + Neville V Williams
x
 ‘Snagging’ + defective items
 ‘de minimis’ work
E
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Basic Concepts:
Ti
o f
n
 When time is of essence to a contract, this would mean that term
o
for time for completion is a condition and not a warranty.
i
 A breach of condition will give rise to a right for the innocent
s
party to refuse performance and/or demand for damages.
n
 A breach of a warranty gives the innocent only the right to
t e
demand for damages.
E x
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Basic Concepts:
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o
i o
 The Malaysian court in Tan Ah Kian v Haji Hasnan [1962] MLJ 400 gave
three common instances where time would be of essence:
s
•Time for completion is expressly stated in the contract;
te n
•Time for completion was made of essence subsequently through serving of
a reasonable notice; and
x
•Time of completion is construed to be of essence from the subject matter
E
of the contract taking into consideration all circumstances relevant to the
contract.
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Basic Concepts:
Ti
o f
n
 Is time is of essence in a typical construction contract?
o
‘Though it is often been said, and routinely reproduced as
i
boilerplate clause in most commercial contracts, it is strictly
s
not accurate to state merely that “time shall be of the essence
n
of the contract”: it would be more accurate and reflective of the
e
intention of the parties to state that time would be of essence
t
with respect to which provision or provisions of the contract.’ –
x
CK Oon
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Basic Concepts:
n
o
i o
 Is time is of essence in a typical construction contract?
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 EOT clause makes time NOT of essence
n
 Most likely time is not of essence in common forms such as
te
PSSCOC, REDAS, SIA and LTA
E x
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Basic Concepts:
Ti
3. Time at Large
o f
n
 Means no fixed date for completion;
o
 Contractor to complete within reasonable period;
s i
 If time is at large, LD not applicable
n
 Situations where time goes at large:
t e
 No date fixed for completion
x
 Fixed by ceased to be so by mutual agreement
E
 Waiver by owner/employer
 Interference by owner/employer
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Basic Concepts:
n
4. Extension of time
o
i o
 From the perspective of the Contractor; provides ‘certainty’;
s
 LD applies if contractor fails to complete on time (culpable
n
delays);
te
 LD does not apply if employer prevents completion on time
(excusable delays):
x
o Reason: One cannot benefit from one’s own fault;
E
 From the perspective of the Employer; EOT is a contractual device
to protect the rights to recover Liquidated Damages; reset the
contract completion date of which original completion date was
invalidated by the Employer
13
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Basic Concepts:
Ti
o f
n
 Hudson’s Building & Engineering Contracts‐ ‘…where the reason is
o
some act of the employer or his architect or engineer preventing
i
completion by the due date, it cannot be intention of the parties that
s
liquidated or other damages should be calculated from that date
[original completion date]
t e n
E x
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Basic Concepts:
n
o
s i o Employer’s Variations/late site
Contractor’s
delays
n
possession etc
x te Completion
E
Contract delayed
Completion
Date
No L.D. can be imposed; Contract
Completion Date invalidated
15
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Basic Concepts:
Ti
o f
o n
Contractor’s
Employer’s Variations/late site
i
delays
possession etc
n s
x t e Contract E’s right to
E
Completion recover LD
Date preserved
EOT Clause
resets CCD
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Basic Concepts:
n
o
i o
 EOT clause is drafted to neutralize the effect of what is known as
s
‘PREVENTION PRINCIPLE’
n
 For the benefit of the employer; and
te
 To the detriment of the contractor
x
 On the surface, explanation seems counter‐intuitive on the surface;
makes sense if analyze in terms of rights and liabilities.
E
17
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Basic Concepts:
Ti
o f
4. Extension of time – typical relevant events
n
 Risk events are allocated along the lines of contractor risk events or
i o
employer risk events:
s
 Delays for contractor risk events‐ LD applies
n
 Delays for employer risk events – EOT granted & LD not
t e
imposed + possibility of compensation
x
 Examples of contractor risk events:
E
 Inadequate manpower/resources
 Poor management & planning
 Late delivery of materials + equipment
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Basic Concepts:
n o
o
i
 Examples of employer risk events:
ns
 Delay in site possession
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 Variations
x
 Late nomination
E
 Late issuance of drawings
 Delays in approving contractor’s proposals/materials
 Delays in payment
 Neutral events – force majeure, strikes, trade embargoes
19
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Basic Concepts:
Ti
o f
n
 Courts interpret EOT clause ‘contra proferentem’
s i o
t e n ‘Interpretation lean against
x
the one that attempts to rely
E
on it for his own benefit’
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Basic Concepts:
n o
o
4. Liquidated Damages (Nature)
i
 Dunlop Pneumatic Tyre Company v New Garage and Motor
s
Company [1915] AC 79
te n
Pre‐estimated genuine loss; not a penalty; penalty is not
enforceable if contested in a court
x
 Peak v Mckinney Foundation:
E
‘The liquidated damages clause contemplates a failure to
complete on time due to the fault of the contractor. It is inserted
by the employer for his own protection; for it enables him to
recover a fixed sum as compensation for delay.’
21
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Basic Concepts:
Ti
5. Types of Delays
o f
n
 Excusable delays – arises from events stated in the contract where
i o
EOT could be granted:
s
 Compensable delays:
n
o Employer related acts or omissions e.g. late issuance of
t e
drawings;
x
 Non‐compensable delays:
E
o Largely neutral events – arose from neither the fault of the
employer nor the contractor e.g. riots, industrial action or
force majeure
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Basic Concepts:
n o
o
5. Types of Delays
i
 Non‐excusable/Culpable delays
ns
 Delays that arise from events not specified in the contract as a
te
‘relevant event’ that entitles the Contractor to EOT.
 Risks of such events are borne solely by contractor
E x
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Basic Concepts:
Ti
5. Types of Delays
o f
n
 Concurrent delays
i o
 Occurrence of both excusable and culpable (non‐excusable)
s
delays:
n
o Most controversial, complex and a source of disputes
t e
o Most prevalent form of delays due to the nature of
x
construction projects where a large number of activities are
E
carried out concurrently.
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Basic Concepts:
n o
o
5. Types of Delays
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ns
 Definition by Society of Construction Law (SCL):
te
 ‘True concurrent delay is the occurrence of two or more
delay events at the same time, one an Employer Risk Event,
x
the other a Contractor Risk Event and the effects of which
E
are felt at the same time.’
25
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
 True concurrency rarely occurs in projects
n s
x t e
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Basic Concepts:
n o
o
5. Types of Delays
i
 Concurrent delays – issues
ns
 Culpable delay extinguish right for EOT due to excusable delay?
te
o City Inn v Shepherd Construction:
x
‘.. the fact that delay has been caused by matters for
which the Contractor is responsible will not
E
deprive the Contractor of his right to claim an
extension of time for delay caused by a relevant
event.’
27
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
 If the right to claim EOT is not extinguished in concurrent
s
delays, will the EOT be apportioned?
n
o City Inn v Shepherd Construction favored
t e
apportionment (Scottish precedent)
x
o Henry Boot v Malmaison Hotel held that full quantum
E
for EOT to be granted for excusable delay(s) (English
precedent)
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Basic Concepts:
n o
o
5. Types of Delays
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ns
o Walter Lily v Mackay affirmed Malmaison’s approach:
te
‘where there is an extension of time clause such as that
agreed upon in this case and where delay is caused by two or
x
more effective causes, one of which entitles the Contractor
E
to an extension of time as being a Relevant Event, the
Contractor is entitled to a full extension of time.’
Rationale: Not granting the full extent would mean allowing an employer to commit acts of
prevention throughout the period of concurrency without granting extension of time and yet
reserves the right of recovery of LD should the overall progress is being delayed.
29
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
 Possible treatments for concurrent delays
s
i. Apportionment approach [City Inn v Shepherd
n
Construction]
x t e
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Basic Concepts:
n o
o
5. Types of Delays
i
ns
te
ii. Malmaison approach [Henry Boot v Malmaison; Wlater
Lily v Mackay]
E x
31
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
s
iii. SCL’s approach:
e n
a. the employer delay is not seen as causing delay,
t
therefore, there is no concurrency; and
x
b. concurrent delay only arises where the employer delay
E
event is shown to have actually caused delay to
completion; the contractor’s concurrent delay should
not reduce any EOT due.
32
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Basic Concepts:
n o
o
5. Types of Delays
i
ns
te
iii. SCL’s approach: (a) employer’s delay not an effective cause
of delay
x
.
E
33
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
s
iii. SCL’s approach: (b) employer’s delay is an effective cause of
n
delay; the contractor’s concurrent delay should not reduce
t e
any EOT due
x
.
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Basic Concepts:
n o
o
5. Types of Delays
i
ns QUIZ: Which of the following situations will the contractor be
te
granted with EOT to the fullest extent?
Situation No: 1
E x
35
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
QUIZ: Which of the following situations will the contractor be
s
n
Situation No: 2
x t e
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Basic Concepts:
n o
o
5. Types of Delays
i
te
Situation No: 3
E x
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
QUIZ: Which of the following situations will the contractor be
s
n
Situation No: 4
x t e
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Basic Concepts:
n o
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5. Types of Delays
i
te
Situation No: 5
E x
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Basic Concepts:
Ti
5. Types of Delays
o f
n
QUIZ:
s i o
t e n
E x
40
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Basic Concepts:
n o
o
5. Types of Delays
i
 Concurrent delays – relevant case law in Singapore
ns
Aoki Corp V Lippoland Singapore Pte Ltd (1995)
te
‘…..There may be further complications where there are concurrent
delays or multi‐event delays attributable to different to different
x
factors in which case the architect has to assess the critical causes of
E
the delay and make due allowances, if any, when evaluating the
length of extension to be granted.’
Comment: Once of the earliest cases that recognizes the existence
of concurrent delays but gave no definition or direction on how to
manage such delays.
41
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
Multiplex Constructions Pty Ltd v Sintal Enterprise Pte Ltd
s
(2005)
n
The judgement states that Sintal had claimed that there bad been
t e
‘overlapping period so delay and as such Multiplex “….should have
x
apportioned the loss between the two‘….’
E
Comment: ‘Apportionment’ approach was favored by Sintal but the
court gave no direction on this matter.
42
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Basic Concepts:
n o
o
5. Types of Delays
i
ns
PPG Industries (Singaproe ) Pte Ltd v Compact Metal
te
Industries Ltd (2013)
‘We do not find [the delay expert’s] explanation to the effect that two
x
delaying events did not cause concurrent delaying events to the
E
completion persuasive.’
Comment: The term ‘concurrent delay’ was utilized in court but
like the earlier cases, there was no attempt by the court to define
and formulate the approach in dealing with disputes involving
concurrent delays.
43
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Basic Concepts:
Ti
5. Types of Delays
o f
n
 Concurrent delays – present position in Singapore
i o
Courts in Singapore have not developed an approach to deal with
s
concurrent delays. Without clear directions from the courts in
n
Singapore, any disputes involving Singapore will have to be
e
managed based on court decisions of other countries such as UK,
t
US, and other commonwealth countries.
E x
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Basic Concepts:
n o
o
5. Types of Delays
i
 Concurrent Delays‐ Provisions in SIA 2010
ns
The contract states within Clause 24 [Completion Delay and Liquidated
Damages], at 24.(3)(a) that:
te
“If while the Contractor is continuing to work subsequent to the issue of a Delay
x
Certificate, the Architect gives instructions or matters occur which would entitle
E
the Contractor to an extension of time under … Architect shall as soon as possible
grant to the Contractor the appropriate further extension of time in a certificate
known as a ‘Termination of Delay Certificate’.’.
45
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Basic Concepts:
Ti
5. Types of Delays
o f
n
 Concurrent Delays‐ Provisions in SIA
i o
The contract states within Clause 24 [Completion Delay and Liquidated
s
Damages], at 24.(3)(b) that:
n
“Such further extension of time granted shall have no immediate effect
e
nor shall it prevent the deduction or recovery of liquidated damages by
t
the Employer until the issuance of the Termination of Delay Certificate.”
E x
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Basic Concepts:
n
5. Types of Delays
o
i o
ns
NOT APPARENT THAT CONCEPT OF CONCURRENT DELAY IS
te
BEING INCORPORATED IN THE SIA CONTRACT
x
1. LD will not cease immediately even with EOT
E
2. Neutral events /delays will not entitle C to EOT
CCD Extended CCD
Issuance of TDC
LD Payable Red line: Employer’s delays 47
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Basic Concepts:
Ti
5. Types of Delays
o f
n
 Concurrent Delays‐ Provisions in REDAS D&B Contract 2010
i o
The contract states within Clause 18 [Determination of Extension of Time] at
s
Clause 18.1 that:
n
“..The Employer’s Representative shall take into account the following:
xt e 18.1.2 Any delays due to the ground or grounds relied upon by the C
which may operate concurrently with each other or with any
E
delays due to acts of defaults of the Contractor.”
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Basic Concepts:
n o
o
5. Types of Delays
i
 Concurrent Delays‐ Provisions in PSSCOC 2014
ns
The contract states within Clause 14 [Time for Completion] at 14.3(3) that:
te
“..The Superintending Officer shall take into account the effect, or extent, of any
work omitted under the Contract and shall also take into account whether the
x
event in question is one which will delay completion of the Works. The
E
Superintending Officer shall also take into account any delays which may operate
concurrently with the delay due to the event or events in question and which are
due to acts or default on the part of the Contractor.”
49
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Basic Concepts:
Ti
5. Types of Delays
o f
n
 Concurrent Delays‐ Provisions in LTA Contract
i o
The contract states within Clause 51.3.1 [Extension of Time] that:
n s
“..the Engineer upon receipt of any notice, particulars and estimate under Clause
51.2 …..in determining a fair and reasonable time extension, the Engineer shall
t e
have regard to the factors contributing to the delay to the progress of the Works
whether such delay arises from or is associated with any Relevant Event or
x
otherwise due to the Contractor’s own action or default..”
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Basic Concepts:
n o
o
5. Types of Delays
i
 Concurrent Delays
s

