PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

Please tick () one box only and justify your answer in the space

provided below. Where appropriate, answers should be justified by

reference to case law.

Questions are based on FIDIC Conditions of Contract For Building and

Engineering Works designed by the Employer (1st Edition), 1999

1. The Employer is 2 months late in providing the Contractor with possession of the site.

Analysis of the programme identifies that Completion of the Works by the date prescribed

in the Contract will no longer be possible and that following absorption of the entire float

within the programme it will still be necessary to extend the Contract completion date by 21

days. The Contractor submits a claim notification 27 days into the Contract requesting an

extension of time. The Engineer is angered by the Contractor’s submission, stating that the

adoption of such a contractual and confrontational approach in the first month of the project

reflects poorly on the character of the Contractor. Is the Engineer justified in having this

opinion? Please also advise what interim extension of time should be determined and how

long after the submission of the notification it would be reasonable for the Engineer to wait

until making his determination?

a) Yes b) No

Justification

1 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

2. The Employer is 2 months late in providing the Contractor with possession of the site.

However, due to the default of the Contractor, the consent was not given to subcontract the

first activity on the programme (site clearance works) until 3 months after commencement

of the Contract. This activity is on the programme`s critical path. In addition the Contractor

did not submit any of the documentation denoted in the Contract as being a condition

precedent to the commencement of the Works e.g. Health & Safety Plan, Quality P lan etc

until 2 weeks after being given possession of the site. The Engineer has considered the

above and determined that as the numerous Contractor defaults are the dominant cause of

the delay and the delays incurred would all still have been experienced if possession had

been given on the Commencement Date the Contractor is, therefore, not entitled to any

extension of time or additional payment. Is the Engineer’s determination of no extension of

time and no additional payment correct?

a) Yes b) No

Justification

2 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

3 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

3. The Engineer issues a variation instructing a significant quantity of additional work. Due to

the huge significance of the change, the Engineer convenes a meeting with the Employer

and Contractor 7 days after instructing the variation to explain the scope of the change,

agree the valuation and determine the effects thereof. The Contractor advised at this initial

meeting that analysis of the programme identified that the Time for Completion of the

Works will likely be extended by 30 days by reason of the variation. The Employer and

Engineer both verbally agree with the Contractor’s estimated delay to the Contract

completion date. Subsequent meetings are convened at intervals of 14 days to discuss the

varied works at which the progress of the affected works is reported by the Contractor and

verbally agreed by the Engineer and Employer. These meetings continue until the

completion of the works affected by the variation. All of the above is recorded in the

minutes of each meeting. Are these minutes of meeting sufficient to constitute compliance

with the notification and submission requirements in Clauses 8.4 and 20.1 of the General

Conditions of Contract?

a) Yes b) No

Justification

4 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

5 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

4. The Contract has been amended such that submission of a notification by the Contractor

within 28 days of an event arising is a condition precedent to the Engineer awarding an

extension of time. A delay event occurs, which is due to the default of the Employer, the likely

effect of which is the requirement for a 40 day extension to the Contract completion date.

However, the Contractor does not submit a claim notification for this event until 35 days after it

arose. Is the Contractor entitled to an extension of time? Please also advise what the position is

with respect to the Contractor’s completion obligations and the Employer’s right to levy

liquidated damages?

a) Yes b) No

Justification

6 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

7 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

5. The programme for the project (submitted pursuant to Clause 8.3) identifies the planned

sequence and method of construction of the works. Following issuance of the Engineer’s

consent to this programme, the Contractor decides to deviate from the sequence and method

described therein. When this becomes apparent the Engineer writes to the Contractor stating that

they have not approved this revised sequence and method of construction. The Engineer issues

an instruction requesting that the Contractor return to working in accordance with the original

plan. Is the Engineer authorized to make this request? Under what Clauses of the Contract

should this instruction be considered?

a) Yes b) No

Justification

8 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

9 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

6. Halfway through the Contract the Engineer made an interim determination of extension of

time of 2 months in respect of a delay caused by the Employer (for which the effect was

continuing). After the effect of the event had ceased, the Engineer undertook a final review

of the circumstances surrounding the delaying event. This review identified that the actual

effect of the event was only a 1 month delay to the Contract completion date. Should the

Engineer revise the Contract completion date in order to reflect the actual effect on the

Works? In addition, the Contract was amended to include a clause obliging the Contractor to

use his best endeavours to mitigate any delay to the project. Upon identification of the

above Employer delay, the Engineer sent a letter to the Contractor highlighting the

obligation to mitigate delay and requesting that the Contractor re-programme the works,

increase resources on site, work overtime and complete work activities faster than that

previously programmed. Must the Contractor comply with this instruction and who should

bear the cost for each of the suggested measures to mitigate the delay?

a. Revision of Contract completion date

a) Yes b) No

Justification

b. Delay mitigation

a) Yes b) No

Justification

10 of 11

PT Wijaya Karya – DSU Studi kasus – Perpanjangan Waktu (Extension of Time –EOT)

11 of 11