Regularly and diligently - Revision history

Designing Buildings at 08:13, 30 March 2022

2022-03-30T08:13:16Z

← Older revision		Revision as of 08:13, 30 March 2022
Line 29:		Line 29:
	* On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.		* On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.

−	= Related articles =	+	= Related articles on Designing Buildings =

	* Duty to warn.		* Duty to warn.

Designing Buildings at 06:16, 2 September 2021

2021-09-02T06:16:38Z

← Older revision		Revision as of 06:16, 2 September 2021
Line 29:		Line 29:
	* On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.		* On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.

−	~~= Find out more =~~	+	= Related articles =
−		+
−	=== Related articles ~~on Designing Buildings Wiki ==~~=	+

	* Duty to warn.		* Duty to warn.

Designing Buildings at 09:49, 5 October 2020

2020-10-05T09:49:30Z

← Older revision		Revision as of 09:49, 5 October 2020
Line 45:		Line 45:
	* Progress in construction.		* Progress in construction.

−	[[Category:Construction_management]] [[Category:Contracts_/_payment]]	+	[[Category:DCN_Case_Law]] [[Category:DCN_Definition]] [[Category:DCN_Guidance]] [[Category:Construction_management]] [[Category:Contracts_/_payment]]

86.41.215.59 at 16:02, 10 December 2018

2018-12-10T16:02:51Z

← Older revision		Revision as of 16:02, 10 December 2018
Line 1:		Line 1:
−	~~All~~ construction contracts set a date by which the works must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).	+	Most construction contracts set a date by which the works must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).

	The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the employer can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the employer. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the employer.		The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the employer can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the employer. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the employer.

86.41.215.59 at 16:00, 10 December 2018

2018-12-10T16:00:49Z

← Older revision		Revision as of 16:00, 10 December 2018
Line 1:		Line 1:
−	~~Most~~ construction contracts set a date by which the works must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).	+	All construction contracts set a date by which the works must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).

	The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the employer can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the employer. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the employer.		The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the employer can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the employer. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the employer.

Designing Buildings at 11:25, 6 June 2017

2017-06-06T11:25:29Z

← Older revision		Revision as of 11:25, 6 June 2017
Line 1:		Line 1:
−
	Most construction contracts set a date by which the works must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).		Most construction contracts set a date by which the works must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).

	The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the employer can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the employer. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the employer.		The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the employer can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the employer. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the employer.

−	However, unless the contract includes other express provisions requiring that the works are carried out in a particular way, the contractor can achieve the completion date, by, for example, starting slowly and then speeding up, or by working sporadically. There is no implied term requiring that the works are carried out to a ~~specifc~~ timetable (see Leander Construction v Mulalley 2012). This can cause problems for the employer, both in terms of being reassured during the course of the works that the completion date will be achieved, and in programming their cash flow so that payments can be made.	+	However, unless the contract includes other express provisions requiring that the works are carried out in a particular way, the contractor can achieve the completion date, by, for example, starting slowly and then speeding up, or by working sporadically. There is no implied term requiring that the works are carried out to a specific timetable (see Leander Construction v Mulalley 2012). This can cause problems for the employer, both in terms of being reassured during the course of the works that the completion date will be achieved, and in programming their cash flow so that payments can be made.

	Some contracts may provide for sectional completion, setting different completion dates for different sections of the works. This is common on large projects, allowing the client to take possession of completed parts whilst construction continues on others. Other contracts (such as NEC3) define key dates that the contractor must achieve during the progress of the works.		Some contracts may provide for sectional completion, setting different completion dates for different sections of the works. This is common on large projects, allowing the client to take possession of completed parts whilst construction continues on others. Other contracts (such as NEC3) define key dates that the contractor must achieve during the progress of the works.
Line 19:		Line 18:

	Clearly, care must be taken when exercising rights under these clauses. Construction contracts do include provisions for dealing with delays, and not all delays will be due to the fault of the contractor:		Clearly, care must be taken when exercising rights under these clauses. Construction contracts do include provisions for dealing with delays, and not all delays will be due to the fault of the contractor:
−	*Extensions of time allow the completion date to be moved due to causes that are not the contractor’s fault, although the contractor is required to prevent or mitigate the delay and any resulting loss, even where the fault is not their own.	+
−	*If the completion date is missed, the employer can claim liquidated damages.	+	* Extensions of time allow the completion date to be moved due to causes that are not the contractor’s fault, although the contractor is required to prevent or mitigate the delay and any resulting loss, even where the fault is not their own.
−	*There may be situations in which it is in the employers’ interests to suspend the works temporarily.	+	* If the completion date is missed, the employer can claim liquidated damages.
		+	* There may be situations in which it is in the employers’ interests to suspend the works temporarily.