n
Note that in the absence of any express provisions in a contract on how
concurrent delays shall be dealt with, the common law precedents or
te
the SCL Protocol could be implied into the contract to fill the gaps.
x
 If the parties to a contract negotiated and agreed to an express
provision on how concurrent delays shall be treated, there will be no
E
room to imply other approaches i.e. those adopted by courts or the
SCL.
 It is also possible to incorporate express provisions into the contract to
limit or exclude risks and responsibilities of concurrent delays for the
benefit of one party and to the detriment of the other.
51
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Basic Concepts:
Ti
5. Types of Delays
o f
n
i o
i. An example of limiting the liabilities of concurrent delays
for the benefit of the employer:
n s
x t e
E 52
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Basic Concepts:
n
5. Types of Delays
o
i o
s
ii. A case of carving out liabilities of concurrent delays for the
n
benefit of the employer:
te
North Midland Building Ltd v Cyden Homes Ltd (2018 EWCA Civ
1744
x
The contract amended the standard JTC extension of time wording to
E
include a concurrent delay exclusion: ‘any delay caused by a Relevant
Event which is concurrent with another delay for which the Contractor
is responsible shall not be taken into account’.
Court held that the expressly agreed approach shall be the operative
approach for the contract i.e. exclusion of concurrent delay. Common
law doctrines cannot be implied into the contract to subvert the
operation of the express provision in the contract.
53
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SUMMARY ON KEY CONCEPTS OF DELAY
f T
Types of Delay
Excusable
n o Non‐Excusable
s i o
n
Compensable Concurrent Delay
xt e Non‐Compensable
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Basic Concepts:
n
QUIZ: TYPES OF DELAYS
o
s i o
te n
E x
55
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Basic Concepts:
T
o
f
i o n
n s
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Basic Concepts:
n
o
s i o
te n
E x
57
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Basic Concepts:
Ti
6.Float
o f
n
 Period of time in a program acting as a ‘buffer’ or ‘float’
i o
 Party to benefit the float depends on the contractual position; in the
s
absence of any express provisions to the contrary:
n
 Float must be used up before EOT can be granted
t e
 Courts reluctant to imply an obligation to do things to preserve
x
the float – (see the case outlined in the next slide
E 58
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Basic Concepts:
6.Float
n o
s i o
te n
E x
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Basic Concepts:
Ti
6.Float
o f
n
 A subtle manipulation of float is the use of constraints to sequester
i o
an activity’s float by requiring that activity, group of activities, to be
carried out as late as possible, effectively using up the available float.
n s
x t e
E 60
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Basic Concepts:
n
6.Float
o
i o
 Issues of sequestering float by manipulation:
s
i. Early start and finish dates shifted to late start and late finish
n
dates.
te
ii. Succeeding activities shall be correspondingly affected.
x
iii. Float manipulation adds to confusion and potential dispute
E
over reasonableness of the programme.
61
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Ti
f
Float Ownership
n o
s i o
t e n
E x
62
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Float Ownership
o f
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ns
x te
E
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Ti
o f
i o n
s
2. Essential EOT Processes
t e n
E x
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2. ESSENTIAL EOT PROCESSES
o f
i on2.a) Contractual Procedures (REDAS, SIA,
PSSCOC, LTA)
s
 Grounds to enable EOT application
n
 Contractor’s obligations:
te
Notification as a condition precedent
 Sufficiency of information
x
 Timeline for granting of EOT
E
2.b) Delay analysis techniques – an overview
65
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Grounds for EOT:
Ti
1.
o f
See tabulations for SIA, REDAS, PSSCOC and LTA forms of
n
contract and typical way ‘wet‐days’ are computed
i o
2. As observed, different forms of contract vary in terms of
grounds/relevant events entitling EOT:
n s
 SIA , REDAS and PSSCOC provide quite a comprehensive
e
list of grounds/relevant events
t
 LTA Contract falls short on Force Majeure (neutral events);
x
could be an issue if such events do occur; merits a more in‐
E
depth discussion
66
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ϯͬϴͬϮϬϭϵ
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Grounds for EOT:
n o
s i o
te n
E x
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i
Grounds for EOT:
T
o f
i o n
DEFINITIONOFWETDAYSANDWET
s
DAYSCOMPUTATION
t e n
E x
68
ϯϰ
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T i
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i on
EXTENSION OF TIME
ns
x t e
SUMMARY OF EOT CLAUSES
E
SIA, REDAS, LTA AND PSSCOC
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Ti
o f
i o n
ns
x t e
E
GROUNDS FOR EXTENSION OF TIME SIA CONTRACT (9TH EDITION)
e
CLAUSE SUBSTANTIVE PROVISION REMARKS
m
23(1) Contractor must have taken all Proof of mitigation is required in the
i
reasonable steps and due diligence to submission of the application for EOT
T
avoid or reduce the impact on the
f
Date of Completion
o
23(1) (a) Force Majeure Not a term of art and carries a very restrictive
n
meaning due to the extensive coverage in
23(1) (b), (c), (d) & (e)
s i o Potential events not covered by other sub-
n
clauses are flooding, haze, pandemics (bird
flu), power shutdown due to terrorism,
te
industrial accidents at power generation
x
plants etc
E
23(1) (b) Exceptionally adverse weather Based on 10-year record on wet days kept by
conditions Meteorological Services Dept. Anything in
excess of the 10-year average shall be
considered as adverse weather conditions
23(1) (c) Fire, storm, lightning, high winds etc Restricts the meaning of Force Majeure
23(1) (d) War, hostilities, insurgency, Restricts the meaning of Force Majeure
terrorism, civil commotion
23(1) (e) Industrial action of workmen, strikes, Covers situation like sand/aggregate bans or
e
lock-outs, trade embargoes instances of source countries stopping supply
(domestic/foreign) of foreign workers to Singapore
23(1) (f)-
(h)
Architect’s instruction on variation of
works, PC or Provisional Sum and
Tim
f
Contingency Sums
o
23(1) (i) Failure of Employer to afford
n
possession to the Contractor in
o
accordance to Clause 10(2)
23(1) (j)
s i
C not having received from A within
n
reasonable time necessary drawing,
e
instructions, information etc
x t
23(1) (l) Shortage of labor due to domestic or Overlaps with or as an alternative to Clause
E
foreign government actions 23(1)(e)
23(1) (m) Shortage of materials due to Overlaps with or as an alternative to Clause

