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EOT when time has lapsed

A general contractual question regarding EOT:


A Contractor had failed to complete the Project in Time. During the delay (his fault) he suffered
delays of neutral nature (adverse weather conditions, force majeure). Is he allowed to be granted
EOT for these events?
ICE, JCT, FIDIC all differ. When drafting a force majeure clause the parties can define what does and
does not conform to force majeure. Force Majeure can therefore be subjectively defined. Under JCT,
if the delay results from force majeure, then it would be considered a relevant event, which may
result in an EOT or reduced liability if is only a part of a longer overall period of delay. With regard to
the weather element of force majeure, ICE and JCT limit the Employers liability to granting an EOT
for exceptionally adverse weather. Generally an EOT for force majeure only removes the liability for
LADs, because the Contractor is unable to recover his own delay costs. Unless the Parties have
drafted clauses that entitle them to recover costs from each other, the costs lay where they lay. ICE
does not refer to force majeure, but it deals with what is termed any special circumstances.
In my experience each party pays their own costs. The Contractor can either be awarded an EOT
without costs or may be notified that LADs will not be deducted for the period of time that the
project was affected. Each method removes the exposure to the LADs for the period of the event.
Yes, the Contractor is entitled to EOT on delays of neutral nature that are beyond his reasonable
control. In this case, they are concurrent with the Contractor's own delays and thus, there should be
no LD and no prolongation costs.
But it was the Contractor's fault that he entered into the period of neutral and/or relavant events.
Had he finished the Project in time such a situation would not have arisen.
It is specifically for that reason that the Contractor is not entitled to prolongation cost, even if he
should otherwise be entitled to it.
Moreover, there is normally no provision in the Contracts (e.g. Clause 8.4 of Red FIDIC 99) that the
Contractors contractual entitlement to EOT due to the causes specified in subparagraphs (a) to (e)
shall cease, if he is in concurrent delay.
As opposed to a legal concurrency, it can be factually impossible to be delayed by a neutral event if
you're already delayed.
Consider the situation where no work can progress without a crane and the Contractor's crane didn't
turn up to work one day. If the next day the crane still hasn't turned up but it rains, the rain hasn't
factually caused delay.
If during a certain period the Works could not proceed due to the Contractors crane and during the
same period an exceptionally adverse rain occurred, then the Works are concurrently delayed by the
crane and the rain.
To argue that the Works are delayed by the crane and not by the rain would invite a seemingly valid
counter argument that the Works are delayed by the rain and not by the crane.
Perhaps a crane is a poor choice. How about Contractor's procurement? Delivery due on day 1,
rained on day 2, delivery arrived on day 10. No work occurred days 1 - 10.
In that second example, day 1 was delayed by procurement, day 2 was concurrently delayed by
procurement and the rain, days 3 through 10 were delayed by procurement. The Contractor should
get one day EOT for the concurrent delays in day 2.

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