How to respond to an Extension of Time claim

An Extension of Time claim usually arrives as a substantial package: a claim narrative, a programme analysis and supporting documents, often with a prolongation cost claim to follow. The response matters, because the first substantive reply frames how the claim is assessed, negotiated or escalated.

This article sets out five areas commonly examined when an Extension of Time claim is reviewed: the contractual process, the event and its factual basis, the programme effect, concurrency and the period claimed. It also covers the weaknesses that commonly appear in responses. These are technical and contractual review areas, not universal legal prerequisites: what the contract requires in a particular case is a matter for its wording and the client's legal advisers.

This article provides general technical information on programme and delay analysis. Contractual and legal consequences depend on the applicable contract, amendments, governing law and facts, and should be reviewed with the appropriate legal advisers.

Start with the applicable contractual process

Before any analysis, establish what the contract requires of the responding party. Response obligations differ between forms, editions and amendments:

• NEC: under standard NEC mechanisms the Project Manager has contractual periods in which to respond to notifications and quotations. Where a response is not issued, the contractor may need to notify that failure, and deemed acceptance may arise only if the further contractual process and period then expire without a response. The precise mechanism depends on the NEC edition, the selected contract and options, any amendments and the communication involved.
• JCT: under many JCT forms the contract administrator is required to form an opinion on delay to completion within a period after particulars are provided. The duty and its timescale depend on the form, edition and amendments used.
• FIDIC: under recent FIDIC forms the Engineer's determination procedure carries its own timescales and consultation requirements. The applicable edition and any amendments govern.

Establish the response dates before opening the analysis, and check the applicable wording rather than relying on summaries of it.

Five areas to examine

1. Contractual process and notification

Was the event notified in the manner and within the time the contract requires? Notice timing, content and consequences should be checked against the actual contract. Under NEC, compensation events that the contractor was required to notify may be subject to a contractual time bar, with exceptions depending on who was required to notify the event and the circumstances involved. The consequences of late or incomplete notice depend on the wording and the facts. Apparent notification or time-bar issues should be identified for the client and its legal advisers.

2. Event and factual basis

Each claimed event should be connected to the relevant instruction, occurrence or circumstance; the activity or work affected; the actual or forecast programme consequence; and the supporting project records. Submissions are easier to assess where those connections are set out expressly. Where a claim presents a list of events on one side and a total delay on the other, the reviewer's first task is to establish whether the connecting analysis exists.

3. Programme effect and criticality

Delay to an activity is not automatically delay to completion. The analysis should establish whether, and when, the affected work was critical or near-critical to completion, recognising that the critical path can move as the project proceeds. Float consumption may still matter: it can affect later criticality, mitigation, sequencing and cost, and float ownership and its consequences may depend on the contract. The integrity of the baseline, the programme logic and the treatment of float all warrant review.

4. Concurrency and other causes of delay

Was other delay, including delay for which the claiming party is responsible, affecting the same period? Concurrency requires careful analysis of timing, criticality and the effect of each event, and its contractual and legal consequences require separate consideration. We have written about this in more detail in Concurrent delay: what the SCL Protocol says and how to analyse it.

5. The period claimed and the supporting analysis

Does the analysis produce the period claimed? The review should test the period produced by the analysis itself, the calendars and working-time assumptions, overlaps between events, whether the reported result matches the underlying model, and whether forecast and actual information have been combined appropriately. Prolongation and other financial claims are related but separate: the technical assessment of time should be kept distinct from quantum.

Common weaknesses in claim responses

1. Missing the contractual response dates, so the contractual process runs ahead of the technical review.
2. A blanket acceptance or rejection issued without analysis. Acknowledging what the records support, precisely and in writing, makes the remaining points easier to maintain.
3. Criticising a methodology without explaining the technical consequence: a response is more useful when it identifies what difference the criticism makes to the assessed period.
4. Not reviewing the respondent's own records: progress reports, meeting minutes and correspondence should be checked before relying on the claim's version of events.
5. Not identifying the further information required to complete the assessment.
6. Blurring technical assessment with legal conclusions that belong with the legal advisers.

A response may usefully identify: matters supported by the records; matters requiring more information; matters involving assumptions or uncertainty; and matters not demonstrated by the available information.

A response is not a rebuttal of everything. It is a clear statement of what the records support, what needs further information and what has not been demonstrated.

When to involve a delay analyst

Early involvement is most useful before the first substantive technical position is issued, while the response can still be shaped by what the records show. A specialist technical review at that stage can establish what the claim's analysis does and does not demonstrate, and what further information should be requested. How we select and explain analysis methods is set out on our Approach page.

References and further reading

• Society of Construction Law, Delay and Disruption Protocol, 2nd Edition (2017): scl.org.uk
• AACE International, Recommended Practice 29R-03, Forensic Schedule Analysis: aacei.org
• Official NEC contract guidance on compensation event procedures: neccontract.com

Related services: Claims Review and Rebuttal · Extension of Time Claims and Delay Support
Related insights: Concurrent delay: what the SCL Protocol says and how to analyse it · Time Impact Analysis and Windows Analysis: choosing an appropriate method