Scholarly Paper

Understanding Extension of Time under Different

Standard Design-Build Forms of Contract
Islam H. El-adaway, F.ASCE 1; Ricky A. Vance 2; and Ibrahim S. Abotaleb, A.M.ASCE 3

Abstract: Contractual provisions related to delay and extension of time are often written in difficult language or presented in a scattered
manner in construction contracts. This could lead to confusion and misunderstanding by the different parties as to rights and responsibilities.
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Thus, it is not surprising that poor contract administration is always listed among the top reasons for conflicts, claims, and disputes in the
construction industry. The goal of this paper is to present contract administration guidelines for appropriate utilization of the provisions
related to extension of time under the most widely used standard design-build contracts. This is particularly valuable bearing in mind
the complexity of addressing construction delays in general, as well as the growing popularity of design-build delivery methods in particular.
To address this goal, the authors (1) analyzed the provisions related to extension of time under standard design-build contracts published by a
range of professional bodies and institutions; (2) highlighted the differences and commonalities among the studied contracts in a comparative
analysis form; and (3) developed a checklist of causes and questions to provide an easy-to-use systematic process to allow for a more robust
process for managing claims for extension of time. The presented checklist acts as a tool for assessing and enhancing contract administration
for extension of time under design-build contracts. The checklist also provides associated parties with guidelines for drafting contractual
clauses related to extension of time under new design-build contracts. This study is expected to promote effective and efficient contract
administration of requests for extension of time, thus minimizing conflicts, claims, and disputes as well as enabling associated parties
to mitigate the related time and cost negative impacts on their projects. DOI: 10.1061/(ASCE)LA.1943-4170.0000331. © 2019 American
Society of Civil Engineers.

Introduction compensation related to each type. However, contractual provisions

Due to the complex nature of today’s construction projects, changes
and delays are becoming the norm rather than the exception (Kadry
et al. 2016). Such delays often have negative impacts on all parties
involved. Accordingly, it is essential to define mechanisms for deal-
ing with delays and how the responsible party shall compensate the
negatively impacted parties (Pickavance 2010). Being able to han-
dle delays and settle the associated conflicts and claims amicably is
better than having them escalate to disputes cases. That is why cur-
rent national and international standard contracts, which are used in
most construction projects, provide provisions that define the dif-
ferent types of delays and direct the parties to the procedures and
1
Hurst-McCarthy Professor of Construction Engineering and Manage-
ment, Professor of Civil Engineering, and Founding Director of Missouri
Consortium for Construction Innovation, Dept. of Civil, Architectural,
and Environmental Engineering/Dept. of Engineering Management and
Systems Engineering, Missouri Univ. of Science and Technology, 228
Butler-Carlton Engineering Hall, 1401 N. Pine St., Rolla, MO 65409
(corresponding author). ORCID: https://orcid.org/0000-0002-7306-6380.
Email: eladaway@mst.edu
2
Operation District Supervisor, Tennessee Dept. of Transportation,
2665 NW Broad St., Murfreesboro, TN 37129; formerly, M.Sc. Student,
Dept. of Civil and Environmental Engineering, Univ. of Tennessee,
Knoxville, TN 37996. Email: adam.vance@tn.gov
3
Postdoctoral Research Fellow, Dept. of Civil, Architectural, and
Environmental Engineering, Missouri Univ. of Science and Technology,
211-Butler-Carlton Engineering Hall, 1401 N. Pine St., Rolla, MO 65409.
Email: abotaleb@mst.edu
Note. This manuscript was submitted on August 28, 2018; approved on
April 2, 2019; published online on September 27, 2019. Discussion period
open until February 27, 2020; separate discussions must be submitted for
individual papers. This paper is part of the Journal of Legal Affairs and
Dispute Resolution in Engineering and Construction, © ASCE, ISSN
1943-4162.
are often written in difficult language or presented in a scattered
manner in construction contract. This could lead to confusion
and misunderstanding by the different parties as to rights and
responsibilities, especially at the side of those focused on the tech-
nical side of the job.
Recent reports by Arcadis (2015, 2016, 2017) studying construc-
tion disputes in North America, Asia, the Middle East, and Europe
have shown that poor contract administration is the most common
cause of disputes. These reports are also supported by the early find-
ings of Colin et al. (1996), Diekmann et al. (1994), Sykes (1996),
Cheung and Yiu (2006), and Blake Dawson Waldron (2006), who
perceive poor contract administration by project parties as one of the
major causes of disputes. Accordingly, proper contract administra-
tion is a leading factor for minimizing construction disputes.
