Never Get Time-Barred Again!

…Well, almost never! While some rare situations may lie totally out of your control, they’re definitely the minority. For the most part, you CAN prevent being time-barred – yes, you! Here are my top 5 tips. 

BUT FIRST: in this article, I’ve provided loose, “layperson’s” explanations of some legal concepts and terms. This shouldn’t be considered legal advice – if you have a law-related question it’s always best to speak to a member of the legal profession … or a consultancy with lawyers on the team, like us! Shoot me a PM or email me, [email protected], and I’ll find someone who can help. 

Getting time-barred is about as fun as getting a root canal. I’ve put together five tips to help you avoid what can be a truly excruciating experience. 

During Tender

1. Is your contract based on an Australian Standard? Knowing which one can help. 

• The different Australian Standards deal with time bars very differently – for example, AS 4000 has basically no time bars, while AS 2124 is another story all together!
• Time bars can still be added in as amendments to these forms of contract, so it’s still important to read the entire contract

2. The way your contract defines various terms can affect your ability to claim an EOT. Make sure you check the specific definitions given to these concepts within the context of your contract:

• Latent conditions – generally speaking, site conditions that you could not have anticipated, even with a reasonable amount of investigation before the project begins
• Qualifying cause of delay – a reason that will entitle you to claim for an EOT under your contract
• Compensable cause – something that was the fault of the other party in the contract, or another contractor or agent not employed by you

3. Get an expert to make sure it’s actually a time bar.

• Most contracts will have a time frame in which claims should be submitted, following the contractor being made aware of a delay
• This doesn’t necessarily equate to a time bar though – in many cases, the claim will not be barred unless the delay has caused a loss for the client, and an extra clause is needed to explicitly invalidate claims that haven’t been made within that time frame
• It can be hard to know which is which, so get a contracts expert to check for you

4. If it is a time bar, you may be able to negotiate.

• As above shows, there are alternatives to time bars that effectively have the same end result (efficiency) without the risk to you
• You may be able to negotiate an amendment to the contract in your favour
• An experienced claims expert or QS will have a good idea as to whether or not the client is likely to agree to negotiate on that clause or not, which makes you much less annoying to the client – win-win!

During the Project

5. Keep up your end of the deal. 

• Once the contract is agreed upon, make sure your PMs, supers etc know the practical ramifications and have a process in place, ready to go

So there you have it – five steps to avoid being time-barred! Follow these for a pain-free tender and project. 

Now, if only I could help with your root canal…