domestic or foreign government 23(1)(e); Holcim v Kwan Yong
actions
23(1) n) Suspension of work under Clause SOP Act S23and S26 on non-payment of
33(5) and 33(6) progress claims
©Derick Chow
e
GROUNDS FOR EXTENSION OF TIME REDAS CONTRACT (3rd EDITION)
im
T
16.1 16.1.1 Variation Including those related to exercising of PC Sums,
Provisional Sums and Contingency Sums
16.1.2 A force majeure event as
o f
See below
n
defined in Clause 18.2
i o
16.1.3 Any act of prevention, Cl. 9.1 - Delayed site possession
s
breach of contract, delay or Cl. 15.1 – Postponement of design or Works by
n
impediment caused by the Employer
Employer Cl. 15.2 – Suspension of the Works
te
Cl. 2.15 – Fossils and Antiquities
x
Cl. 7.1 – Opening of Works for Inspection
E
16.1.4 Any other ground for Clause 31.1.1 Suspension of Works by the
extension of time expressly Contactor for non-compliance with S23 and S26
mentioned in the Contract of the SOP Act
Documents
18.2 Definition of Force Majeure Event:
18.2.1 Exceptionally adverse

weather conditions
18.2.2 Fire, storm, high winds,
e
earthquake
m
18.2.3 War, hostilities, insurgency,
i
terrorism
18.2.4 Industrial action by
f T
o
workmen, strikes, embargoes
i o n
n s
x t e
E
©Derick Chow
GROUNDS FOR EXTENSION OF TIME PSSCOC 2014
e
m
14(2) Contractor must have taken all reasonable Proof of mitigation is required in the
i
steps and due diligence to avoid or reduce submission of the application for EOT
T
the impact on the Date of Completion
f
14(2) (a) Force Majeure Not a term of art and carries a very
o
restrictive meaning due to the extensive
n
coverage in Cl. 14(2) (b),(c),(d) & (f)
i o
Potential events not covered by other
s
sub-clauses are flooding, pandemics
n
(bird flu), power shutdown due to
terrorism, industrial accidents at power
te
generation plants etc
x
14(2) (b) Exceptionally adverse weather conditions Based on 10-year record on wet days
E
or severe haze kept by Meteorological Services Dept.
Anything in excess of the 10-year
average shall be considered as adverse
weather conditions
Severe haze- hazardous levels that

require closure of sites as notified by
NEA
14(2) (c) Industrial action of workmen, strikes, lock- Will cover events such as
outs, trade embargoes sand/aggregate bans and restrictions to
e
importing of foreign labor.
m
14(2) (d) One or more of the Excepted Risks as
i
provided in Cl. 25.2:
i. War/hostilies
f T
o
ii. Rebellion/insurrection
iii. Riot/commotion/disorder
n
iv. Ionizing radiations
o
v. Pressure waves
14(2) (e)
s i
Compliance with the requirements of any An example would be the requirement
n
laws, regulations, by-law or public of NEA to restrict working hours after
e
authority the award of the contract to 8am to
t
6pm each weekday and no work on
x
Saturdays and Sundays. Such
E
requirement was not anticipated when
the Contract was awarded.’
14(2) (f) Fire, storm, lightning, high winds etc Covers situation like sand/aggregate
bans or instances of source countries
stopping supply of foreign workers to
Singapore
14(2) (g) Ordering of test not provided for in the Potentially claimable for loss and
Contract expense
©Derick Chow
14(2) (h); S.O.’s instruction on variation of works, PC
m e
i
(i) or Provisional Sum and Contingency Sums
14(2) (j)
f
Failure of Employer to afford possession to
T
Potentially claimable for loss and
o
the Contractor in accordance to Clause expense
10(2)
on
14(2) (k) Suspension of Work as instructed by S.O. Potentially claimable for loss and
i
expense
s
14(2) (l) C not having received from S.O. within Potentially claimable for loss and
n
reasonable time necessary drawing, expense
te
instructions, information etc
x
14(2) (m) Acts or omissions of other contractors
E
engaged by the Employer
14(2) (n) Acts of prevention or breach of contract

by the Employer
14(2) (o) Adverse physical conditions under Cl.5.2
m e
Ti
o f
i o n
n s
x t e
E
©Derick Chow
GROUNDS (RELEVANT EVENTS) FOR EXTENSION OF TIME LTA CONTRACT
e
m
51.4 Relevant Events that may entitle C for
i
EOT:
f T
51.4(a) Loss or damage occasioned by any one or Major Force Majeure risks items are not
more of the “excepted risks” as defined in covered as Relevant Events. These
o
Cl. 20.2 include:
n
- Inclement weather, haze floods,
Cl.20.2: high winds, earthquake, storms,
i o
a. War, hostilities, terrorism, fire etc
s
insurrection, rebellion
- Riots, commotions, industry
n
b. Ionizing radiations lockouts, trade embargoes
te
affecting supply of materials and
c. Pressure waves
labor (e.g. sand ban is not a
x
d. Cause solely due to the use or relevant event)
E
occupation by the Authority of
any part of the Works
51.4(b) Compliance with an EI:
i. under Cl. 47 (Suspension) or 57
(Variation)
ii. Testing of any plant, works,
materials
51.4(c) C not having received in due time

necessary instructions, drawings,
e
decisions, information or consents
im
51.4(d) Delay in receipt of any necessary LTA projects involved many government
permission or approval to be given by any agencies such as URA, BCA, NEA, SPG,
T
statutory body EMA, HDB, FSSD etc.
51.4(e)
o
Carrying out by a statutory authority in
pursuance to its statutory obligations in
f For instance, delayed dismantling and
relocation of OG boxes by HDB’s term
n
relation to the Works or the failure to contractor at HDB car parks or relocation
o
carry out such works of water mains by PUB’s term
i
contractors
s
51.4(f) Failure of the Authority to give access to
n
Site as provided in Cl. 49
x t
51.4(g)
e Acts or omissions of other contractors

engaged by the Authority
E51.4(h)
51.4(i)
Delay caused by any act or omission of
the Authority; and
Any other ground for extension of time