Some research efforts have been made to provide guidelines
and/or enhance the understanding of different parties as related to
different construction contracts. For example, Fawzy and El-adaway
(2013) provided guidelines for utilizing the delay analysis tech-
niques in projects funded by the World Bank. Such projects use
the International Federation of Consulting Engineers (FIDIC)
standard forms of contract. Also, Fawzy and El-adaway (2012)
discussed time at large and presented helpful principles on how
parties should administer their contracts in cases of delays and ex-
tension of time. Further, El-adaway et al. (2016) provided guide-
lines for administrating change-order provisions under national and
international forms of contracts. Another beneficial effort in this
stream was made by El-Hoteiby et al. (2017), who proposed par-
ticular conditions to cover potential risks of construction projects,
thus minimizing disputes resulting from such risks. In addition,
Abdul-Malak and Khalife (2017) presented detailed analysis of
contract notices in order to minimize disputes resulting from mis-
handling them. Most recently, Abotaleb and El-adaway (2017) pro-
vided contract administration guidelines for handling payment

© ASCE 04519031-1 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031

 obligations under national and international standard design-build
contracts. Nevertheless, it was found that no guidelines have been
provided for promoting enhanced understanding for administering
and handling extension of time under design-build contracts.
The goal of this paper is to present contract administration
guidelines for appropriate utilization of the provisions related to
extension of time under the most widely used standard design-build
contracts. As such, this study fills an important gap in the body of
knowledge.
Background Information
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Construction Delays and Extension of Time
Extension of time disputes can arise due to several reasons includ-
ing faulty drafting, understanding, or administration of the relevant
clauses in the contract. Liquidated damages may be applied by the
owner in cases where the design-builder fails to complete a project
within the stipulated period or by a specified date for reasons
caused by themselves and/or reasons for which they are respon-
sible. However, owners cannot claim liquidated damages if they
are the ones causing the delay (Higgins v. City of Filllmore).
On the other hand, extension of time should be granted to the
design-builder in cases where project delays are beyond their con-
trol and/or not within their responsibility. For example, if the owner
is responsible for material delivery and fails to supply such material
on time, an extension of time is provided to the design-builder
(Gymo Constr. Co. v. Architectural Glass & Windows Inc.). The
different types of construction delays, their assessment methods,
and repercussions of each—if any—on the parties to the project
are specified in the contract. However, such delays are generally
grouped in the following four broad categories (Menesi 2007;
Fawzy and El-adaway 2012):
• Nonexcusable delays, which are inclusive of the delays for
which the design-builder either causes or is contractually re-
sponsible for their risks, and thus the design-builder is not re-
lieved of their consequences.
• Noncompensable excusable delays, which are caused by factors
that are not foreseeable, beyond the design-builder’s reasonable
control, or not attributable to the design-builder’s fault or negli-
gence (i.e., adverse weather conditions). Thus, although the
design-builder will not receive compensation for the cost of
delay, they will be entitled to additional time to complete the
work and are relieved from any contractually imposed liqui-
dated damages for the period of delay.
• Compensable excusable delays, which include suspensions
and/or interruptions to all or part of the work caused by an
act or failure to act by the owner resulting from noncompliance
and/or breach of an obligation, stated or implied, in the contract.
Thus, the design-builder is entitled to not only an extension of
time but also to an adjustment for any increase in costs caused
by the delay.
• Concurrent delays, which occur when both owner and design-
builder are responsible for the delay. Depending upon the situa-
tion and the contractual terms and conditions, the concurrency
analysis can get more complicated at times as related to the ap-
portionment to segregate the intertwined cause-and-effect rela-
tionships and associated responsibility for the delay. A true
concurrent delay is classified as excusable noncompensable
delay that entitles the design-builder to a time extension as well
as the remission of liquidated damages.
Construction contracts usually clearly state how the parties
should proceed in the case of excusable and nonexcusable delays.
© ASCE 04519031-2
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031
In fact, the effect of the delay-causing event is calculated in a rea-
sonable and straightforward manner. However, when it comes to
concurrent delays, the contracts are silent on how to allocate the
responsibility of the delay. In other words, the contracts only men-
tion what happens after the concurrent delays are analyzed and con-
verted into excusable and nonexcusable delays through delay
analysis. This leaves it to the discretion of the parties to choose
the delay analysis technique that suits their project. Thus, following
completion of the delay quantum analysis, determination of the root
causes for that delay follows to ascertain whether an extension of
time should be awarded.