	Notes.		Notes.
−	*The term ‘Time is of the essence’ refers to a contractual position in which if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated. This is not generally applicable to construction contracts unless there is an express term.	+
−	*The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date. They may however still be bound by an obligation to proceed regularly and diligently or to complete the works within a reasonable time.	+	* The term ‘Time is of the essence’ refers to a contractual position in which if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated. This is not generally applicable to construction contracts unless there is an express term.
−	*On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.	+	* The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date. They may however still be bound by an obligation to proceed regularly and diligently or to complete the works within a reasonable time.
		+	* On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.

	= Find out more =		= Find out more =

	=== Related articles on Designing Buildings Wiki ===		=== Related articles on Designing Buildings Wiki ===
−	*Duty to warn.
−	*Extension of time.
−	*Suspension of performance.
−	*Termination.
−	*Time at large.
−	*Time is of the essence.
−	*Concurrent delay.
−	*Delays on construction projects.
−	*Acceleration.
−	*Programme.

−	~~[[Category:Contracts_/_payment]]~~	+	* Duty to warn.
−	[[Category:Construction_management]]	+	* Extension of time.
−	[[Category:Contracts_/_payment]]	+	* Suspension of performance.
		+	* Termination.
		+	* Time at large.
		+	* Time is of the essence.
		+	* Concurrent delay.
		+	* Delays on construction projects.
		+	* Acceleration.
		+	* Programme.
		+	* Progress in construction.
		+
		+	[[Category:Construction_management]] [[Category:Contracts_/_payment]]

Designing Buildings at 17:12, 17 January 2014

2014-01-17T17:12:57Z

← Older revision		Revision as of 17:12, 17 January 2014
Line 1:		Line 1:

−	Most construction contracts set a date by which the works ~~described in the contract~~ must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).	+	Most construction contracts set a date by which the works must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).

−	The completion date ~~may be altered during~~ the ~~course of~~ the contract, ~~for example if~~ the date the ~~contractor takes~~ possession of the site ~~to begin construction is delayed~~, ~~or if an extension of time~~ is ~~granted due~~ to ~~delays~~ to the ~~works that are not the contractor’s fault~~.	+	The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the employer can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the employer. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the employer.

−	The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the client can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the client. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the client.	+	However, unless the contract includes other express provisions requiring that the works are carried out in a particular way, the contractor can achieve the completion date, by, for example, starting slowly and then speeding up, or by working sporadically. There is no implied term requiring that the works are carried out to a specifc timetable (see Leander Construction v Mulalley 2012). This can cause problems for the employer, both in terms of being reassured during the course of the works that the completion date will be achieved, and in programming their cash flow so that payments can be made.
−		+
−	However, unless the contract includes other express provisions requiring that the works are carried out in a particular way, ~~then~~ the contractor can achieve the completion date, by, for example, starting slowly and then speeding up, or by working sporadically. There is no implied term requiring the works are carried out to a specifc timetable (see Leander Construction v Mulalley 2012). This can cause problems for the employer, both in terms of being reassured during the course of the works that the completion date will be achieved, and in programming their cash flow so that payments can be made.	+

	Some contracts may provide for sectional completion, setting different completion dates for different sections of the works. This is common on large projects, allowing the client to take possession of completed parts whilst construction continues on others. Other contracts (such as NEC3) define key dates that the contractor must achieve during the progress of the works.		Some contracts may provide for sectional completion, setting different completion dates for different sections of the works. This is common on large projects, allowing the client to take possession of completed parts whilst construction continues on others. Other contracts (such as NEC3) define key dates that the contractor must achieve during the progress of the works.

