Expert: Mike Testro - 2/10/2012

Question
Dear Sir,

We had finished The Main Brine Intake Structure Project on Dead Sea, Jordan. Consultant and Client had caused delays because of their late delivery , false design and projects The Steel Construction had increased 66 %. We had asked time extensions for such issues they claimed that after getting the final projects we had not applied within 28 days. On the other hand, they forced us during the work to contuneu and promissed that they would give time extension and not apply penalty.
The finishing date of the project was June,2010 and Taking over was made on March 2011. 2 of 4 pumps were taken over by the client on September 2011. the other 2 on March 2011.

They had not asked and/or applied any penalty before the Taking Over Time on March 2011. But, they applied penalty starting from June 2010.

According to Fidic, Contractors should apply to the Client within 28 days, otherwise they will loss their rights. They forced our Project Manager not to write any letter and they would not apply any delay penalty.

We rejected their demand for delay penalty, saying that they shoulod inform us and apply the penalty to the installments starting from June 2010.

Is there any right of a contractor to ask limit ( such as 28 days ) for the instruction of the Client?

We know and believe that, any contract should have equality for the parties. Otherwise such demands will be void. Do you have an answer or application for the issue given aboove?

Kindest Best Regards.

SENER ARDA, Civil Eng. BS,MS

Answer
Hi Sener
The absence of a timely notice of delay is not fatal to claiming an extension of time - particularly where the delay was caused by the employer or the engineer involved.
This is known as an "Act of Prevention" in the UK and is based on the principle that no one should profit from their own defaults - I am sure that the law in Jordan has a similar code - certainly Sharia law does.
Why should they need a notice to tell them that they are delaying the works.
The situation that you describe whereby you were coerced into withholding the required notice is quite a common practice in the construction industry but the courts will mostly support the contractor in such cases.
Your counter point should be to prepare and send in a brief extension of time claim with costs and state that this will be taken to arbitration unles the engineer grants an EoT and releases the LAD's
If necessary the project management should prepare and sign a sworn statement that they were promised that if they did not put in the required notice then no penalties would be applied.
A strong response is needed to put the matter right.
Best regards
Mike Testro