express mentioned in these Conditions
©Derick Chow
Wet Days - Definition and Treatment
e
Practice Note 1:
T im
o f
i on
ns
x te
E
e
Average ‘wet’ days per month in Met JAN FEB MAR APR MAY JUN TOTAL
m
Service Records 9 4 6 4 3 3 ACTUAL
i
‘WET DAYS’
T
Actual ‘wet days’ 4 6 5 7 1 3
o f
Actual ‘wet days’ in excess of average -5 +2 -1 +3 -2 0 5
‘wet days’
i o n
s
Practive Note 2:
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Grounds for EOT:
n o
Potential issues with LTA EOT Clause:
i o
Common sources of delays for LTA’s MRT projects:
s
i. Diversions – Multiple agencies are involved; overlapping and at
n
times conflicting requirements between agencies for diversions
te
to drainage, pipe lines, street lighting, car parks etc
x
ii. Delays by SWCs/Other Contractors – Station coordination
E
work; coordination of ‘breaking through’ to connect two
section of tunnels under two different packages etc
iii. Exceptional ground conditions – For instance encountering
fractured rock during tunneling; difficulties with underpinning
for tunnels running under existing buildings; unanticipated
settlement to adjacent properties
69
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Grounds for EOT:
Ti
o
f
n
i o
iii. Shortages of Materials/Labor – These could be situations
s
experienced in the past such as bans on sand and granite
n
imports
e
iv. Inclement Weather/Severe Haze– With the climatic changes
t
and El Nino effects, heavy downpour on certain months and
x
dry spells causing haze in other months may not be improbable
E
v. Force Majeure (e,g. flooding, fire) – Freak floods are getting
more frequent as were the cases in Orchard Road and some
other parts of the city
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Grounds for EOT:
n
o
i o
s
 The first 2 situations are readily to be dealt with by applying Cl.
n
51.4 (e)/(f) and Cl. 51.4 (g) respectively but the last 4 situations
te
are less straight forward and will require:
x
o Straining the interpretation of the relevant EOT Clauses
E
to expanding the scope to cover the situations as Relevant
Events;
o Attempt to fit the events into the relevant EOT Clauses to
qualify as Relevant Events
71
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Grounds for EOT:
Ti
o
f
n
ISSUES: POSSIBLE RESPONSES:
i o
1. Exceptional difficult A. Passive measures‐
s
ground conditions insure the risks
n
2. Shortages of B. Active measures‐ frame
e
Materials/Labor the EOT applications to
t
fit them within the
x
3. Inclement
ambit of the EOT
Weather/Severe
E
Clauses (see table)
Haze–
4. Force Majeure (e,g.
flooding, fire)
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Contractor’s Obligations in EOT:
QUIZ:
n o
s i o
te n
E x
73
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1. Notification as a Condition Precedent
n
 Most standard forms have explicit requirements on notification
i o
 Typically, contractor must notify A/ER/S.O./E
s
 Upon occurrence of an event that could cause delay within a
n
prescribed period from the date of occurrence; and
t e
 Describe the activities affected and the impact
E x
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i o
 What is the significance of notification?
s
 Usually a condition precedent for EOT application &
n
consequences of non‐compliance can be grave;
te
 Failure to comply will lead to application being time‐barred or
x
out‐of‐time;
E
 Most standard forms also require notification to be served in a
particular way(s)
75
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i
T
o
f
n
 Rationale on the emphasis and importance placed on notification:
i o
 Highlight the impact to the A/ER/S.O./E so that timely reviews
s
can be made on mitigating the potential delays;
n
 If it is an action arising from the , e.g. ordering of variations,
e
A/ER/S.O./E can adjust the changes required to minimize the
t
impact on the construction timeline; and
x
 Similarly for neutral events such as Force Majeure events i.e.
E
earliest possible notification so facilitate responses by the
Employer to contain the impact
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n o
i o
 Does ‘constructive’ notice suffice?
s
‘Constructive’ means not
n
actual but implied
te
 Is it acceptable for purpose of compliance to assert that
x
‘constructive notice’ was given? Typical circumstances where
E
‘constructive notice’ was given include:
o Raised matter verbally with A/ER/S.O./E;
o Discussed at site meetings and recorded in meeting minutes
o Wrote an email to A/ER/S.O./E on the potential delay(s)
77
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f T
o
n
 EOT clauses are construed strictly, the three circumstances(meeting
o
minutes, verbal notification, email notification) mentioned in the
i
previous slide not likely to be acceptable; manner and form to serve
s
a notice or claim is prescribed in the contract;
n
 Typical requirements may include:
t e
o Stating the relevant clause(s) in contract that permits an
x
application for EOT with some details of the activities
E
affected;
o Notice made in writing and served by means of postal
service, courier service, personal delivery; email is not
normally included as an acceptable means of service
78
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n o
i o
 For instance, Cl. 74 of the LTA contract expressly excludes electronic
s
mail as a form of communication in writing:
te n
E x
79
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o f
n
 Defenses against non‐compliance with notification as a CP:
i o
 Waiver/promissory estoppel – Lian Soon v Guan Qian
s
 C was informed on the intent to grant EOT – SIA Cl.23(2)
n
 Acts of prevention when C is in culpable delay – SIA
t e
Cl.24(3)(a); PSSCOC Cl. 16.4
E x
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n o
i o
 Waiver/Promissory Estoppel:
s
 Employer’s own voluntary waiver or abandonment of procedural
n
requirements:
te
o Lian Soon Construction v Guan Qian Realty
x
 A did not act in accordance to procedural requirements
E
in the contract for EOT;
 Release of condition precedent;
 Court held C defaulted on giving timely notifications
but E’s right to enforce right was waived due to A’s
omission/inaction/fault
81
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n
 Exception 1: Waiver/Promissory Estoppel
i o
 Promissory Estoppel
s
o To establish promissory estoppel, the following ingredients
n
are necessary:
e
 There must be representation from A/E to C;
xt  C relied on the representation to his detriment;
E
 Unconsionable for A/E to go back on his/her promise
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n o
i o
s
te n
o It is an equitable remedy as opposed to common law
remedy
x
 ‘Equitable’ remedy is dispensed at the discretion of the
E
court & not a right per se;
 ‘Common law’ remedy on the other hand is an
enforceable right that can be pursued by the claimant
83
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o f
n
i o
s
o Common law precedents where P.E. was used include the
n
two Australian cases below:
e
 Walton Stores v Maher (1998)
xt  Abigroup Contractors v Sydney Catchment
E
Authority (2005)
o In both instances, court prevented the promissor from
resiling the promise made to the C.
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n o
i o
 Exception 2: Clause 23(2) of the SIA Contract:
s
‘It shall be a condition precedent to an extension of
n
time....(unless the Architect has already informed the
te
Contractor of his willingness to grant an extension of time)’
x
Clause 23(2) provides an express right to claim EOT despite not
complying with the condition precedent for notification, if it
E
can be established that A had indeed promised to grant EOT.
85
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n
 Exception 3:
i o
 Clause 24(3)(a) of the SIA Contract:
s
‘If C is continuing work subsequent to the issue of the Delay
n
Certificate, A gives instructions …. that would entitle C to EOT,
e
A shall as soon as possible grant C EOT in a certificate known
t
as “Termination of Delay Certificate”
x
 Clause 16.4 of the PSSCOC Contract:
E
‘If C failed to complete the Works by Time of Completion and the
execution of the Works thereafter is delayed by any events set
out in Clause 14.2(g) to (n) inclusive, S.O. shall grant EOT”
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Basic Concepts:
n
5. Types of Delays
o
i o
ns
NOT APPARENT THAT CONCEPT OF CONCURRENT DELAY IS
te
BEING INCORPORATED IN THE SIA CONTRACT
x
1. LD will not cease immediately even with EOT
E
2. Neutral events /delays will not entitle C to EOT
CCD Extended CCD
Issuance of TDC
LD Payable Red line: Employer’s delays 87
m e
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o
f
n
 Exception 3:
i o
Note: No notification and application required from C.
s
However, note that Cl. 24(3)(a) SIA and Cl. 16.4 PSSCOC does
not cover neutral/relief events such as Force Majeure Events.
t e n
E x
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ϯͬϴͬϮϬϭϵ
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x te
E
89
m e
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o f
1.NotificationasaConditionPrecedent(OtherissuesǦ SIA)
n
SIAContractClause23.2:Notetextinred
i o
͚/ƚ ƐŚĂůů ďĞ Ă ĐŽŶĚŝƚŝŽŶ ƉƌĞĐĞĚĞŶƚ ƚŽ ĂŶ ĞǆƚĞŶƐŝŽŶ ďǇ ƚŚĞ ĂƌĐŚŝƚĞĐƚ ƵŶĚĞƌ
s
ĂŶǇ ƉƌŽǀŝƐŝŽŶ ŽĨ ƚŚŝƐ ŽŶƚƌĂĐƚ ŝŶĐůƵĚŝŶŐ ƚŚĞ ƉƌĞƐĞŶƚ ĐůĂƵƐĞ ;ƵŶůĞƐƐ ƚŚĞ
n
ĂƌĐŚŝƚĞĐƚ ŚĂƐ ĂůƌĞĂĚǇ ŝŶĨŽƌŵĞĚ ƚŚĞ ŽŶƚƌĂĐƚŽƌ ŽĨ ŚŝƐ ǁŝůůŝŶŐŶĞƐƐ ƚŽ ŐƌĂŶƚ
ĞǆƚĞŶƐŝŽŶ ŽĨ ƚŝŵĞͿ ƚŚĂƚ ƚŚĞ ŽŶƚƌĂĐƚŽƌ ƐŚĂůů ǁŝƚŚŝŶ Ϯϴ ĚĂǇƐ ŶŽƚŝĨǇ ƚŚĞ
t e
ĂƌĐŚŝƚĞĐƚ ŝŶ ǁƌŝƚŝŶŐ ŽĨ ĂŶǇ ĞǀĞŶƚ Žƌ ĚŝƌĞĐƚŝŽŶ Žƌ ŝŶƐƚƌƵĐƚŝŽŶ ǁŚŝĐŚ ŚĞ
ĐŽŶƐŝĚĞƌ ĞŶƚŝƚůĞƐ Śŝŵ ƚŽ ĂŶ ĞǆƚĞŶƐŝŽŶ ŽĨ ƚŝŵĞ͕ ƚŽŐĞƚŚĞƌ ǁŝƚŚ Ă ƐŚŽƌƚ
x
ƐƚĂƚĞŵĞŶƚ ŽĨ ƚŚĞ ƌĞĂƐŽŶƐ ǁŚǇ ĚĞůĂǇ ƚŽ ĐŽŵƉůĞƚŝŽŶ ǁŝůů ƌĞƐƵůƚ͘ hƉŽŶ
E
ƌĞĐĞŝƉƚ ŽĨ ƐƵĐŚ ŶŽƚŝĨŝĐĂƚŝŽŶ ƚŚĞ ĂƌĐŚŝƚĞĐƚ ƐŚĂůů ŝŶĨŽƌŵ ƚŚĞ ŽŶƚƌĂĐƚŽƌ ŝŶ
ǁƌŝƚŝŶŐ ǁŝƚŚŝŶ ŽŶĞ ŵŽŶƚŚ ŽĨ ŝƚƐ ƌĞĐĞŝƉƚ ǁŚĞƚŚĞƌ Žƌ ŶŽƚ ŚĞ ĐŽŶƐŝĚĞƌƐ ƚŚĞ
ĞǀĞŶƚ Žƌ ŝŶƐƚƌƵĐƚŝŽŶ Žƌ ĚŝƌĞĐƚŝŽŶ ŝŶ ƉƌŝŶĐŝƉůĞ ĞŶƚŝƚůĞƐ ƚŚĞ ŽŶƚƌĂĐƚŽƌ ƚŽ ĂŶ
ĞǆƚĞŶƐŝŽŶ ŽĨ ƚŝŵĞ͛͘
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EXTENSION OF TIME
ns
x t e
SAMPLE EOT NOTIFCATION
m e
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E
e
Let Ref bcaa/eot/seminar/2016
im
3 Nov 2016
EOT Pte Ltd