−	However, many contracts, such as the JCT standard form contract require that the contractor proceeds ‘regularly and diligently’ with the works, irrespective of whether they are likely to achieve the completion date. They cannot for example work sporadically, or slow down if it becomes apparent that they will beat the completion date. If they fail to proceed ‘regularly and diligently’ with the works, the contract administrator may issue a written warning notice, and if they continue to default, the contract administrator may give notice determining the employment of the contractor. The employer may also be able to claim damages if they can demonstrate that they have suffered a loss.	+	However, many contracts, such as the JCT standard form of contract require that the contractor proceeds ‘regularly and diligently’ with the works, irrespective of whether they are likely to achieve the completion date. They cannot for example work sporadically, or slow down if it becomes apparent that they will beat the completion date. If they fail to proceed ‘regularly and diligently’ with the works, the contract administrator may issue a written warning notice, and if they continue to default, the contract administrator may give notice determining the employment of the contractor. The employer may also be able to claim damages if they can demonstrate that they have suffered a loss.

	In the case of West Faulkner Associates v London Borough of Newham, the Court of Appeal held that the term ‘regularly and diligently’ meant that:		In the case of West Faulkner Associates v London Borough of Newham, the Court of Appeal held that the term ‘regularly and diligently’ meant that:
Line 16:		Line 14:
	“…the obligation upon the contractor is essentially to proceed continuously, industriously and efficiently with appropriate physical resources so as to progress the works steadily towards completion substantially in accordance with the contract requirements as to time, sequence and quality of work.”		“…the obligation upon the contractor is essentially to proceed continuously, industriously and efficiently with appropriate physical resources so as to progress the works steadily towards completion substantially in accordance with the contract requirements as to time, sequence and quality of work.”

−	The contractor's master programme is not part of the contract documents, and is not enforceable under all forms of contract, however, failure of the contractor to meet the dates on the contractor’s master programme might be evidence that they are not proceeding regularly and diligently.	+	The contractor's master programme is not part of the contract documents, and is not enforceable under all forms of contract, however, failure by the contractor to meet the dates on the contractor’s master programme might be evidence that they are not proceeding regularly and diligently.

	Sub-contracts may include similar obligations, and for example, JCT subcontracts require sub-contractor progress to be reasonably in accordance with the progress of the main contract.		Sub-contracts may include similar obligations, and for example, JCT subcontracts require sub-contractor progress to be reasonably in accordance with the progress of the main contract.
Line 23:		Line 21:
	*Extensions of time allow the completion date to be moved due to causes that are not the contractor’s fault, although the contractor is required to prevent or mitigate the delay and any resulting loss, even where the fault is not their own.		*Extensions of time allow the completion date to be moved due to causes that are not the contractor’s fault, although the contractor is required to prevent or mitigate the delay and any resulting loss, even where the fault is not their own.
	*If the completion date is missed, the employer can claim liquidated damages.		*If the completion date is missed, the employer can claim liquidated damages.
−	*There may ~~also~~ be situations in which it is in the employers’ interests to suspend the works temporarily.	+	*There may be situations in which it is in the employers’ interests to suspend the works temporarily.

	Notes.		Notes.
	*The term ‘Time is of the essence’ refers to a contractual position in which if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated. This is not generally applicable to construction contracts unless there is an express term.		*The term ‘Time is of the essence’ refers to a contractual position in which if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated. This is not generally applicable to construction contracts unless there is an express term.
	*The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date. They may however still be bound by an obligation to proceed regularly and diligently or to complete the works within a reasonable time.		*The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date. They may however still be bound by an obligation to proceed regularly and diligently or to complete the works within a reasonable time.
−	*On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project..	+	*On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.

	= Find out more =		= Find out more =

Designing Buildings at 17:05, 17 January 2014

2014-01-17T17:05:32Z

← Older revision		Revision as of 17:05, 17 January 2014
Line 1:		Line 1:

−	Most construction contracts set a date by which the works described in the contract must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. NB If no date or period is defined, a term will be implied ~~by the Supply of Goods and Services Act~~ that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).	+	Most construction contracts set a date by which the works described in the contract must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. If no date or period is defined, a term will be implied that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).

