Construction Law/JCT

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Question
Hello Mr. Testro,

We are in defects period for a $22m project in East Africa which was carried out under JCT SBC/Q 2009 (Rev 2) form. I/we have little experience with JCT.
The Architect issued Practical Completion already but the issue date was beyond the original contract completion date.We had applied for an EoT which went unanswered by the Architect.
No Non-Completion Certificate was issued but the Architect has now stated that LD's will be applied. Can he do this after P.C. and the fact that no Non-completion Cert. was issued?
The second part is that the delays were mostly attributable (but not yet proven) to a Listed Sub-Contractor. The issue was that there was in fact no list, so we didn't get a choice of Subcontractors. Is this something we can use to our benefit in negotiations?

Thank you,

BG

Answer
Hi Brian - Sorry I did not get onto this sooner - I have been away from my desk.
If you read the JCT contract section 25 Extensions of time you will see that the Architect has not followed the rules - indeed he has exceeded his powers.
If you look at 25.3.3.1 you will see that the Architect is himself obliged to review all matters and award a reasonable EoT even if no claim has been made by the contractor.
When this 12 weeks have elapsed and still no response from the Architect then time would be "Set at Large" and no LAD's can be deducted.
That should be a pretty strong negotiating lever.
Even in the UK very few Architects realise the implications of 25.3.3.1 and I have used it to catch them out several times.
I hope that helps.
Mike Testro

Construction Law

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Mike Testro

Expertise

Anything related to extensions of time and delay analysis.

Experience

45 years in the Construction Industry 15 Years as a consultant delay analyst - I now hold myself to be expert in this field.

Organizations
Society of Construction Law Adjudication Society ex Planning Engineers Organisation

Publications
6 articles on the relevance of the India Contract Act 1872 and its relevance to modern construction in India. Waiting Publication

Education/Credentials
Associate Member of the Institue of Building

Past/Present Clients
Currently employed in India by Punj Lloyd as expert delay analyst. Engaged in ongoing arbitrations and EoT claims. Prior an Indepenent consultant in delay analysis.

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