No.3 New Road
f T
o
#08-01 New Building
S(112233)
i on
s
Attention : Peter McEnroe
te n
Dear Sir,
x
RE: ALTERATION & ADDITIONS WORKS TO NEWHEALTH HOSPITAL
NOTIFICATION OF POTENTIAL DELAY TO TIME FOR COMPLETION
E
In compliance with Clause 16.2.1 of the REDAS Conditions of Contract, we hereby notify you
of the following circumstances that, in our opinion, could potentially result in a delay to the
timeous completion of the Level 1 Works
We place on record that space constraints and clashes of the services to be installed within
the allotted ceiling space will result in us not being able to achieve the programmed
completion date (the ‘Delaying Event’).
This also serves as notification in terms of Clause 29.1 that any resultant delay could result in
us requiring reimbursement for additional time related costs incurred.
As soon as practicable, we will submit full details for the Employer’s Representative
e
assessment. In the interim, we request that necessary action be taken to resolve this Delaying
m
Event, in order that any delay can be mitigated or avoided.
Ti
This event has a continuing effect such that full details cannot be provided. Further and more
detailed particulars shall be submitted upon cessation of the Delaying Event. We further
f
request that in accordance with Clause 17 the Employer’s Representative make an in-
o
principle determination of extension of time.
n
Yours faithfully,
s i o
n
Jimmy Tanner
Project Manager
t e
Old Contractor Pte Ltd
E x
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1. Notification as a Condition Precedent (Other issues‐ SIA)
i o
 “Upon receipt of such notification the architect shall inform the
s
Contractor in writing within one month of its receipt..”
n
 What if the A failed to notify C of the decision within one month?
te
o Is this requirement a condition precedent in the validity of A’s
x
decision in an EOT application?
E
o Will such a non‐compliance invalidate A’s decision?
 Issue was examined by the courts in Assoland v Malayan Credit
and Aoki Corp v Lippoland
91
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f
n
o
s i
 Assoland Construction v Malayan Credit Properties
n
o Court held that the failure of the architect in observing the
e
procedural requirements in the contract had invalidated the
t
delay certificate;
x
o As the extension of time was not validly granted, no liquidated
E
damages could be recovered for delays occasioned by the
contractor.
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i o
s
n
 Aoki Corp v Lippoland (Singapore) Pte Ltd
te
o Court took a different view from that held in Assoland;
procedural requirement not a condition precedent
x
o Rationale for this decision was that:
E
o Timely notification by C to A/E for EOT application must be a
condition precedent so that A/E can take the necessary
measures to contain the excusable delays (delays not arising
from C’s fault).
o No such consideration for A’s procedural requirement to
notify C within a month.
93
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n
o
i
 Aoki Corp v Lippoland (Singapore) Pte Ltd
s
Rationale for this decision was that:
n
o
e
o Timely notification by C to A/E for EOT application must be a
t
condition precedent so that A/E can take the necessary
x
measures to contain the excusable delays (delays not arising
from C’s fault).
E 94
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Other issues‐ SIA Contract: Duty of the Architect
i o
Hiap Hong & Company Pte Ltd v Hong Huat Development
s
Civil Appeal No. 104; Court of Appeal
te n
E x
95
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i
T
o f
n
o
s i
t e n
E x
96
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f
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i o
s
te n
E x
Comment: This would imply that the Architect could be held
solely liable to the Contractor. 97
m e
TIMELINE TO GRANT EOT
Ti
o f
i o n
n s
x t e
E 98
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f
n o
1. Notification as a Condition Precedent (Issues‐REDAS)
i o
 Cl. 16.2 – It shall be a CP to an EOT that the C’s application shall be
s
made within 28 days after the cause of any delay has arisen together
with full details…
te n
Note: The above entails a requirement not only to notify within 28 days
but to submit an application as well in the notification.
x
 Cl. 17‐ …. ER upon receipt of application in ‘writing’ inform C whether
E
C is entitled to EOT. Cl.1.1.35 defines ‘writing’ as hand‐written, type‐
written and printed communications including telex and fascimile.
Note: Email, SMS, WhatsApp etc are not included and may not be
accepted as applications in writing.
99
m e
i
T
o f
1. Notification as a Condition Precedent (Issues‐PSSCOC)
n
 Cl. 14.3– If C is in the opinion that the progress will be or has been
o
delayed, C shall notify S.O. within 60 days. If in C’s opinion that the
i
event is one that entitles to EOT, C should shall set out in the notice
s
with the appropriate Contract Clauses and reasons. Both notice and
further information must be submitted within 60 day period set out
n
above shall be conditions precedent to any entitlement to an EOT
t e
Note: Requirement to notify irrespective as to whether it is a relevant
x
event; justifications to be provided within 60 days in compliance with
E
CP for EOT entitlement
100
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f
n o
1. Notification as a Condition Precedent (Issues‐LTA)
i o
 Cl. 51.2.1– If it becomes reasonably apparent that the progress of the
s
Works or any Section or part thereof is being or is likely to be delayed,
C shall forthwith give written notice
te n
Note: Forthwith would mean immediately upon delay to progress
becomes apparent. Clause 51.2.4 states that failure to provide notice
x
may prevent Engineer to assess an EOT application – effectively notice is
a CP
E
101
m e
i
f T
o
2. Notice must specify the cause
n
 Common requirement requiring C to provide in the first instance:
i o
 Contract references enabling C to claim EOT;
s
 Identify the relevant events;
n
 Provide details of the delay;
t e
 Date where delay became apparent
E x
102
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f
n
o
i o
 Common requirement requiring C to provide subsequent to the first
s
notification:
n
 Impact on the construction program
te
 Mitigation efforts to contain delay
x
 Quantum of extension required
E
 Any other relevant information that can aid the A or S.O. to
evaluate the application
103
m e
i
T
o
f
n
 What if C did not provide ‘sufficient’ information:
i o
 SIA Contract – Architect not obliged to make an
s
assessment for an EOT application if information is
deemed not ‘sufficient’
n
 REDAS Contract – ER not required to make an
t e
assessment if information received is deemed
x
insufficient
E 104
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T i
f
n
o
i o
s
 SIA Contract Clause 23.4:
te n ‘The Architect may in writing request the Contractor for sufficient
x
explanation, information, particulars or materials as will enable him to
estimate the period of extension of time to be granted to the Contractor.
E
The Contractor shall within 28 days after receipt of such request furnish
the Architect the information, particulars or materials requested. The
Architect shall not be required under Clause 23.3 of these Conditions to
decide and estimate the period of extension of time to be granted to the
Contractor unless he is in receipt of the sufficient explanation,
information, particulars or materials requested’.
105
m e
i
T
o
f
n
i o
 REDAS Contract Clause 16.2.2:
n s
‘The ..Contractor to provide within 14 days or such other period as the ER
t e
may require, such further explanation, information, particulars or
materials as he deems sufficient to enable him to make the said decision.
x
The ER is not required to make any decision unless he is in receipt of the
E
explanation, information, particulars or materials requested’
106
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f
n
o
i o
s
 LTA Contract – Engineer shall make assessment
n
insofar as he is not prevented or prejudiced in doing so
te
because of insufficient information; not entirely fatal if
Contractor fails to comply
x
 PSSCOC 2014 – If the Contactor shall not have
E
provided the S.O. with sufficient information, S.O.
shall decide based on information available to him/her.
107
m e
i
T
o
f
n
i o
 PSSOC Contract Clause 14.3.4:
s
‘..if the Contractor shall not have provided the Superintending
n
Officer with sufficient information to enable him to decide the
Contractor’s application, the Superintending Officer may
t e
nevertheless make in writing to the Contractor such extension of
time of the whole or any phase or part of the Works (as the case may
x
be) as may in his opinion appear to be fair, reasonable and necessary
E
for completion of the Works on the information available to him,
taking into account all the matters set out in Clause 14.3.3.’
108
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T i
f
n
o
i o
s
 LTA Contract Clause 51.2.4:
te n
E x
Contractor’s failure not fatal to
granting of EOT
109
m e
i
EOT PROCEDURES – PSSCOC
f T
o
The contract states within Clause 14 [Time for Completion] at 14.2
n
that:
i o
“Provided always that the Contractor shall not be entitled to any
s
extension of time where the instructions, or acts of the Employer or the
n
Superintending Officer are necessitated by or intended to cure any
default of or breach of Contract by the Contractor and such
t e
disentitlement shall not set the Time for Completion at large.”
E x
110
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SIA Contract
T i
o f
i on
ns
x te
E
111
m e
i
EOT PROCEDURES –REDAS
f T
N
n o
o
Responded
i
within 14 days
s
N
Y
n
Sufficient
info?
t e
Y
E x
112
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T
EOT PROCEDURES – PSSCOC
i
o f
i on
ns
x te
E
113
m e
i
LTA Contract
f T
n o
s i o
t e n
E x
114
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T i
o f
i on
ns 3. Application of EOT concepts &
te
introduction to DAT
E x
115
m e
Ti
o f
i o n
Delay Analysis Techniques
‐RETROSPECTIVE TECHNIQUES‐
ns
x t e
E 116
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f
Delay Analysis Approaches:
n o
1. Methods, Considerations of Use & Outcomes
s i o
 Commonly used techniques include:
n
 As‐Planned vs As‐Built
te
 As‐Planned But For
x
 Collapsed As‐Built
E
 Window Analysis/Snap Shot
117
m e
Delay Analysis Approaches:
Ti
o f
1. Methods, Considerations of use & Outcomes
n
 Considerations of use & Outcomes
i o
 Different techniques require different level of manpower
s
resources + quality of data;
e n
 The outcomes are not consistent, the more sophisticated ones
t
tend to be more reflective of the actual conditions but are highly
x
involved;
E
 From the contracts administrator perspective and being involved
in managing EOT claims, an appreciation of the above is
beneficial even though the actual analysis is often done by
planning engineers.
118
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T i
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Delay Analysis Techniques:
n
2. Prevalence of usage
o
s i o
 Common hurdles in using DAT include:
n
 Lack of adequate project information/delaying events;
te
 Lack of regular updating of construction program;
x
 Require skills and experience to carry out an proper delay
E
analysis
 Relatively high cost to update and revise construction program &
to conduct delay analysis
 Manpower intensive and time‐consuming
119
m e
As-Planned v As-Built
Ti
3. As‐Planned vs As‐Built
o f
n
 Most preferred method of analysis due to its relative simplicity of
o
comparing as‐planned schedule with the as‐built schedule to ascertain
i
delay.
n s
 No allowance made for mitigation of delays
t e
 Assuming baseline’s schedule logic holds
x
 Failing to identify critical paths
E
 Minimal manpower resource + time + effort
120
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s i o
te n
E x
121
m e
Ti
o f
i o n
n s
x t e
E 122
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f
n
 Outcome of analysis:
o
i o
∑ED = 21 ∑CD = 12 ∑Net project delay = 11
s
 Concurrent delay due to both parties is 12 days (lower of the
n
two delays)
te
 Net project delays (employer) = 21‐12 =9 days
x
 Net project delays (contractor)= 11‐9 =2 days
E
123
m e
As-Planned But-for
Ti
o f
 Technique inserts all delays attributed to the contractor or the
n
employer to compute the delay caused by the other party:
i o
 ‘But for employer’: ‐ contractor’s delay is derived i.e. ED is a
s
independent variable
[CD]= [ABS]‐ [ED]
t e n  ‘But for contractor’: ‐ Employer’s delay is derived i.e. DC is a
independent variable
x
[ED]= [ABS]‐ [DC]
E
Where:
[DC] = [Delays by contractor]
[ED] = [Delays by employers]
[ABS] = [As‐built schedule]
124
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T i
o f
As-Planned But-for E’s Delays
i on
ns
x te
E
125
m e
i
As-Planned But-for C’s Delays
f T
n o
s i o
t e n
E x
126
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T i
f
Collapsed As-Built
n o
o
 Method includes all delays, both attributable to C+ E,
i
encountered.
ns
 Delays are removed to create a ‘collapsed’ as‐built schedule to
present how the project would have progressed without the
te
delays
x
 Requires a good as‐built for analysis
E
 Relatively low on cost, effort + time
 Relatively accurate and reliable as compared to ‘As‐Built vs As‐
Planned’ & ‘As‐Planned But For’ methods
127
m e
As-Built Schedule
Ti
o f
i o n
n s
x t e
E 128
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T i
Collapsed As-Built
o f
i on
ns
x te
E
129
m e
Ti
f
Collapsed As-Built
n o
s i o
t e n
E x
130
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T i
