In construction project management, delays are almost inevitable. However, absorbing the consequences of a delay that is not your fault can be financially devastating. This is where the Extension of Time, or EOT, comes into play.

A well-structured EOT claim is the legal and contractual mechanism through which a contractor requests more time to complete the works, thereby avoiding delay penalties, also known as Liquidated Damages or LADs.

The 4 pillars of a successful EOT claim

For a client to approve an extension request, it cannot be based on complaints; it must be based on the contract and objective data. The EOT must necessarily comply with these four pillars:

A. Strict notification deadlines

This is the number one reason why claims are rejected. The vast majority of modern construction contracts require the contractor to notify the client within a very specific period after becoming aware of the event affecting the critical path, usually 7, 14 or 28 days. If this limit is exceeded, the right to claim may be completely lost, no matter how fair the case is, although arbitration may still remain an option.

  • Golden rule: Always notify in writing and on time. It is preferable to send an early notice stating that more details will follow than to wait until all data is available and submit it late.

B. Demonstrable impact on the critical path

Not all delays entitle the contractor to an EOT. If an event delays an activity that has float and does not affect the overall project completion date, there is no EOT. It must be unequivocally demonstrated that the event pushed the project's critical path. It is advisable to generate some type of simple Gantt chart explaining graphically how the event impacted the critical path.

  • The Impacted As-Planned method: This is one of the most accepted and simplest methods. It consists of taking the original approved schedule, the as-planned programme, and inserting the delay event into it to demonstrate mathematically how the final date moves to the right.

C. The cause of delay, or causation

The exact contract clause that gives entitlement to the EOT must be referenced. Typical causes include:

  • Scope changes, variations or change orders by the client.
  • Exceptionally adverse weather conditions, such as floods or hurricanes, not ordinary rain.
  • Delays in drawing approvals or site handover by the client.
  • Force majeure.

D. Evidence of mitigation

Contracts require the contractor not to remain idle. It must be demonstrated that reasonable measures were taken to minimise the impact of the delay, for example resequencing subtasks or reallocating personnel to unaffected areas. Mitigation does not mean that the contractor must assume extra costs to minimise the impact.

Common mistakes to avoid

  • Relying on verbal agreements: If the client says on site, do not worry about the delay, we will sort it out later, that has no legal validity in 99 percent of contracts. If it is not in writing, it does not exist.
  • Waiting until the end of the project to claim: Accumulating all delays and submitting a global EOT at the end of the works almost always results in rejection. Claims must be submitted as the events occur.
  • Confusing EOT with variation: A variation is a change in scope that usually brings costs. An EOT is time. Even if a variation causes an EOT, the EOT must be claimed explicitly and separately.
  • Poorly managed concurrent delays: If you are delayed because of lack of materials, which is your fault, and at the same time there is torrential rain for one week, which is a valid cause, you have a concurrent delay. In general, this gives an extension of time, meaning no penalties are paid, but it does not give financial compensation.
  • Not including appendices: An EOT without evidence is only an opinion. It is vital to attach daily records, site diaries, dated photographs and schedule updates showing the critical path.
  • Forgetting prolongation costs: An EOT gives time and delays penalties, but it does not always give money. However, it is vital to reserve the right to claim prolongation costs, such as overheads, crane rental or extra supervision, in a separate document. These should not be confused with direct costs, which can only be claimed by justifying disruption to the work causing a loss of productivity, something much more difficult to prove.