USO CORRECTOS EN LA ATENCIÓN DE PACIENTES

This clause provides the mechanism for extension of time to be granted. If the Contractor is fairly entitled to an extension, the Engineer must grant one, having first consulted with the parties. The qualifying grounds are as follows:-

-extra work

-other grounds "referred to in these Conditions" -exceptionally bad weather

-Employers' delays -special circumstances

The Contractor is to give notice of the delay within four weeks and is to submit detailed particulars four weeks later.

If the delaying event is continuous, provision is made for interim and final particulars and the determination of interim and, after consultation, final extensions. The final extension may not reduce the interim extensions granted. Clause 44 contains some major changes as compared with the 3rd Edition. In particular item (d) of sub-clause 44.1 is new as is the two-stage notification process in sub-clause 44.2. Sub-clause 44.3 is entirely new.

44.1

"(a) The amount of or nature of extra or additional work." Clause 51 (Variations) permits the Engineer to order:-

- increased work - decreased work - omissions

- changes to the character/quality of the work, its position, its sequence

- additional work

Although the word "extra" is not used elsewhere in this context in the contract, it may be that "extra or additional" reflects the distinction between the increase in quantities at clause 51.1(a) and the addition of new work at clause 51.1(e). On this assumption, this ground for extension of time covers the first and last items in the above list only. A decrease in quantities or an omission could have time consequences and it is obvious that any one of the changes listed could cause delay to the works. Unless one treats a change as an omission and an addition, which is artificial, changes are not obviously covered and one may have to resort to trying to push them into (b) "any cause of delay referred to", (d) "any delay, impediment or prevention by the Employer" or (e) "other special circumstances". For an alternative interpretation of the word "extra", see the discussion under clause 51.2 (Instructions for variations) in relation to the granting of extensions of time for "automatic" changes in quantities.

In the UK, at least, if a change was ordered by the Engineer which caused delay but for which the extension of time clause made no provision, it would be arguable that time was at large and the Employer's ability to recover liquidated damage was lost. See on time at large Peak Construction v McKinney Foundations (1970) 1 BLR 114.

For comment on the Contractor's right to extensions of time in relation to work which is the subject of provisional sums, see under clause 58.2 (Use of Provisional Sums).

"(b) any cause of delay referred to in these Conditions". This wording, which is shared with ICE 5th and ICE 6th, is not without ambiguity. Does it only refer to clauses where there is express reference to delay, extensions of time and clause 44 or could it also refer to clauses which deal with events which would frequently cause delay but have no express reference to extensions of time, such as clause 17.1 (Setting-out) or clause 20.3 (Loss or damage due to Employer's risks)? Express references to clause 44 can be found in the following clauses:-

- clause 6.4 (Delays and cost of delay of drawings)

- clause 12.2 (Adverse physical obstructions or conditions) - clause 27 (Fossils)

- clause 36.5 (Engineer's determination where tests not provided for) - clause 40.2 (Engineer's determination following suspension)

- clause 42.2 (Failure to give possession)

- clause 69.4 (Contractor's entitlement to suspension of works).

Express reference to the word "delay" is to be found only in clauses 6.4, 27, 42.2 and 69.4, all of which are in the above list.

It may also be possible to argue for a construction of these words as meaning anything referred to in the conditions which causes delay. However, as such an interpretation would probably include the Contractor's delays, success is unlikely. "(c) exceptionally adverse climatic conditions." The intention is that the Contractor should allow for all the usual vagaries of the weather. The use of the term "climatic" as opposed to the more usual "weather" may have a broadening effect on this ground for extension. For example, a flood which does not result from exceptionally heavy rainfall in the area of the site might be covered by "climatic" but not by "weather".