f
Windows/Snap Shot Analysis
n o
 Method is also known a ‘Snap Shot Analysis’ or Contemporaneous
i o
Period Analysis’
s
 One of the more credible methods of analysis
te n
 Project duration is divided into ‘windows’ of time
x
 Delays are recorded as they arise, each captured within a window or
snap shot
E
 Reliable and accurate
 Drawback‐ time & resource consuming + costly to maintain
131
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Ti
o f
i o n
n s
x t e
E 132
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f
n o
s i o
te n
E x
133
m e
Ti
o f
i o n
n s
x t e
E 134
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T i
f
n o
s i o
te n
E x
135
m e
Ti
o f
n
Window Project Delay Employer’s Delay Contractor’s Delay
i o
1 1 0 1
s
2 2 0 1
n
3 4 2 0
e
4 9 3 2
xt
5 11 2 0
Total 7 4
E 136
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T i
f
Differences in outcome
n o
i o
Delay Analysis Approach Contractor’s Delay Employer’s Delay
s
As Planned vs As Built 2 9
n
As‐Planned But For:
te
a)But for Contractor 7 4
b)But for Employer 2 9
E x Collapsed As‐Built
Window analysis
5
4
6
7
137
m e
i
Differences in effort/outcome
T
o f
i o n
n s
x t e
E 138
69
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T i
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i on
EXTENSION OF TIME
ns
te
CASE STUDY 1
E x
m e
Ti
o f
i on
ns
x t e
E
m e
T i
o f
i on
Jun-17
ns Jul-17 Aug-17 Sep-17
te
1-Jun
2-Jun
3-Jun
4-Jun
5-Jun
6-Jun
7-Jun
8-Jun
9-Jun
10-Jun
11-Jun
12-Jun
13-Jun
14-Jun
15-Jun
16-Jun
17-Jun
18-Jun
19-Jun
20-Jun
21-Jun
22-Jun
23-Jun
24-Jun
25-Jun
26-Jun
27-Jun
28-Jun
29-Jun
30-Jun
1-Sep
2-Sep
3-Sep
4-Sep
5-Sep
6-Sep
7-Sep
8-Sep
9-Sep
10-Sep
11-Sep
12-Sep
13-Sep
14-Sep
15-Sep
16-Sep
17-Sep
18-Sep
19-Sep
20-Sep
21-Sep
22-Sep
23-Sep
24-Sep
25-Sep
26-Sep
27-Sep
28-Sep
29-Sep
30-Sep
1-Jul
2-Jul
3-Jul
4-Jul
5-Jul
6-Jul
7-Jul
8-Jul
9-Jul
10-Jul
11-Jul
12-Jul
13-Jul
14-Jul
15-Jul
16-Jul
17-Jul
18-Jul
19-Jul
20-Jul
21-Jul
22-Jul
23-Jul
24-Jul
25-Jul
26-Jul
27-Jul
28-Jul
29-Jul
30-Jul
31-Jul
1-Aug
2-Aug
3-Aug
4-Aug
5-Aug
6-Aug
7-Aug
8-Aug
9-Aug
10-Aug
11-Aug
12-Aug
13-Aug
14-Aug
15-Aug
16-Aug
17-Aug
18-Aug
19-Aug
20-Aug
21-Aug
22-Aug
23-Aug
24-Aug
25-Aug
26-Aug
27-Aug
28-Aug
29-Aug
30-Aug
31-Aug
x
ST01 (RSP (C&S) 1 2 3 4 5 6 7
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77
E
ST22 & ST23 (C&S) 8 9 10 11 12 13
14
15
RSP (Arch)
F.A.P 16 17 18 19 20 21 22 23 24 25 26
ST01
ST22/23
ST02 submission in O
the 1st instance BCA's WD - M
URA's clearance BCA's ultimatum & no
P
ST22 submission in extension to be granted-
the 1st instance Withdraw ST22 L
E
DELAY TO PROJECT COMPLETION CAUSED BY ST01 T
BCA's NOA FOR ST02
I
O
N
BCA's WD - URA's
clearance ST23
Submit ST23 to
replace ST22 BCA's NOA
DELAY TO PROJECT COMPLETION CAUSED BY ST22/23 for ST23
e
1 6 June'17 - Submission CUMULATIVE DELAY TO PROJECT COMPLETION
m
2 19 June'17 1st WD
i
3 28 Jun'17 Reply to 1st WD
4 11 July'17 - 2nd WD
5 25 July'17 - Reply & 2nd WD
T
6 15 Aug'17 - 3rd WD (Pending UPA)
7 30 Aug'17 - NOA
8 4 July'17 - ST22 Submission
9 12 July'17 - 1st WD (Pending URA / Clearance)
f
10 25 July'17 - Request Extension
11 28 Aug'17 - Requested Withdrawal
12 30 Au'17 - ST23 Submmission
o
13 18 Sep'17 - ST23 NOA
14 3 Aug'17 - 4_Basement / WP
15 29 Aug'17 - 2_Basement / PP
16 19 July'17 / Mobilaization / 1st Service Commence
n
17 22 July'17 1st Boring Rig
18 29 July'17 TC-2 / Bored Pile (4nos)
19 3 Aug'17 TC-2 / Bored Pile (4nos)
o
20 14 Aug'17 2nd Rig Mobilization / 1st Bore PileCast (PC24-8)
21 16 Aug'17 - PC25-2
i
22 18 Aug'17 - PC20-1
23 19 Aug'17 - PC3-1
24 25 Aug'17 - PC24-4
s
25 29 Aug'17 - PC25-3
26 16 Sept'17 - 3rd Boring Rig
t e n
E x
e
Dear Sir/Mdm,
m
PROPOSED 28 STOREY OFFICE CUM WAREHOUSE AT LORONG SENANG, LOT 123 MK 567
i
NOTIFICATION OF DELAY ISSUE PURSUANT TO CLAUSE 23(2) – DETAILS OF EVENTS AND
T
QUANTUM
f
We refer to our letters ABC, and DEF, your reply GHI and the meeting on 24 Oct 2017 on the particulars of the
o
relevant events, extent of delays and quantum for extension of time needed.
n
CHRONOLOGY OF EVENTS
i o
In our initial notification of delay, we had highlighted that the concerns of potential delays caused by the withholding
s
of the issuance of the Notice of Approval (‘NOA’) to ST01 (ERSS, CBP Wall and Temporary Work), ST02 (ERSS
Strutting to CBP Wall & Working Platform) and ST22 (Foundation Design) by the Building and Construction
n
Authority (‘BCA’). In the subsequent delay analyses, it was found that only delays to the processing of the ST01 and
te
ST22 submissions had materially affected the regular progress of the Works. In addition, the underlying cause for
the delay in the issuance of the NOA for ST02 and ST22/ST223 is a relevant ground for the application for
x
extension of time.
E
The evolution of delays in processing ST02 and ST22/ST23 submissions is as follows:
ST02:
th
1. ST01 was submitted on the 6 June 2017. Subsequent to this submission, BCA issued three Written
Directions (‘WD’). The first two WDs were on regularization of technical requirements and were duly
complied with. The third one which was issued on 15 Aug 2017 highlighted the fact that the NOA had to
be withheld until the Urban Redevelopment Authority (‘URA’) had given its clearance on the planning
approval.
th
2. URA had granted the Provisional Permission for the 2 basement proposal on the 19 August 2017.
th
3. The NOA was only granted by BCA on the 30 August 2017.
e
ST22:
m
th th
1. ST22 was submitted on the 04 July 2017. BCA replied with a WD on 12 July 2017 stating the pre-
i
requisite of securing URA’s clearance on the planning approval.
T
th
2. An extension was granted by BCA on 25 July 2017 for ST22. While awaiting for the issuance of the
f
Provisional Permission from URA on the 2 basement proposal.
o
3. BCA wrote to our civil and structural engineering consultant stating that ST22 submission could not be
n
held in abeyance any further. No further extension shall be granted after 28 August 2017. BCA had advised
o
that if withdrawal was not made on or before 28 August 2017 and URA’s Provisional Permission could not
i
be granted by then, ST22 would be rejected. Rejection was not an option as it might diminish the prestige
s
of the project which is located right in the city center and place the project team in less than favorable light
n
4. ST22 was withdrawn on 28 August 2017 and in its place ST23 was submitted.
t e
5. BCA granted the NOA for ST23 on the 18 September 2017.
x
It is clear from the facts set out above that if not for the delay in URA’s issuance of the Provisional Permission, the
E
NOAs for ST01 and ST22 (predecessor of ST23) would not be correspondingly withheld.
EXTENT OF DELAYS
The extent of delays occasioned on issuance of the NOAs for ST01 and ST22 are presented in the construction
programme and the chart enclosed:
e
1. The NOA for ST01 could have been granted by BCA within a week after the submission of the reply to
nd
the 2 WD i.e. end of July 2017. However, the NOA could not be issued until URA had issued the
m
th
Provisional Permission. The NOA for ST01 was only issued on the 30 August 2017.
T i
th
2. The NOA for ST22/ST23 could have been issued on the 12 July 2017 when the WD was issued citing
the absence of URA’s Provisional Permission as the reason for withholding the NOA. The protracted
f
suspension in the processing of the ST22 submission had resulted in its withdrawal and submission of the
o
replacement ST23. The NOA for ST 23 was only granted on 18 September 2017.
n
For the avoidance of doubt, ST01 and ST22/ST23 are concurrent delays and only the nett impact is taken into
o
consideration for the. As the impact of the delay occasioned to ST01 is being subsumed within the impact of delay
i
of the delay occasioned to ST22/ST23, the effective delay to the Works is sixty eight (68) days.
s
MITIGATION EFFORTS
n
Notwithstanding the encumbrances that that we had to face for ST22/ ST23 submissions, we had taken the liberty
te
to mobilize three (3) piling rigs between 22 July 2017 and 16 September 2017 for the sole purpose of containing the
effects of delay. Where practicable to do so, we had carried out bored piling works to locations tabulated below:
E x
Date Activity Remarks
st
19 July 017 Deployment of 1 service crane
st
22 July 2017 Mobilization of 1 boring rig
29 July 2017 Installation of bored piles- TC2 4 nos.
03 Aug 2017 Installation of bored piles- TC2 4nos.
ndt st
14 Aug 2017 Mobilization of 2 boring rig/1 bored pile cast (PC24-8)
16 Aug 2017 Installation of bored piles- PC25-2
rd
16 Sept 2017 Mobilization of 3 boring rig
e
DURATION OF EXTENSION SOUGHT
m
In consideration of the cogent reasons and verifiable facts on the extent of the delays to the regular progress of the
i
Works, the Architect’s determination is sought pursuant to Clause 23(3) to extend the Date of Completion for a
T
duration of sixty eight (68) days.
Yours faithfully,
o f
i o n
n s
x t e
E
e
ADDITIONAL NOTES TO CASE STUDY 1:
m
Contractor’s reply to EOT granted:
T i
o f
i on
ns
x te
E
Architect’s Direction subsequent to Contractor’s Reply:
m e
Ti
o f
i o n
s
Discussion:
e n
1. Critique the Architect’s Direction in terms of validity and appropriateness.
x t
E 2. What response that you will recommend to the Contractor.
4/11/2019
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T i
o f
TIME IMPACT ANALYSIS (TIA)
i on
ns
x t e
E
141
m e
T i
o f
i o n
n s
x t e
E 142
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T i
o f
i on
ns
x t e
E
143
m e
T i
o f
i o n
n s
x t e
E 144
72
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m e
T i
o f
i on
ns 4. Other related EOT
te
concepts/practices
E x
145
m e
Ti
o f
i o n
s
Acceleration
‐A Concept Inextricably Linked to EOT‐
t e n
E x
146
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m e
T i
o f
i on
ns Good Practices for EOT Applications
x te
E
147
m e
Good Practices for EOT Applications:
Ti
o f
Problems responsible for sub‐optimal EOT settlement
o n
 Key issues include:
i
s
 Lack of timely notifications
n
 In adequate project records
e
 Planning & programming
xt
 Lack of resources
E 148
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m e
T i
f
n o
The success of establishing an EOT claim is dependent to a large extent on
i o
the quality and adequacy of information available. The following are key
s
considerations in initiating and managing EOT claims:
n
1. Adequate response system
te
2. Appropriate Identification of delaying events
x
3. Timely notification
E
4. Reliable program
5. Document control & record keeping (see sample templates)
149
m e
i
T
o f
i o n
n s
x t e
E 150
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T i
f
n o
s i o
te n
E x
151
m e
Ti
o f
n
CASE STUDY 2:
o
Application of Extension of Time
s i
t e n
E x
152
76
e
Xx xx xx
m
Our ref: xxxx
T i
Boris J. Architects
f
Attention: Mr. J.U. Kim
o
Dear Sir,
n
PROPOSED NEW ERECTION OF 12 STOREY MIXED DEVELOPMENT AT 22ND ROBIN HOOD AVENUE
i o
BCA HOUSEHOLD SHELTER – EXTENSION OF TIME
s
n
We refer to your letters dated 07 March 2019 and dated 22 March 2019 on the delay to the approval
te
for the Household Shelter (‘Shelter’).
x
We are pleased to inform you that BCA had granted approval on 17 May 2019 for Shelter structural
submission. With the cessation of the delaying event, we have now completed the assessment on the
E
quantum of the delay on the Date of Completion. The enclosed chart (see Annex 1) summarises the
relevant key events that impact on the Completion Date:
Employer’s Delay Events:
i. The scheduled date to secure BCA’s approval for the Shelter building plans was mid
November 2018. The initial approval for Shelter building plans was granted by BCA on
22 Jan 2019.
ii. The scheduled structural plan approval from BCA was expected to be secured on 15
Jan 2019. However, this could not be achieved because the building plan approval was
delayed.
e
iii. BCA issued a Written Direction for CS01 on 19 Feb 2019 because of an apparent non-
compliance of the Shelter building plans.
im
iv. An Option 2 was proposed to the Shelter building plans to secure the approval of BCA
on the 7 March 2019.
T
v. SCDF approved the Option 2 proposal on the 4 April 2019.
f
vi. The Structural QP made the CS04 submission on 7 May 2019 and approval was
o
granted on 17 May 2019.
n
The above delay events shifted the TOP date from 14 June 2019 to 13 Oct 2019 i.e. 121 days beyond
o
the scheduled TOP date.
s
Contractor’s Delay Events:
i
n
i. Completion for fabrication of PPVC carcass was deferred from 31 Jan 2019 to 18 Mar
t e
2019; and
x
ii. Launching was deferred from 19 Jan 2019 to 30 May 2019
E
The above delay events shifted the TOP date from 14 June 2019 to 01 Oct 2019 i.e. 109 days beyond
the scheduled TOP date.
As there is a concurrency of delays, the extension of time shall be addressed based on the guidelines
provided in the Disruption and Disruption Protocol published by the Society of Construction Law and
prevailing precedents. In the present circumstances, the duration for extension of time shall be
equivalent to the Employer’s delay. The Disruption and Disruption Protocol also provides that the
duration of Employer’s delay in excess of the Contractor’s delay shall attract prolongation costs.
e
However, in the spirit of collaboration and partnership, we are amenable to waive recovery of
prolongation costs.
im
We look forward to an expeditious regularisation of the granting of the extension of time to enable us
T
to map out the way forward in the scheduling and deployment of our resources to secure timely
f
completion.
n o
s i o
te n
Yours faithfully,
E x
Mr. Donald Dumb
Project Director
Encl:
Annex 1: Chart summarising the delays