−	The completion date ~~is not~~ the ~~date by which all obligations under~~ the contract ~~have to be discharged~~, ~~but~~ the date ~~by which 'practical completion' must be certified. That is, the date by which the works have been completed and~~ the ~~client can take~~ possession of the site, ~~albeit there may be very minor items outstanding~~ that do not ~~affect beneficial occupancy by~~ the ~~client~~.	+	The completion date may be altered during the course of the contract, for example if the date the contractor takes possession of the site to begin construction is delayed, or if an extension of time is granted due to delays to the works that are not the contractor’s fault.

−	The completion date ~~may be altered during~~ the ~~course of~~ the contract, ~~for example if~~ the date the ~~contractor takes~~ possession of the site ~~to begin construction is delayed~~, ~~or if an extension of time is granted due to delays to the works~~ that ~~are~~ not the ~~contractor’s fault~~. ~~Practical~~ completion ~~therefore must be~~ certified by the most recently agreed completion date.	+	The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the client can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the client. If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the client.

−	~~If practical completion is not certified by~~ the ~~most recently agreed~~ completion date, then the ~~contractor may be liable~~ to ~~pay liquidated and ascertained damages to the client~~. ~~These are pre-determined damages set at~~ the ~~time that the contract is entered into~~, ~~based on a calculation~~ of the ~~actual loss~~ that ~~the client is likely to incur if the contractor fails to meet~~ the completion date~~. Some contracts require~~ that ~~a certificate of non-completion is issued as a pre-requisite to deducting liquidated and ascertained damages~~.	+	However, unless the contract includes other express provisions requiring that the works are carried out in a particular way, then the contractor can achieve the completion date, by, for example, starting slowly and then speeding up, or by working sporadically. There is no implied term requiring the works are carried out to a specifc timetable (see Leander Construction v Mulalley 2012). This can cause problems for the employer, both in terms of being reassured during the course of the works that the completion date will be achieved, and in programming their cash flow so that payments can be made.

−	~~However~~, ~~unless the contract includes other express provisions requiring that~~ the works ~~are carried out in a particular way~~, ~~then~~ the contractor ~~can~~ achieve the ~~completion date, by, for example, starting slowly and then speeding up, or working sporadically. There is no implied term requiring~~ the works ~~to be carried out in any particular way (see Leander Construction v Mulalley 2012)~~.	+	Some contracts may provide for sectional completion, setting different completion dates for different sections of the works. This is common on large projects, allowing the client to take possession of completed parts whilst construction continues on others. Other contracts (such as NEC3) define key dates that the contractor must achieve during the progress of the works.

−	~~This can cause problems for~~ the ~~employer~~, ~~both in terms~~ of ~~being reassured that~~ the completion date will ~~be achieved~~, and ~~in programming their cash flow so that payments can~~ be ~~made~~.	+	However, many contracts, such as the JCT standard form contract require that the contractor proceeds ‘regularly and diligently’ with the works, irrespective of whether they are likely to achieve the completion date. They cannot for example work sporadically, or slow down if it becomes apparent that they will beat the completion date. If they fail to proceed ‘regularly and diligently’ with the works, the contract administrator may issue a written warning notice, and if they continue to default, the contract administrator may give notice determining the employment of the contractor. The employer may also be able to claim damages if they can demonstrate that they have suffered a loss.

−	Some contracts may provide for sectional completion, setting different completion dates for different sections of the works. This is common on large projects that are completed in sections, allowing the client to take possession of the completed parts whilst construction continues on others.	+	In the case of West Faulkner Associates v London Borough of Newham, the Court of Appeal held that the term ‘regularly and diligently’ meant that:
−		+
−	~~Other contracts (such as NEC3) define "Key Dates" that the contractor must achieve during the progress of the works.~~	+
−		+
−	However, many contracts, such as the JCT standard form contract require that the contractor proceeds ‘regularly and diligently’ with the works, irrespective of whether they are likely to achieve the completion date. They cannot for example simply slow down if it becomes apparent that they will beat the completion date. If fail to proceeds ‘regularly and diligently’ with the works, the contract administrator may issue a written warning notice, and if they continue to default, the contract administrator may give notice determining the employment of the contractor. The employer may be able to claim damages if they can demonstrate that they have suffered a loss.	+
−		+
−	In the case of West Faulkner Associates v London Borough of Newham, the Court of Appeal held that the term ‘regularly and diligently’ meant:	+