Comparing "exceptionally adverse" with "exceptional adverse" as used in the 3rd Edition and ICE 5th and ICE 6th, one sees a subtle but important change of emphasis. Under those forms, the weather has to be both exceptional and adverse. In these conditions, the weather need not be unusual, it must only be exceptionally adverse. This raises the possibility that it could be conditions on site that make the weather exceptionally adverse rather than anything unusual about the weather. Equally, if the weather was very unusual but did not cause exceptional difficulty, an extension could legitimately be declined.

This item should be read with clause 11.1 (Inspection of Site) which requires tenderers to take note of the "hydrological and climatic conditions", clause 12.2 (Adverse physical obstructions or conditions) which excludes climatic conditions from the effect of the clause, clause 20.4 (Employer's risks) item (h) "any operation of the forces of nature" and clause 40.1 (Suspension of work).

(d) "any delay, impediment or prevention by the Employer". In the UK at least, there needs to be clear words that allow an extension to be granted for a breach of contract by the Employer. See, for example, Peak Construction v McKinney Foundations (1970) 1 BLR 114. It seems likely that the words used are sufficiently clear to cover such breaches although the absence of express reference to breach invites an argument to the contrary. It is submitted that as delays, impediments and preventions are clear examples of breach, if not authorised in the conditions by provisions such as clause 38.2 (Uncovering and making openings) or clause 51.1 (Variations), the quoted words are sufficiently clear to cover breach.

Delays by the Engineer should also be covered by the words, at least in respect of those actions of the Engineer which are performed as agent for the Employer. However, the contrary is arguable: there is no reference to "servants or agents" either here or in the definition of the Employer at clause 1.1(a)(i). Agents are referred to in clause 22.2 (Exceptions) and clause 24.1 (Accident or injury to workmen) so, it would be argued, the draftsman has used the term where he intended it to apply. The fact that agents are not mentioned here is thus deliberate. Further, the Engineer's defaults have been covered elsewhere in clauses such as clause 6.4 (Delays and cost of delay of drawings) and clause 17.1 (Setting-out). It is submitted that this argument, which is unlikely to have impact outside common law jurisdictions, is essentially unmeritorious however sustainable by the rigorous application of the canons of the construction of contracts. The intentions of the parties are clear: time should not be set at large due to some failure of the Employer or his team when an extension of time is perfectly capable of doing justice between the parties. Arbitrators are unlikely to frustrate this purpose on such narrow grounds.

There is no provision under this contract for extensions of time due to delay by subcontractors nominated by the Employer. This is in contrast to some English forms which balance the Employer's right to choose a subcontractor by placing part of the risk of that subcontractor's default upon the Employer. A Contractor might nevertheless be entitled to an extension of time if the selection of the defaulting subcontractor was sufficiently negligent as to amount to delay, impediment or prevention by the Employer. It must be noted however that the Contractor is given the right to raise reasonable objection under clause 59.2 (Nominated Subcontractor; objection to nomination). If the Contractor failed to raise an objection, he may have no grounds for extension.

(e) "other special circumstances which may occur other than through a fault of or breach of contract by the Contractor or for which he is responsible". "Special" in the Concise Oxford Dictionary means "of a particular kind, peculiar, not general; exceptional in amount, degree, intensity etc". Thus, it is clearly not a catch-all clause as merely routine delays would seem to fall outside these words. There is however little authority on the meaning of these words leaving the Engineer and arbitrator with virtually unfettered discretion.

It is not immediately obvious why this item alone has been qualified by reference to the Contractor's default. It must apply equally to items (a) and (b). The word "fairly" would seem to achieve the necessary result. The inclusion of the specific exception could indeed have the effect of undermining the interpretation of "fairly": why, it would be argued, would the draftsman have included the exception in item (e) if "fairly" is intended to mean the same?

