The problem with the other extension of time provisions is not what they say, but how they are interpreted. Take exceptionally adverse weather conditions. Snow in January is not exceptional; neither is rain in October. The contractor is already obliged to predict anything within the normal range of weather patterns and to manage its work accordingly.
Truly exceptional weather – hurricanes, freezes and floods – is beyond the control of even the most resourceful contractor, and so this is a risk that should be shared.
Ann also omits to mention that the contractor must already ensure delays are managed properly – clause 25.3 obliges contractors to use their best endeavours to prevent delays to completion.
Then there is the alleged “fudge”. I can reassure Ann with some confidence that it is not the employer that is being stitched up in these circumstances. The fudge is far more likely to be caused by architects who are reluctant to admit that delays have been caused by their own inefficiencies, but will not go so far as to penalise the contractor by exposing it to liquidated damages. As if by magic, an extension on the grounds of, say, weather, will be granted. Adjudication may lead to a more rigorous review of such decisions, but a better solution would be to take decisions about architects’ performance out of their own hands and refer them either to a neutral third party or to the employer.
Finally, Ann suggests deleting the clauses on labour and materials and nominated subcontractors. These are already removed by many employers, so a review is sensible.
However, it is worth bearing in mind that the current list of relevant events is very tightly drawn – problems with labour and materials must be unforeseeable and beyond the contractor’s control. If the employer specifies a rare marble for his bathrooms that suddenly becomes unobtainable, should the contractor really have to pay liquidated damages as a consequence? If the employer’s answer is yes, prudent contractors will allow for that risk in their prices, and the client will pay whether or not a delay occurs.
I believe fairness and value for money would be best served by a shorter, clearer list of relevant events and a more reliable, independent decision-making process.
Jennie Price is chief executive of the Major Contractors Group.