12.

4 Time Control 245

12.4 Time Control

One of the underlying principles of all FIDIC forms of contract is the avoidance and
reduction of the amount of change that occurs on construction projects. On the other
hand FIDIC recognises that change is inevitable, even though many changes can
generally be avoided through good planning. Once having accepted that changes
are inevitable a management tool for time survey and time management is neces-
sary. This is the reason why FIDIC requires the Contractor to provide a Programme.
The Programme is one of the most important tools for the Engineer and the parties
to the contract during the whole course of the Works.
The Programme as referred to in Sub-Clause 8.3 is far more than a simple bar
chart. It shows the intended order and duration of all activities which are necessary
in order to complete the Works. It shall also include all resources needed for each
activity. It is a management tool which must be updated regularly.
According to Sub-Clause 8.3 the Contractor shall submit a Programme within 28
days after the Commencement date. It is submitted to the Engineer who may reject it
within 21 days after having received it. By doing so he must state the extent to which
it does not comply with the Contract. If the Engineer remains silent, the Contractor
shall proceed in accordance with the Programme. As soon as the Programme is
inconsistent with actual progress or with the Contractor’s obligations the Contractor
shall submit a revised Programme. Thus the Programme does not become accepted
by the Employer, but it is nevertheless binding on the Contractor.
Each Programme shall include the following information:
(a) The order in which the Contractor intends to carry out the Works, including the
anticipated timing of each stage of design (if any), Contractor’s Documents,
procurement, manufacture, inspection, delivery to Site, construction, erection,
testing, commissioning and trial operation
(b) The periods for reviews under Sub-Clause 5.2 [Contractor’s Documents] and
for any other submissions, approvals and consents specified in the Employer’s
Requirements – each of these stages for work by each nominated Subcontractor
(as defined in Clause 5 [Nominated Subcontractors])
(c) The sequence and timing of inspections and tests specified in the Contract
(d) A supporting report which includes:
(1) A general description of the methods which the Contractor intends to
adopt, and of the major stages, in the execution of the Works
(2) Details showing the Contractor’s reasonable estimate of the number of
each class of Contractor’s Personnel and of each type of Contractor’s
Equipment, required on the Site for each major stage

Thus the Programme includes full information about the anticipated timing of each
stage of work, including details about delivery of material and goods, procurement,
design, testing, etc. There is therefore a strong incentive to go through the exercise
of forecasting all stages of work, which are necessary to complete the Works.
246 12 Time for Completion

The Programme enables the Engineer to assess claims for Time extension and to
instruct acceleration, if necessary.
The Programme has to show the Commencement date and the anticipated
date for completion. If the Contractor encounters difficulties which result in delay
or disruption then there are two possibilities. Either he encounters a difficulty which
is at his risk, in which case he has to revise the Programme and to show how he
plans to recover the delay, or else he suffers delay from an event which is at the risk
of the Employer. He is then entitled to claim for Time extension. Once Time
extension has been granted, he shall submit a revised Programme showing the
new date for completion. In any case the Contractor shall submit a revised
Programme as soon as the Programme becomes inconsistent with actual progress
or with the Contractor’s obligations. However there is no requirement for a regular
and subsequent update of the Programme. As long as the Programme is consistent
with actual progress and with the Contractor’s obligations it can be maintained. But
if actual progress is too slow or if progress has fallen behind the current Programme
the Engineer may instruct the Contractor to submit a revised Programme in accor-
dance with Sub-Clause 8.6. However he shall not do so if the delay is caused as a
result of an event listed in Sub-Clause 8.4. In so far it is common understanding that
Sub-Clause 8.6 applies if and when the Contractor has failed to give notice of a
claim arising from an event listed in Sub-Clause 8.4.
It is critical to know whether the Contract provides constraints on how the
Contractor performs the work. If so, the Contractor shall then reflect these con-
straints in his planning of the order and timing of the Works. However, if the
Employer or the Engineer introduces new constraints during the course of the
Works, this will be considered to be a change to the Works or the Employer’s
requirements and thus constitute a variation.
In any case the Engineer has the duty to review and the power to reject the
Programme once it has been submitted by the Contractor. However, he should not
reject the Programme for other reasons than non compliance with the Contract. As
the responsibility for scheduling the works lays with the Contractor the Engineer
should not put further constraints on the Contractor. Thus its means of control is in
principle limited to the following questions:
l Does the Programme comply with all contractual obligations?
l Does the Programme comply with milestones, or restraints on working hours or
methods?
l Does the Programme comply with approval requirements as to the design?
l Does the Programme comply with current determinations, instructions, etc.?
l Is the entire scope of the work represented?
l Are there any obvious errors in the programme related to the sequence or timing
of the works?
l Does the Programme comply with actual progress?
l Does the Programme comply with testing requirements?
However he should not ask whether any activity durations are questionably
too long, or too short for the scope of work they represent unless it becomes obvious
12.6 Concurrent Delay 247

that the Works will not be completed within Time for Completion. The Engineer
should be aware of the fact that any instructions may constitute a Variation.

12.5 Extension of Time

There are two propositions: (1) If one finds in the contract the time limited within
which the Contractor is to do this work that means not only that he is to do it within
that time, but it means also that he is to have that time within which to do it. (2)
When parties agree that a contract is to be implemented by a fixed date, conduct by
the Employer which is already authorised by the contract (e.g. issuing variation
orders in accordance with Clause 13) surely cannot alter or nullify the agreed Time
for Completion.
It is also for the aforementioned reasons that building contracts nowadays almost
invariably contain express provisions making allowance for extensions of time.
However, when the conduct of the Employer is unlawful (and constitutes a breach
of contract) the position may be that a debtor is generally excused from performing
an obligation on time if his creditor wrongfully prevented him from doing so, in
particular if the decision about extra time rests with the Employer who then
becomes arbiter of, and gains an advantage from, his own – wrong. It is for this
reason that Sub-Clause 8.4 provides for extension of Time for Completion not only
in the event of additional or changed work but also in the event of acts of unlawful
prevention and subject to further determination by the Engineer.
Apart from Sub-Clause 8.4 various other Sub-Clauses provide for extension of
Time for Completion. A careful Contractor will inter alia identify the following
events which may cause an entitlement to additional time:
l Delayed drawings (Red Book only) (Sub-Clause 1.9)
l Lack of access to and possession of the Site (Sub-Clause 2.1)
l Adverse physical conditions (Sub-Clause 4.12)
l Fossils (Sub-Clause 4.24)
l Delayed tests (Sub-Clause 7.4)
l Interference with Tests on Completion (Sub-Clause 10.3)
l Changes in legislation (Sub-Clause 13.7)

12.6 Concurrent Delay

Delay and disruption occur almost inevitably. According to Sub-Clause 4.21 the
Contractor must compare actual progress and planned progress showing details of
any event or circumstance which may jeopardise completion. Unfortunately it is
often the case that concurrent causes of delay occur. This is the case if delay occurs
when Contractor and Employer have both caused independent delays. In other
words, a concurrent delay appears when two or more causes of delay overlap.