I Issued an Extension of Time Request, But He Is Looking to Reduce the Contract Period!
On some projects that we work on, we are miles apart from the Client in terms of requests for an extension of time that the Contractor is due. Sometimes, this is down to how we deal with Variations; more specifically the Variations that omit work from the Contractors scope of work.
One of my favourites was on a particular project where the Contractor scheduled out all the Sub-Contractors’ negative Variations, assessed the extension of time it would have taken to complete the work, then totalled up these days and attempted to reduce the original Contract period. From memory, I think he virtually concluded that we should have finished before we actually started!! Obviously, this approach is not only factually flawed (as it takes no account of criticality etc.), but it is also contractually flawed.
Clients nearly always take the view that they can take account of all Variations that omit work and save time on site when assessing the new or adjusted Completion date. Even to the point where they can reduce the Contract period and set the Completion Date at a date prior to that set out within the Contract.
Well, as always it depends on the Contract to hand.
Some forms of Contracts (though not many) specifically state that the Completion Date cannot be fixed to an earlier time than that set out within the Contract, and in the absence of an express right in the Contract to do this, then I would suggest it is unlikely that this will be successful.
What’s not so clear is what happens when a new Completion date has been fixed and then variations are issued that then proceed to omit work? Again, in a few Contracts the Client has an express right to take these omissions into account and reduce the award already given, and fix a revised Completion Date to reflect this omitted work. But not to a date earlier than that set out within the Contract, just earlier than the revised Completion date.
But I would suggest that this is not the norm and where your Contract is silent about this and does not expressly confer a right on the Client to reduce a previous extension of time award, then he would not have a right to do so.
So, the key to it all is, read the Contract – the rules of the game – and unless your client has an express right to reduce or amend your extension of time already awarded, then I would suggest he is on sticky ground!