Delay analysis utilizes both as-planned and as-built schedules.
On one hand, the as-planned schedule is a graphical representation
of the design-builder’s original intentions for the completion of the
project, and it shows the different critical paths as well as the
planned activities and their sequence. On the other hand, the as-
built schedule shows the actual dates of the activities in the project
as they occurred in real life—including start and finish times, work
completed, resources used, slowdowns, idle times, work disruption
periods, suspension, acceleration, delivery of materials, and change
orders—to provide evidence and/or assessment of liability for
any delay. From the as-built dates, the analyst can deduce how
the as-built sequencing varies from the planned logic. Ultimately,
the purpose of the delay analysis is to calculate the contribution of
each party to the total delay.
The Association for the Advancement of Cost Engineering
(AACE) International lists nine different schedule delay analyses
in its Forensic Schedule Analysis (AACE 2011). The most widely
recognized ones are as follows:
• As-planned versus as-built analysis: this is a retrospective meth-
od that compares the baseline, or as-planned, schedule with the
as-built schedule. This method is used when the baseline and as-
built schedules exist reliably, but the interim schedule updates
are not reliable (because they either do not exist or are flawed).
• Impacted as-planned: this is where delays caused by the default-
ing party are identified and inserted into the as-planned sche-
dule, and the result would be an impacted schedule with a
new date for completion. As such, one party would insert
only the other’s responsible delays, and the resultant impact
on the project duration shall represent the extension of time
entitlement.
• Collapsed as-built (or but-for analysis): this is where the as-built
schedule is used, and then the activities representing the owner’s
delays are removed to shorten the actual durations of delayed
activities. As such, the output will be a schedule that could
have been achieved if it was not for the actions of the defaulting
party.
• Windows/snapshot/time slice/contemporaneous period analysis:
this is where the total duration of the project is divided into a
number of time periods (windows or snapshots). Then, the pro-
ject is updated at the end of each window using regular updates
of the as-planned schedule, and both the critical path as well as
the extent of delay incurred to completion are determined at that
date for each window. As such, the delays are then analyzed
within that window to determine the ones for which the design-
builder is responsible and the ones for which the owner is re-
sponsible, and the process is repeated for all windows.
Each delay analysis technique has its own strengths and weak-
nesses. However, all of them can be used to proportion and assess
the contribution of each entity to the total delay as well as estimate
the extension of time entitlement. Along the same lines, the Delay
and Dispute Protocol (SCL 2018) established by the Society of
Construction Law (SCL) also referenced the aforementioned delay
analysis techniques as well as other techniques such as the time
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 impact analysis and retrospective longest-path analysis. Moreover,
the Protocol discussed the limitations of each technique and their
effect on the delay analysis. Thus, realizing that standard forms of
contracts generally do not recommend specific delay analysis tech-
nique, the Protocol suggested that the parties to the contract should
try to agree on an appropriate method of delay analysis to better
manage potential project delays.
Design-Build Delivery Method
Several project-delivery methods are currently used in construction
projects; however, the most widespread ones for US government
contracts are design-bid-build (DBB) and design-build (DB)
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(Hale et al. 2009). DBB is the traditional delivery system where
an owner contracts separately with a designer and a design-builder.
As such, the design-builder starts the construction works only when
the design documents are ready. On the other hand, in the DB de-
livery system, the owner contracts with a single entity to perform
both the design and construction under a single design-build con-
tract. This type of contract enables a single point of responsibility
for both design and construction (Moore 1998). The authors chose
to focus this research on the DB method due to its growing use in
the industry as shown in the following statistics.
A comparative study by the Construction Industry Institute (CII)
and sponsored by the National Institute for Standards and Technol-
ogy (NIST) found that DB projects were about four times larger
than DBB projects in terms of project cost (Thomas et al. 2002).
That study, as well as other recently published studies, suggested
that DB projects generally outperform DBB projects in changes,
rework, and practice use (Thomas et al. 2002; Riley et al. 2005;
Hale et al. 2009; Rosner et al. 2009). Due to its many advantages
in allocating clear responsibilities and incorporating project com-
plexities, the use of the DB method has increased noticeably in the
last decade, especially in large and complex projects (Shrestha
et al. 2012). In fact, the market shares for the DB method increased
from 29% in 2005 to 39% in 2013; in contrast, the market share for
the DBB method decreased from 67% in 2005 to 52% in 2013
(Duggan and Patel 2013). For large projects, it was estimated that
more than half of projects above $10 million are being completed
through the DB method (Duggan and Patel 2013). For example,
between 1990 and 2002 alone, approximately 140 Special Exper-
imental Project No. 14 (SEP-14) projects, worth $5.5 billion, were
completed using the DB delivery method (FHWA 2006).