"Fairly to entitle ..." This sub-clause is phrased in such a way as to define the Contractor's entitlement to an extension of time and then make it mandatory for the Engineer to determine and grant the Contractor his entitlement. Compare this with ICE 5th where the Engineer is obliged only to "make an assessment of the extension of time (if any) to which he considers the contractor entitled." In practice, the difference may not be significant but the distinction could be sufficient to encourage an argument that the Engineer is obliged to grant the Contractor's fair entitlement. Thus it could be said that the Employer's obligation in relation to certification is to procure that the Engineer certified fairly. This would be going considerably further than the obligation recognised by English law at present, which only places an obligation upon the Employer to ensure that the Engineer makes the determination and that he is free to do so fairly under clause 2.6 (Engineer to act impartially). For further discussion on the Employer's duty, see under sub-clauses 2.1 (Engineer's duties and authority) and 2.6.

There is no express obligation upon the Contractor in this clause to take all reasonable steps to mitigate the effect of delays, such as would be found in many English standard forms. There is an obligation in clause 41.1 (Commencement of Works) to proceed "with due expedition and without delay" but, it is submitted, it is the phrase "such as fairly to entitle" which ensures that the Contractor will not receive extensions of time for reasonably avoidable delay. "Any Section or part thereof ...". A section is defined as a portion of the Works specifically identified in the contract as a Section. A part is therefore a part of the Works which is not so identified. Under clause 47.2 (Reduction of liquidated damages), provision is made for the reduction of liquidated damages where a part of the works has been taken earlier than the whole of the works or the section of the works of which it forms part. However, it is not necessary for that part to be the subject of a separate award of extension of time. The effect could, however, be to allow the Engineer to grant an extension of time to a narrowly defined part of the site and thereby increase the Contractor's liability for liquidated damages.

"...after due consultation with the Employer and the Contractor". This requirement upon the Engineer to consult with the Employer and Contractor is new to these conditions. Indeed, in sub-clause 44.3, the requirement to consult was only added with the Editorial Amendments made in 1988. The objective is to add an element of natural justice to the decision-making process and to ensure than Engineers do not speak exclusively to their paymasters prior to making important decisions. Consultation is not intended to alter in any way the Engineer's obligation to make an independent decision and clause 2.6 (Engineer

to act impartially) is intended to override. Presumably, a determination of the sort provided for in this clause would be covered by clause 2.6 (Engineer to act impartially) item (d) "action which may affect the rights", although determinations other than of value are not expressly referred to.

The timing of the grant of the extension is not catered for in the clause which only says it must be after consultation with the parties. Clause 1.5 (Notices, consents etc.) has removed the need to imply a term: the determination may not be unreasonably withheld or delayed. It is submitted that this imposes a duty on the Employer to ensure that his Engineer performs: see the English case of London Borough of Merton v Leach (1985) 32 BLR 51. As to whether a failure to determine could ever cause the extension of time machinery to break down, leaving time and damages "at large".

Concurrent delays: a perennial problem in relation to extension of time provisions is how to deal with circumstances where two causes of delay overlap. There is no problem if the two causes of delay are the responsibility of the same party with the same financial consequences but there is difficulty if the overlapping delays fall into two of the following categories:

(i) delays only the responsibility of the Contractor: no extension of time or

reimbursement of costs, liquidated damages deducted;

(ii) neutral delays, where the Contractor receives extension of time but no

reimbursement of costs; and

(iii) delays wholly the responsibility of the Employer where the Contractor receives extensions of time and reimbursement of costs.

This problem. which has been the subject of much comment and debate, has not been addressed, let alone resolved by the current clause. There is consensus, in the UK at least and in the absence of conclusive authority, that if overlapping delays fall into categories (ii) and (iii) above i.e. a neutral delay such as the weather and a delay which is wholly the responsibility of the Employer such as late possession of the site, then these delays should be treated as the responsibility of the Employer and the Contractor should receive his reimbursement. It is the combination of categories (i) and (ii) and categories (i) and (iii) that cause the greatest difficulty. These questions will be addressed in broad principle first followed by an examination of the contract conditions:

-Overlap between (i) and (ii): Contractor's default and neutral delay.

