Many parties to construction contracts in the Middle East assume that an extension of time (EOT) is a benefit granted to a contractor when things go wrong. The Society of Construction Law Delay and Disruption Protocol takes a more nuanced view, and one that delay expert witnesses are routinely called upon to explain to tribunals.
Core Principle 2 of the SCL Protocol states that the benefit of an EOT is to relieve the contractor of liability for damages for delay (typically liquidated damages) for any period prior to the extended completion date, and to establish a new contract completion date by which the contractor must complete the works. Importantly, the Protocol emphasises that the EOT mechanism is for the benefit of both parties: it preserves the employer's right to liquidated damages by preventing time being set 'at large'.
Setting time 'at large' is a common law concept that arises where, due to acts of prevention by the employer, no fixed completion date can sensibly be enforced. In that circumstance, the contractor's only obligation is to complete within a reasonable time, and the employer loses the right to deduct liquidated damages. A properly operated EOT mechanism prevents this outcome by giving the employer a contractual route to extend the completion date when employer-risk events occur.
In the FIDIC forms that dominate Middle Eastern construction, Sub-Clauses 8.4 (1999) and 8.5 (2017) set out the events that entitle the contractor to an EOT. These typically include variations, exceptionally adverse climatic conditions, unforeseeable shortages, and acts or defaults of the employer. The Protocol stresses that the EOT should reflect the actual delay caused to the contract completion date — not the time spent on the delaying activity itself.
A frequent misconception is that an EOT automatically carries a financial entitlement. It does not. EOT and prolongation cost are separate questions, governed by separate contractual provisions and separate evidential burdens. A delay expert witness will analyse entitlement to time first, and only then will a quantum expert assess the recoverable cost.
Understanding the true purpose of the EOT — protection of both parties and preservation of the liquidated damages regime — leads to better decisions during the project, more disciplined notice and substantiation, and a more constructive approach to dispute resolution when claims arise.