Can EOT be granted after the completion date?

#ConstructionLaw101

Recently, someone sent me a screenshot asking the question above. I'm not ChatGPT, but since someone asked, let's try to give an answer based on what we know. First, we need to read what the contract says.

In clause 23.10 of PAM 2018, it's pretty specific and straightforward, stating:

“The Architect may within twelve (12) Weeks after the date of Practical Completion review and fix a Completion Date later than that previously fixed…”

While some contract clauses are clear about when the Contract Administrator should grant an Extension of Time (EOT), others are a bit vague. For example, clause 43.1 of PWD203A (Rev.1/2010) isn't specific about when EOT can be given:

“….then the SO may if he is of the opinion that the extension of time should be granted, so soon as he is able to estimate the length of the delay beyond the date or time aforesaid issue a Certificate of Delay and Extension of Time giving a fair reasonable extension of time for completion of the Works.”

In the past, there have been discussions about when EOT should be granted in contracts that aren't explicitly stated. A contract clause in the Miller v. London County Council (1934) case stated:

“It shall be lawful for the Engineer, if he thinks fit, to grant from time to time, and at any time or times, by writing under his hand such extension of time for completion of the work and that either prospectively or retrospectively and to assign such other time or times for completion as to him may seem reasonable.”

However, the court was strict and didn't allow the Engineer to grant EOT after the completion date, citing that the phrase 'either prospectively or retrospectively' didn't grant the Engineer the power to give EOT after the completion date.

In the subsequent case of Amalgamated Building Contractors Ltd v. Waltham Holy Cross Urban District Council (1952), the contract stated, “the Architect shall make a fair and reasonable extension of time for completion of the works”. It sounded similar to PWD203A, right? Hahaha…

The contractor argued that the clause meant the architect should provide a future completion date for the contractor, not a date that has already passed. Lord Denning, the judge, disagreed with the contractor. He said that practically, considering it from a business perspective, the architect should be able to give EOT even retrospectively (meaning after the completion date) – as in that case, since delays could arise until the last minute of completion, the architect must be able to grant EOT after completion. So, Lord Denning differed from the Miller case before that.

But Lord Denning also mentioned (more or less), in principle, there's a difference if the delay is caused by the contract administrator or owner, like being slow to provide the site or issuing variation orders, and so on. When such things happen, the Contract Time might cease to bind the contractor because the contract administrator or owner can't claim their 'right' in the contract if they themselves have faults causing the contract terms (i.e., completion on time) to be impossible for the contractor to fulfil. Therefore, EOT after the completion date can only be granted for delays due to neutral events beyond the control of the contract administrator or owner.

YA Lim Chong Fong discusses this extensively in his book, so go check it out.

Reference:

[1] PWD 203A (Rev-1/2010)

[2] PAM 2018 (With Quantities)

[3] Sundra Rajoo, Dato' W.S.W. Davidson, Ir. Harbans Singh K.S., “The PAM 2006 Standard Form of Building Contract”, 2010

[4] YA Lim Chong Fong, Malaysian PWD Form Of Construction Contract 2nd Ed, 2011

[5] Roger Knowles. 200 Contractual Problems and their Solutions. 3rd Edition, 2012

[6] Notes from Sr Johar Bahar, KAS Jurukur Bahan Perak. Can't remember when he gave it to me.

[7] Amalgamated Building Contractors Ltd v. Waltham Holy Cross Urban District Council (1952) – capaian di https://vlex.co.uk/vid/amalgamated-building-contractors-ltd-793872629