Construction Law/Time related cost

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Question
Dear Sir,

I have one question.  

My question relates to time related cost

At the beginning because of delay in provision of alignment and surveying data, extension of time was granted. But the contractor could not complete the project within the extended time. He claimed for further extension of time on other grounds but it was not accepted.

The Contractor also claimed time related cost for the extension of time he was granted previously.

The relevant provision in the contract says:

“If a Compensation Event would cause additional cost or would prevent the work being completed before the Intended Completion Date, the Contract Price shall be increased and/or the Intended Completion Date shall be extended. The Engineer shall decide whether and by how much the Contract Price shall be increased and whether and by how much the Intended Completion Date shall be extended.”

The Employer raised about CONCURRENCY stating that during no time the Contractor was able to progress as he planned and that he was in CONCURRENT delay.

Can the Employer raise an issue of CONCURRENCY or simply he is obliged to pay for time related cost as per the above provision, as the event based on which the extension of time was given [failure to give alignment and surveying date] is listed as one of the Compensation Events in the provision before what I quoted above?

I am deeply indebted in advance to hearing your expert advice.

Alemu

Answer
Dear Mr Alemu,
I think, in this case the clause referred by you is in favour of employer. Note the 'and/or' in the clause. This time the employer has chosen 'or' but not 'and'.
As the justification, the employer is raising concurrency to defend his stand not to give you the time related cost. It is the duty of the contractor to prove that he was unable to proceed any work due to the employer's delay in giving survey details and should have notified the effect of this delay to the employer within the 28 days of contractor became aware of this occurence. If the contractor fails to record this and notify the employer, the employer need not oblige to compensate the time related cost. however, the contractor already got the extension of time.
It is very difficult to prove that there is no concurrency in this case.
I hope I have clarified enough.
regards,
r sivaraman

Construction Law

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R.Sivaraman

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