Methodology
As follows, a multistep interdependent research methodology
was devised to attain the research goals and objectives whereby
the authors (1) reviewed and analyzed the provisions related
to extension of time under the most common national and
international standard design-build contracts, including those pub-
lished by the American Institute of Architects (AIA), Consensus-
DOCS, Engineers Joint Contract Documents Committee (EJCDC),
Joint Contracts Tribunal (JCT), New Engineering Contract (NEC),
and FIDIC; (2) highlighted the differences and commonalities
among the aforementioned contracts in a comparative analysis
form; and (3) developed a comprehensive checklist of causes
and questions that acts as a tool for assessing and enhancing con-
tract administration for extension of time under design-build con-
tracts and provides associated parties with guidelines for drafting
contractual clauses related to extension of time under new design-
build contracts.
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031
Review and Analysis
Extension of Time under the AIA Design-Build
Contract
The AIA “publishes nearly 200 agreements and administrative
forms that are recognized throughout the design and construction
industry as the benchmark documents for managing transactions
and relationships involved in construction projects” (AIA 2014).
The latest edition of AIA’s DB contract is AIA A141 (AIA
2014), which is the contract investigated in this paper.
When delays are encountered under AIA A141, the owner and
design-builder need to take notice of Article 8. In particular, Article
8.2.1 states that if the design-builder is delayed due to no fault of
their own, then the contract time shall be extended by work of a
change order for the reasonable amount of time that the owner sees
fit. Also, Article 8.2.1 details the reasons for which the design-
builder is due a time extension to include acts or neglect of the
owner or of a consultant or separate design-builder employed by
the owner. These reasons also include (1) any changes ordered
by the owner to the original scope of work, labor disputes, fire,
unusual delay in deliveries, unavoidable casualties or other causes
beyond the design-builder’s control; and (2) delays authorized by
the owner pending mediation and binding dispute resolution or by
other causes found justifiable by the owner.
If any of the aforementioned delays occur, the design-builder is
entitled to a time extension. However, this does not prohibit either
entity from claiming other damages under other provisions of the
contract. Under Article 9.7, if the owner does not issue certificate
for payment or pay the associated amount within the time indicated
in the contract, the design-builder can stop the work after providing
the owner with a 7-day written notice. This Article also gives way
for justifiable time extension. In this case, the contract time shall be
extended appropriately and the contract sum shall be increased in
accordance to the design-builder’s reasonable costs of shut down,
delay, start up, and interest.
When events occur that could entitle the design-builder to time
extension under Article 8.1, the claim process shall follow Article
14.1.6, where it is stated that written notice shall be provided, as
with other claims pertained to the design-build document. When
submitting claims per Article 14.1.6.1, the design-builder should
include an estimate of the time and its effect on the progress of
the work. If the delay is continuous throughout the project, then
only one claim is to be submitted. Article 14.1.6.2 goes on to men-
tion that if the delay is due to adverse weather conditions, then rel-
evant data should be submitted to show that the weather conditions
could not have been predicted and that they had an adverse effect
on the project time.
Time extension claims need to be submitted with substantiating
documentation as soon as the delays occur. The design-builder need
not to wait until the end of the contract to submit a claim. To this
end, under Article 14.1.3.1, claims by either party are to be initiated
within 21 days of the occurrence of the event or within 21 days of
recognizing that the condition will give rise to a claim, whichever is
later. Such time limits are not time-barring. After the claim has been
filed and is processed under Articles 14.2.3 and 14.2.4, the design-
builder shall still proceed diligently with the work while the claim
is being assessed and evaluated. Article 14.2.5 states that although
the owner’s initial decision on any claim is final and binding, it is
still subject to mediation and binding dispute resolution (i.e., arbi-
tration) afterward if the parties fail to resolve their dispute through
mediation. Article 14.2.6 details the process for initiating mediation
and/or arbitration, and the actual procedure for each is detailed
under Articles 14.3 and 14.4, respectively.
04519031-3 J. Leg. Aff. Dispute Resolut. Eng. Constr.