	“…the obligation upon the contractor is essentially to proceed continuously, industriously and efficiently with appropriate physical resources so as to progress the works steadily towards completion substantially in accordance with the contract requirements as to time, sequence and quality of work.”		“…the obligation upon the contractor is essentially to proceed continuously, industriously and efficiently with appropriate physical resources so as to progress the works steadily towards completion substantially in accordance with the contract requirements as to time, sequence and quality of work.”
Line 24:		Line 18:
	The contractor's master programme is not part of the contract documents, and is not enforceable under all forms of contract, however, failure of the contractor to meet the dates on the contractor’s master programme might be evidence that they are not proceeding regularly and diligently.		The contractor's master programme is not part of the contract documents, and is not enforceable under all forms of contract, however, failure of the contractor to meet the dates on the contractor’s master programme might be evidence that they are not proceeding regularly and diligently.

−	Sub-contracts may include similar obligations, and for example, JCT subcontracts require progress to be reasonably in accordance with the progress of the main contract ~~works.~~	+	Sub-contracts may include similar obligations, and for example, JCT subcontracts require sub-contractor progress to be reasonably in accordance with the progress of the main contract.
−		+
−	If the contractor does complete in time, but it can be shown that in breach of contract he has not proceeded regularly and diligently, then the Employer will have a remedy of substantial damages if he can establish a loss.	+

−	Clearly, care must be taken when exercising rights under ~~the~~ clauses. Construction contracts do include provisions for dealing with delays, and not all delays will be due to the fault of the contractor:	+	Clearly, care must be taken when exercising rights under these clauses. Construction contracts do include provisions for dealing with delays, and not all delays will be due to the fault of the contractor:
	*Extensions of time allow the completion date to be moved due to causes that are not the contractor’s fault, although the contractor is required to prevent or mitigate the delay and any resulting loss, even where the fault is not their own.		*Extensions of time allow the completion date to be moved due to causes that are not the contractor’s fault, although the contractor is required to prevent or mitigate the delay and any resulting loss, even where the fault is not their own.
	*If the completion date is missed, the employer can claim liquidated damages.		*If the completion date is missed, the employer can claim liquidated damages.
Line 36:		Line 28:
	*The term ‘Time is of the essence’ refers to a contractual position in which if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated. This is not generally applicable to construction contracts unless there is an express term.		*The term ‘Time is of the essence’ refers to a contractual position in which if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated. This is not generally applicable to construction contracts unless there is an express term.
	*The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date. They may however still be bound by an obligation to proceed regularly and diligently or to complete the works within a reasonable time.		*The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date. They may however still be bound by an obligation to proceed regularly and diligently or to complete the works within a reasonable time.
−	*On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project. In the case of a compensation event, if the contractor fails to give early warning of a possible delay to the works, or increase in costs, they will only be compensated for effects that would have remained anyway even if they had given early warning.	+	*On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project..

	= Find out more =		= Find out more =

Designing Buildings: Created page with " Most construction contracts set a date by which the works described in the contract must be completed. This is either by means of a defined completion date, or a commencement da..."

2014-01-17T16:56:50Z

Created page with " Most construction contracts set a date by which the works described in the contract must be completed. This is either by means of a defined completion date, or a commencement da..."

New page

Most construction contracts set a date by which the works described in the contract must be completed. This is either by means of a defined completion date, or a commencement date and a specified period for the works. NB If no date or period is defined, a term will be implied by the Supply of Goods and Services Act that the contractor must complete the works in a reasonable time (that is the time it would ordinarily take, plus an allowance for any extraordinary circumstances).

The completion date is not the date by which all obligations under the contract have to be discharged, but the date by which 'practical completion' must be certified. That is, the date by which the works have been completed and the client can take possession of the site, albeit there may be very minor items outstanding that do not affect beneficial occupancy by the client.

