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clause 17. It is submitted that this framework does not allow the Engineer to
grant an extension of time and determine the actual cost of executing the
additional work but to stop short of determining the consequential prolongation
costs. This is unfortunate as the Engineer must decide between unsatisfactory
alternatives.
In the United States, the courts have been striving for what has been submitted is
the just result. Where the responsibility for delay is concurrent, each party is left
to absorb its own loss and an extension of time alone would be granted. See, for
example, Commerce International Company v United States 338 F2d 81, 90
(1964) and United States v United Engineering and Construction Co. 234 US 236
(1913). "The rule is well settled that where both parties are responsible for the
delay and completion of the contract and it is impossible to ascertain the true
balance by setting off one against the other, no... damages can be assessed":
Sun Ship Building Co. v United States 76 Ct. Cl.154, 188 (1932). "Where two
parties are delayed in the accomplishment of the construction objective, neither
party should be allowed to profit from the delays of the other": Blackhawk Heating
& Plumbing GSBCA No. 2432, 17-1 BCA 76-1 BCA No. 11, 649 at 55,577.
44.2 This clause raises the question whether a failure to give the requisite
notice would be fatal to a Contractor's application for extension of time. The
clause says that the Engineer "is not bound to make any determination" so it is
still open for him to do so if he so wishes. How the Engineer should exercise his
discretion in these circumstances is debatable. Clause 2.6 (Engineer to act
impartially) presumably applies so the Engineer has to act impartially to reconcile
the conflicting interests of Employer and Contractor. If he should grant the
extension if deserved, the notice procedure is rendered redundant. If not, the
preservation of the Engineer's power might be thought pointless. It is submitted
that the Engineer should exercise his discretion in the manner suggested by
clause 53 (Procedure for claims), namely to allow extensions which are verified
on contemporary records but disallow very late claims of which his team had no
knowledge and which the Contractor seeks to support by new or oral evidence
only. In short, the Engineer should have regard to the purpose of notice
provisions, namely to avoid surprises and "claims-by-ambush", and should not
allow valid claims to be ruled out on technicalities.
Under ICE 5th, an Engineer may extend "if he thinks fit in the absence of any
such claim". A similar discretion exists under ICE 6th.
It is unclear exactly when the Contractor's time for notifying the Engineer begins
to run. The first notice must be given "within 28 days after such event has first
arisen". "Such event" appears to be one of the listed matters "being such as
fairly to entitle the Contractor to an extension of time". Thus in a case where
additional work was ordered, then designed, supplied and installed over a period
of time, it may only be realised during the installation period that delay would
result. In such circumstances, it is not at all easy to identify the beginning of the
28-day period.
There is no specified form for the notice to be given by the Contractor and it may
be sufficient to point to correspondence or other documentation provided that the
formalities of sub-clause 44.2(a) and clause 68 (Notices) have been complied
with. As to the details to be provided, it would have been clearer to say "detailed
particulars in support of any extension of time" as the present wording indicates
only details of the extension of time required.
"In order that such submission may be investigated at the time". The statement
of the purpose of the sub-clause may well allow arbitrators to make common-
sense decisions as to whether to treat the clause as a condition precedent to an
extension of time. If the Engineer has been taken by surprise at the end of a
project by a claim for an extension of time and his ability to investigate the claim
is undermined, the arbitrator could rightly rely upon the condition precedent.
It is submitted that the prohibition in the final sentence of the sub-clause upon
decreases in extension of time does not bind either the Engineer when making a
decision under clause 67.1 or an arbitrator under clause 67.3 (Arbitration). The
prohibition applies only to the final review.
Where the circumstances of the project are such that day and night working
and/or working seven days a week is desired, Part II provides an alternative
clause.
In order to work extra hours, the Engineer's consent may be obtained under this
clause or, after a notice to accelerate, under clause 46.1 (Rate of progress).