 Extension of Time under the ConsensusDOCS
Design-Build Contract
The ConsensusDOCS contracts were established by 41 industry
organizations to represent the designers, owners, contractors,
design-builders, and sureties. ConsensusDOCS contracts purport
to protect the best interests of the project rather than a singular
party, yielding better project results and fewer disputes (Harris
and Perlberg 2009). The following paragraphs will present how
ConsensusDOCS 410—the agreement between the owner and
the design-build entity—handles the issues of delays and time
extension (ConsensusDocs 2017).
Under ConsensusDOCS 410, the owner and the design-builder
are to be aware of Article 6.3. In fact, Article 6.3.1 states that if the
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design-builder is delayed at any time during the commencement or
progress of the work due to causes beyond their control, they will be
entitled to an equitable extension in the contract time. The following
causes are provided as legitimate bases for time extension requests:
• acts of omission by the owner or others,
• changes or decisions in the work ordered/changed by the owner,
• unpredictable changes in transportation,
• labor disputes not involving the design-builder, and ones that
impact the project but that are not related to the project,
• fire,
• terrorism,
• epidemics,
• adverse governmental actions,
• unavoidable accidents,
• adverse weather,
• hazardous material,
• concealed and unknown conditions,
• delay by owner pending disputes resolutions, and
• suspension by the owner under Article 12.1, “Suspension for
Convenience.”
All of the aforementioned delays are out of design-builder’s
control. It is obvious, however, that ConcensusDOCS 410 provides
more reasons for extension of time due compared with AIA A141.
These differences and similarities will be detailed and discussed
subsequently in this paper.
Once an excusable delay occurs, a claim for a time extension can
be filed. When filing a claim for time extension, both the owner and
design-builder need to follow Article 9.6. Under this Article, the
design-builder should submit a claim within 21 days of the occur-
rence that has caused the delay or within 21 days after the design-
builder has noticed the condition giving rise to the claim, whichever
is later. This ensures that the design-builder will be able to still sub-
mit a claim even if they do not immediately notice that the delay
was going to negatively impact the progress on the project. After the
claim has been submitted, the design-builder has 21 days to supply
the supporting documentation. After the owner receives the claim
with its supporting documentation, they have 14 days to respond to
the claim. A nonresponse to the claim means the claim was denied.
If the claim is accepted, then it will be handled by a change order. If
a reasonable amount of time extension cannot be agreed upon, the
claim will be handled by a neutral party or a dispute review board
selected by both parties to the contract as per Article 13.3. If no
neutral is chosen, then the dispute shall be handled by mediation
per Article 13.4. If no resolution is reached after Article 13.3 or
13.4, the claim will end up in arbitration.
Extension of Time under the Engineers Joint Contract
Document Committee Design-Build Contract
The Engineers Joint Contract Document Committee (EJCDC) is a
joint venture among the National Society of Professional Engineers
© ASCE 04519031-4
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031
(NSPE), the American Council of Engineering Companies, and
ASCE. EJCDC’s design-build contracts are handled under the
D-700 series.
There are several articles that deal with the issue of time exten-
sion due to delays within EJCDC D700 (EJCDC 2016). Article
11.02 B states that the design-builder will be entitled to a time ex-
tension for delays that are beyond their control and provides the
following list of excusable delays:
• acts of neglect by the owner,
• governmental agencies,
• acts of neglect by utility companies,
• delays due to other contractors working for the owner,
• fires,
• floods,
• epidemics,
• abnormal weather conditions,
• acts of God, and
• others.
Article 11.02A states that extension of time claims should fol-
low the procedure outlined under Article 9.03, where the original
time for completion can only be modified using a change order.
There are other articles in the EJCDC contract that entitle
the design-builder to a time extension. Under Article 4.02, the
design-builder is entitled to an extension of time if there are differ-
ing site conditions that were not included in the contract document
by the owner, or if the design-builder encounters conditions that
differ materially than what could have been anticipated for the site
in question. At such instance, written notice has to be given to
the owner. Subsequently, the owner will investigate the site, and
if the site differs to the extent of effecting the original time for
completion, an equitable adjustment in time will be made. For
the design-builder to claim time extension, they have to follow
the times set out under Article 9.03.
If hazardous material is encountered in the project and this was
not accounted for under the contract and/or was not caused by the
design-builder, then this would provide basis for a time extension
under Article 4.04C. In this case, if the owner and design-builder
can agree on an acceptable time extension, a change order does not
need to be issued. If an agreement cannot be reached, however, then
the design-builder should file a claim as per Article 9.03.