The completion date may be altered during the course of the contract, for example if the date the contractor takes possession of the site to begin construction is delayed, or if an extension of time is granted due to delays to the works that are not the contractor’s fault. Practical completion therefore must be certified by the most recently agreed completion date.

If practical completion is not certified by the most recently agreed completion date, then the contractor may be liable to pay liquidated and ascertained damages to the client. These are pre-determined damages set at the time that the contract is entered into, based on a calculation of the actual loss that the client is likely to incur if the contractor fails to meet the completion date. Some contracts require that a certificate of non-completion is issued as a pre-requisite to deducting liquidated and ascertained damages.

However, unless the contract includes other express provisions requiring that the works are carried out in a particular way, then the contractor can achieve the completion date, by, for example, starting slowly and then speeding up, or working sporadically. There is no implied term requiring the works to be carried out in any particular way (see Leander Construction v Mulalley 2012).

This can cause problems for the employer, both in terms of being reassured that the completion date will be achieved, and in programming their cash flow so that payments can be made.

Some contracts may provide for sectional completion, setting different completion dates for different sections of the works. This is common on large projects that are completed in sections, allowing the client to take possession of the completed parts whilst construction continues on others.

Other contracts (such as NEC3) define "Key Dates" that the contractor must achieve during the progress of the works.

However, many contracts, such as the JCT standard form contract require that the contractor proceeds ‘regularly and diligently’ with the works, irrespective of whether they are likely to achieve the completion date. They cannot for example simply slow down if it becomes apparent that they will beat the completion date. If fail to proceeds ‘regularly and diligently’ with the works, the contract administrator may issue a written warning notice, and if they continue to default, the contract administrator may give notice determining the employment of the contractor. The employer may be able to claim damages if they can demonstrate that they have suffered a loss.

In the case of West Faulkner Associates v London Borough of Newham, the Court of Appeal held that the term ‘regularly and diligently’ meant:

“…the obligation upon the contractor is essentially to proceed continuously, industriously and efficiently with appropriate physical resources so as to progress the works steadily towards completion substantially in accordance with the contract requirements as to time, sequence and quality of work.”

The contractor's master programme is not part of the contract documents, and is not enforceable under all forms of contract, however, failure of the contractor to meet the dates on the contractor’s master programme might be evidence that they are not proceeding regularly and diligently.

Sub-contracts may include similar obligations, and for example, JCT subcontracts require progress to be reasonably in accordance with the progress of the main contract works.

If the contractor does complete in time, but it can be shown that in breach of contract he has not proceeded regularly and diligently, then the Employer will have a remedy of substantial damages if he can establish a loss.

Clearly, care must be taken when exercising rights under the clauses. Construction contracts do include provisions for dealing with delays, and not all delays will be due to the fault of the contractor:
*Extensions of time allow the completion date to be moved due to causes that are not the contractor’s fault, although the contractor is required to prevent or mitigate the delay and any resulting loss, even where the fault is not their own.
*If the completion date is missed, the employer can claim liquidated damages.
*There may also be situations in which it is in the employers’ interests to suspend the works temporarily.

Notes.
*The term ‘Time is of the essence’ refers to a contractual position in which if one of the parties to the contract fails to complete their obligations by a specified date, then the other party can treat the contract as terminated. This is not generally applicable to construction contracts unless there is an express term.
*The phrase ‘time at large’ describes the situation where there is no date for completion, or where the date for completion has become invalid. The contractor is then no longer bound by the obligation to complete the works by a certain date. They may however still be bound by an obligation to proceed regularly and diligently or to complete the works within a reasonable time.
*On NEC contracts both parties must give early warning of anything that may delay the works, or increase costs. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project. In the case of a compensation event, if the contractor fails to give early warning of a possible delay to the works, or increase in costs, they will only be compensated for effects that would have remained anyway even if they had given early warning.

= Find out more =

=== Related articles on Designing Buildings Wiki ===
*Duty to warn.
*Extension of time.
*Suspension of performance.
*Termination.
*Time at large.
*Time is of the essence.
*Concurrent delay.
*Delays on construction projects.
*Acceleration.
*Programme.

[[Category:Contracts_/_payment]]
[[Category:Construction_management]]
[[Category:Contracts_/_payment]]