Annex 2: Updated Construction Programme
m e
Ti
o f
i o n
n s
x t e
E
2018 2019 2020
November December January February March April May June
WK1 WK2 WK3 WK4 WK1 WK2 WK3 WK4 WK1 WK2 WK3 WK4 WK1 WK2 WK3 WK4 WK1 WK2 WK3 WK4 WK1 WK2 WK3 WK4 WK1 WK2 WK3 WK4 WK1 WK2 WK3 WK4
e
DELAYS ARISING FROM AUTHORITIES' APPROVAL (EXCUSABLE AND COMPENSABLE DELAYS) ONLY
15 Jan 2019 Structural

16 Nov 2018 HS bldg m
14 Jun 2020
plan NOA
Plan NOA
i
TOP
Scheduled
SCDF Approval for Option

f
NOA HS Bldg Plan
MDA's Option 2
22 Jan 2019
7 Mar 2019
4 Apr 2019
MDA
o
Actual
Consultation with BCA

Submission by TWA
Meeting with BCA
CS04 submission
BCA NOA CS04

27 May 2019
14 May 2019
25 Mar 2019
o 19 Feb 2019
13 Oct 2020
7 May 2019
4 Mar 2019
CS01 WD
TOP
i
TWA
s
Employer's Delay: 121d
n
DELAYS ARISING FROM SA PPVC PRODUCTION NAD LAUNCHING DELAYS (CULPABLE DELAYS) ONLY
te
31 Jan 2019 PPVC
Launching at L5
19 Mar 2019
Production
Scheduled
x PPVC Production
Launching at L5
30 May 2019
18 Mar 2019
01 Oct 2020
E
TOP
Scheduled
Contractor's Delay: 109d
IMPACT OF DELAYS ARISING FROM LATE APPROVALS FROM AUTHORITIES AND PPVC
PRODUCTION
Source of Delay Sch TOP Forecast TOP Date Duration of