If it is accepted that the Employer's responsibility should predominate over a neutral delay, it may well be arguable that the Contractor's default should likewise predominate over such neutral delays. To take an example: if the Contractor claims that bad weather prevented him from completing certain concrete foundations, the Employer's response might be that the Contractor was not ready to proceed in any event due to the failure of the Contractor's reinforcement

subcontractor to have the necessary reinforcement on site and ready for installation. The Contractor says that he could not have finished earlier than he did because of the intervention of the weather. The Employer replies that the weather did not cause him to be delayed as the subcontractor's default would have prevented earlier execution of the foundations in any event. At this point, the parties would probably immerse themselves in complex critical path exercises in order to attempt to demonstrate that one of the delays was "dominant" or "effective". If the bad weather lasted a day beyond the time that the subcontractor was able to start or if the subcontractor had not delivered the steel to the relevant part of the works for a day after the weather permitted work to start, one party would then claim that the other delaying event was irrelevant. In reality, of course, both events prevented the works from proceeding although one of the events might have been solely responsible for some part of the delay.

As there is no question of the Contractor being compensated, the sole question is whether the Employer should receive liquidated damages to compensate him for the late receipt of the project. The Employer had accepted the risk in the contract that if exceptionally bad weather should occur then he would receive no such compensation. The receipt of liquidated damages would therefore be something of a windfall for the Employer. The Contractor, on the other hand, will have to pay for his own prolongation costs in any event. On broad principles of fairness, it is therefore submitted that the Contractor should receive an extension of time relieving him of liability for liquidated damages. Whilst this produces the result that the Contractor "gets away with" his subcontractor's default, he has nevertheless incurred irrecoverable prolongation costs. Better, in short, that the losses should lie where they fall than that the Contractor should be penalised twice, by liquidated damages as well as by prolongation costs.

-Overlap between (i) and (iii): Contractor's default and Employer's Default.

The problem is at its most acute when the Employer and the Contractor have caused concurrent delays. To adapt the earlier example, the Contractor complains that the Engineer has not provided him with necessary details and drawings to execute the foundations; the Employer replies that the Contractor's steelwork subcontractor has not supplied the necessary reinforcement to the site or otherwise prepared himself to execute the works. The Contractor argues for extension of time and reimbursement of costs and the Employer is seeking liquidated damages. In these circumstances, it is submitted that the just result is similar to that set out above. The Contractor should receive an extension of time relieving him from liquidated damages but should not receive reimbursement of costs for prolongation which would have been experienced in any event. The Employer should not be compensated for his inability to take possession of the project on time when, due to his Engineer's default, such possession would not in any event have been possible.

The question then arises whether the conditions steer the Engineer or an arbitrator to particular conclusions or whether the conditions leave the Engineer or arbitrator free to attempt to do justice on a case by case basis. Under the

current sub-clause, the governing criterion is that the event is "such as fairly to entitle the Contractor to an extension". The formula used elsewhere in clauses such as clause 6.4 (Delays and cost of delay of drawings), clause 27 (Fossils) and clause 42.2 (Failure to give possession) is "if the Contractor suffers delay and/or incurs costs from failure on the part of the Employer..." or "by reason of" the failure or instructions. As far as time is concerned, these clauses invariably refer to the "extension of time to which the Contractor is entitled under clause 44" thereby invoking the Engineer's or arbitrator's opinion as to fairness. As to the costs, the Contractor has an entitlement and the Engineer has an obligation to determine if costs have been incurred from or by reason of the event. Therefore, the Engineer is not being asked to consider fairness but merely to confine himself to causation. Thus, in the second example given above where late drawings and a defaulting subcontractor coincided, the principal costs incurred by the Contractor would be prolongation costs. The Engineer would have to decide whether those costs were incurred "by reason of" the late drawings. The just result, it has been submitted, is for the Contractor to receive an extension of time but no money in this situation. On the wording of the clauses granting time and costs, it is difficult to see that the Engineer is empowered to grant an extension of time without granting the consequential prolongation costs. It may be possible for