Construction Law/GC 21 Extension of time
I am not sure if you are familiar with GC 21 General Terms and Conditions (Second Edition), if not feel free to follow the link below: http://www.rta.nsw.gov.au/doingbusinesswithus/downloads/contracts/08.2613.0126.p
The Contract provides no clear direction on the extension of time caused by Inclement weather. However, Clause 50.1.1 establishes clear boundaries "the Contractor is or will be delayed in achieving Completion by a cause beyond the control of the Contractor, inbcluding an act, default or omission of the Principal, but not including any cause which yhe Contract expressly states is at the Contractor's risk of for which the Contract expressly precludes a claim for extension of time..."
The statement is very and ambigous to me. The clariity of it is in the statement "anything beyond Contractors control". This could be anything in construction. However, ambiguity always exists.
Question1: Has the Superintendent rights to reject a claim for Inclement weather, taking into consideration no other arrangments, exclusions have been made in the contract and during pre-tender period.
Question 2: Has the Superintendent rights to reject a recovery day / days for inclement weather. Example, it rains today but does not rain the following day / days, however the impact of wet days prevents the Contractors from doing any works the day / days after the rain event.
Question 3: In an event wher an extension of time is granted, does tha mean the Client / Proncipal / Superintendent is to compensate for all costs associated for constructing a job beyond the completion date. The compensation includes all costs associated woth overhead,site running costs, cost of plant, equipment etc.
I answer questions on FIDIC CoC in common law jurisdictions, but I'll make an exception for once, after you made a mistake in the clause number, just to check that I read your question properly. Most standard forms of contract have dealt with, and resolved, this problem more than 30 years ago, so I am surprised that this form is not clearer on the subject.
Whenever dealing with delay and disruption questions, I recommend that the questioner download and study the SCL Delay and Disruption Protocol www.eotprotocol.com which is the best guide to extensions of time that I have found. There are a couple of guides published by American bodies, but, to me, they are very complicated and confusing.
With regard to your questions, the general approach in common law countries is 'what would an experienced contractor have expected?' The solution has been interpreted to mean that the weather has to be worse than the average conditions during the past ten years. I have no experience of your jurisdiction, so I cannot advise you on the relevant case law. you could have a look at the e-library of Lovegrove solicitors http://www.lovegrovesolicitors.com.au/home/about-us
for relevant case law.
1. The superintendent always has the right to reject a claim, but will his decision be overturned by the lawyers and cost his client a lot of money? The superintendent must always proceed with caution.
2. The Contractor has to prove that his critical path has been affected by the event and any consequential effects, such as embankments that are too wet to be compacted. However, he must make all efforts to mitigate these effects.
3. Depends on who assumes the risk. If there is nothing in the Contract, one would expect an experience contractor to make provision for any costs associated with the event. Clause 40.2.1 might be relevant in this instance. FIDIC 99 clause 8.4 deals with extension of time only. If the Contractor wishes to recover costs as well, then he must make a separate claim based on the underlying cause for the extension of time.