Date Delay Nature of Delay
Delay in HS
Employer's Delay 14-Jun-20 13-Oct-20 121
approval
Delay in PPVC
Contractor's Delay 14-Jun-20 1-Oct-20 109
production
Employer's Delay (121 days)
Contractor's Delay (109 days)
DeDelay to Project
Concurrent Delay:
e
(i) Employer's delay in excess of the Contractor's delay (i.e. 12 days) attracts compensation of prolongation costs (Contractor is amenable to waive recovery)
Extension of Time:
(i) Extension of time to be granted:122 days
im
Internal Note:
T
Extension of time must be granted based on the Employer's delay to the project. Granting only the nett delay (i.e.
Employer's delay in excess of the Contractor's delay) would mean having the Employer to delay the project and at the
same time recover LD from the Contractor. It is a well-established and accepted principle that the Employer cannot
f
benefit from an act of preventing the Contractor from timely completion by imposing LD on the delay caused by the
Employer
o
The Society of Construction Law states in its Delay and Disruption Protocol (an influential authority on construction
delays) that:
(i)'Where Contractor Delay to Completion occurs or has an effect concurrently with Employer Delay to Completion, the
Contractor's concurrent delay should not reduce any EOT due'.
n
(ii) 'Contractor will be entitled to compensation only for any period by which the Employer Delay exceeds the duration of
s i o
t e n
E x
4/11/2019
m e
T i
o f
i on CASE STUDY 2:
s
Application of Extension of Time
te n
E x
153
m e
i
Acceleration
f T
SCL takes the following view on acceleration:
o
1. Where the contract provides for acceleration, payment for the
acceleration should be based on the terms of the contract.
n
Where the contract does not provide for acceleration but the
o
2.
i
contractor and employer agree tat accelerative measures are
s
necessary, payment should be agreed before acceleration is
commenced.
e n
3. It is not recommended that a claim for so‐called constructive
t
acceleration. However, the reality is that constructive acceleration are
x
necessitated by the circumstances and not avoidable.
77
4/11/2019
Acceleration im
e
f T
o
Works deemed to have been accelerated if:
io n
 C is compelled to complete the project earlier than the contract
date for completion; OR
ns
 Existence of excusable delays but A/E did not grant EOT without
te
valid reasons; C put in more resources to complete project by the
contract date for completion to avoid imposition of LD
E x
m e
Acceleration
Ti
Justification:
o f
n
 Existence of excusable delay(s)
i o
 Compliance with notification requirements
s
 Refusal by A/E to grant EOT
n
 C accelerated progress to meet the original contract completion
t e
date by:
x
 Deploying more resources; and
E
 Incurred additional expenditure
78
4/11/2019
m e
T i
f
Acceleration
n o
Quantification of acceleration costs:
i o
1. Manpower:
ns
Additional manpower costs arising from:
te
 Working beyond normal hours (overtime);
 Additional supervisory staff;
x
 Crashing of trades’ activities to complete trade works within
E
a shorter period of time but resulted in sub‐optimal
deployment of workers due to ‘stacking’ effect, need to prove
productivity loss;
m e
Acceleration
Ti
o f
n
2. Materials/Equipment:
i o
Additional material/equipment costs arising from:
s
 higher wastage than normal circumstances;
n
 more expensive substitutes that could enable quicker turn
t e
around;
x
 more equipment to be used at the same time to cater for
more gangs of workers
79
4/11/2019
m e
T i
f
Acceleration
n o
i o
3. Site management and technical staff:
ns
Additional staff costs arising from:
te
 more extensive coordination and management of different
trades working concurrently;
x
 more safety personnel to ensure compliances with safety
E
regulations and requirements;
 more support staff to plan, document and disseminate
information to facilitate seamless execution of the
acceleration plan.
m e
Liquidated Damages
Ti
NATURE & PURPOSE:
o f
n
1. Pre‐agreed damages that may arise out of or in
o
connection with culpable delays; penalties are LDs
i
that are deemed to be disproportionate to the breach
s
of contract of late completion;
t e n 2. LD vs penalties; LD is enforceable only if it is a
genuine pre‐estimated loss arising from late
x
completion by the contractor;
80
4/11/2019
m e
T i
f
Liquidated Damages
n
NATURE & PURPOSE:
o
i o
2. LD vs Penalty
ns
x te
E
m e
Ti
Liquidated Damages
f
NATURE & PURPOSE:
o
2. LD vs Penalty
i o n
n s
x t e
E
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4/11/2019
m e
T i
f
Liquidated Damages
NATURE & PURPOSE:
n o
o
2. LD vs Penalty
s i
te n
E x
m e
Ti
Liquidated Damages
f
NATURE & PURPOSE:
o
2. LD vs Penalty
n
Singapore High Court, applying the Dunlop rule, held:
i.
s i o
LD formula: A x B x 40% where A= months before expiry of
contract; and B= average of the last 3 billings was
n
extortionate and disproportionate as compared to revenue
t e
loss suffered by Seraya, a factor indicating the existence of
x
penalty clause;
E
ii. All 3 energy contracts have differing impact on revenue and
yet the same LD formula (A x B x 40%) was used; described as
indiscriminate penalty beyond justification of the legitimate
interest of Seraya, another indication of a penalty clause;
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4/11/2019
m e
T i
f
Liquidated Damages
NATURE & PURPOSE:
n o
o
2. LD vs Penalty
s i
Singapore High Court held:
n
III. LD clause will be triggered irrespective of the gravity of
te
the breach i.e. events to trigger LD ranged from
fundamental breaches to trivial non‐compliances; clear
x
indication the LD clause was in reality a penalty clause;
E
IV. One of the 3 ERA (energy agreements) allowed
imposition of LD for whatever reasons that would result
in the termination of agreement i.e. include force
majeure, impossibility etc; another indication of a
penalty clause
m e
Ti
Liquidated Damages
NATURE & PURPOSE:
o f
n
3. LD vs unliquidated damages:
i o
 Unliquidated damages are recoverable if not
s
precluded by express provisions of the contract
n
i.e. any other losses that are deemed not covered
e
by LD;
xt
 LD is enforceable without the need to prove
actual losses and need not go through arbitral or
E
court proceedings to enforce unlike unliquidated
damages.
83
4/11/2019
m e
T i
f
Liquidated Damages
n
ISSUES:
o
i o
1. Sole, Exhaustive/Exclusive remedy?
s
2. Cumulative in respect of phased completions?
te n
3. Cap/limit on the LD recoverable?
4. Other issues?
E x
m e
i
Liquidated Damages
f T
ISSUES: (1) Sole, Exhaustive/Exclusive remedy?
o
a. Should there be a question of whether or not liquidated
n
damages? Yes, actual losses could be greater than the LD
o
agreed.
s i
b. Court of Appeal in Temloc Ltd. v Erril Properties Ltd
n
(1987) was of the view that LD should sole and exhaustive
e
remedy for culpable delays; rationale is that LD is a
t
genuine pre‐estimated of losses arising from culpable
x
delays;
E
c. Advisable for you to qualify in your tender submission
that LD shall be the sole and exhaustive remedy for
delays;
84
4/11/2019
m e
Liquidated Damages
T i
o f
ISSUES: (2) Cumulative in respect of phased completions?
n
1. Unless otherwise expressly provided, LD for each stage of
o
completion shall be added on to the overall LD for the
i
completion of the project, for example:
s
 Phase 1 ‐ $10,000 per day
te n  Phase 2 ‐ $15,000 per day
 Overall completion ‐ $30,000 per day
x
If Phase 1 and Phase 2 could not be completed by the
E
project handing over date (assuming no grounds for EOT),
the total LD imposable shall be $55,000 per day.
2. Advisable to qualify your tender offer that LD shall be non‐
cumulative.
m e
Ti
Liquidated Damages
o f
ISSUES: (3) Cap/limit on the LD recoverable?
n
1. Unless otherwise expressly provided in the contract,
o
the quantum imposable for LD has no cap or limit.
i
The rationale is that the client/employer will
s
continue to incur losses until project is completed.
t e n 2. Notwithstanding, there is nothing to stop you to
qualify that the LD recoverable shall be subjected to a
x
limit of x% of the contract sum. The contractor may
E
consider providing the client/employer with a ‘Delay‐
Start Up’ insurance policy in exchange for a cap to be
imposed on the LD recoverable.
85
4/11/2019
m e
Liquidated Damages
T i
o f
n
ISSUES: (4) Other issues?
i o
In the event of a dispute on the validity of quantum of LD
s
recovered through progress payment certification process or
n
loss & expense claimed for prolongation/disruption in
te
payment requests, Claimants and Respondents to an
adjudication application under the SOP Act should take
x
note that the amended SOP Act which was amended in Oct
E
2018 disallows the following to be included for adjudication:
a. back‐charges for LD imposable; and
b. loss & expense arising from disruption and prolongation
claims.
m e
Ti
o f
i o n
END OF PART 1 ‐ EOT
n s
x t e
E
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4/11/2019

OBJECTIVES OF THE WORKSHOP

s i o Potential events not covered by other sub-

23(1) (m) Shortage of materials due to Overlaps with or as an alternative to Clause

16.1.2 A force majeure event as

18.2 Definition of Force Majeure Event:

18.2.1 Exceptionally adverse

18.2.2 Fire, storm, high winds,

18.2.4 Industrial action by

Severe haze- hazardous levels that

14(2) (h); S.O.’s instruction on variation of works, PC

14(2) (n) Acts of prevention or breach of contract

14(2) (o) Adverse physical conditions under Cl.5.2

51.4(c) C not having received in due time

e Acts or omissions of other contractors

Any other ground for extension of time

EOT Pte Ltd

te n ‘The Architect may in writing request the Contractor for sufficient

ns Jul-17 Aug-17 Sep-17

5 25 July'17 - Reply & 2nd WD

9 12 July'17 - 1st WD (Pending URA / Clearance)

11 28 Aug'17 - Requested Withdrawal

12 30 Au'17 - ST23 Submmission

18 29 July'17 TC-2 / Bored Pile (4nos)

19 3 Aug'17 TC-2 / Bored Pile (4nos)

26 16 Sept'17 - 3rd Boring Rig

Employer’s Delay Events:

Annex 1: Chart summarising the delays

15 Jan 2019 Structural

SCDF Approval for Option

Consultation with BCA

BCA NOA CS04

Contractor's Delay: 109d

Source of Delay Sch TOP Forecast TOP Date Duration of

Employer's Delay (121 days)

Contractor's Delay (109 days)

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