Under Article 9.02, the design-builder is entitled to a time ex-
tension if unauthorized changes in the work are required under
Articles 6.16 and 12.04. On one hand, Article 6.16 allows for time
extension if at any time the design-builder believes that the safety
of the project, employees, or the surrounding is in jeopardy due to
the specific scope and/or nature of the project. This requires the
design-builder to change how the work is performed to ensure
safety. Written notice has to be given to the owner of the variations
that had to be made to the contract. This process will be handled
under a change order. On the other hand, Article 12.04 allows the
design-builder to have a time extension if the owner requires that
they uncover previously accepted construction work for further
testing, inspection, and evaluation. This type of time extension also
falls under Article 9.03.
Finally, under Article 14.01, the owner is allowed to suspend the
work at any time provided the design-builder is given a written
notice indicating a fixed date as to when the work is to be resumed.
To this end, the design-builder is only allowed an extension of time
if a claim is filed in accordance to Article 9.03.
Article 9.03 addresses the issue of claims for extension of time
and states that the design-builder has 15 days from the time of the
occurrence of the event causing the delay—or from the time when
it was known that an agreement could not be reached—to submit
a time extension claim. After the submission of a claim, the
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 design-builder has 30 days to supply substantiating documentation
to support their claim. After receiving the supporting documents,
the owner will have 30 days to give a decision. If the design-builder
is not satisfied with the decision, they have 30 days to exercise their
right to a dispute under Article 15. If the design-builder does not
initiate the dispute within 30 days, then the decision is final. Article
15 allows for the owner and design-builder to agree on how dis-
putes are handled.
Extension of Time under JCT Design-Build Contracts
The JCT was formed in 1931 by the Royal Institute of British
Architects (RIBA), and the first JCT standard form of building con-
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tract was issued. The forms were not referred to as JCT until 1977.
JCT members revised the latest edition of their design-build con-
tract in 2016. As such, the JCT 2016 edition is the subject of this
paper (JCT 2016).
Under JCT 2016, the design-builder is entitled to time extension
if the delays are defined as a relevant event per the contract docu-
ments and if that event will indeed cause a delay to the completion
to any section or the entirety of the project. The concept of relevant
events is first mentioned under Clauses 2-23 to 2-26. These clauses
inform the design-builder of which events are considered relevant
events per their contract agreement and how they should report the
associated delays. Clause 2-26 lists the relevant events that will
allow for time extension by the design-builder. The JCT contract
provides corresponding clauses that have additional information
to help clarify what is considered relevant events, and these are de-
tailed in the following paragraphs.
Instructions from the owner are covered under Clauses 2-13,
3-10, 3-12, and 3-13-3. Clause 2-13 gives the design-builder enti-
tlement to a time extension if they notices any discrepancies in the
owner’s requirements, design-builders’ proposal, instruction issued
by the owner, or with the drawings and documents requested by the
owner. Any of these discrepancies can affect either the design
and/or construction of the project and need to be clarified before
work continues. Clauses 3-12 and 3-13 allow the design-builder to
receive a time extension if the owner requires that the design-
builder uncovers the work for further tests and inspections. If the
tests and inspections prove to be of satisfaction to the owner, then
the design-builder is entitled to time that will compensate for the
time required to uncover, test, and recover.
Clause 3-15 applies to any antiquities or fossils that are uncov-
ered or discovered during any operation of the construction project.
This requires the design-builder to stop construction works and in-
form the owner of what is found. The owner then investigates the
site and determines how they want to handle the preservation of the
artifacts. This may even require that the design-builder works with
a third party under the direction of the owner. Accordingly, a time
extension will be allowed.
Under Clause 4-11, the design-builder is allowed a time exten-
sion if they are to suspend the work in case the owner does not pay
as per the contract. The design-builder has to submit their intention
to suspend work 7 days in advance with proper justification.
The owner and design-builder must then reach an agreement on
an adequate time to allow for the project to be completed once
the design-builder resumes work. Another relevant event that is fur-
ther defined is the issue of specified perils. The following specified
perils, also referred to as force majeure events, are listed under
Section 6 of the JCT design-build contract:
• fire,
• lightning,
• explosion,
• storm,
© ASCE 04519031-5
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• flood,
• earthquake,
• aircraft,
• riot and commotion, and
• escape of water from any water tank, apparatus, or pipe.
If any of these events occur, the design-builder is entitled to a
time extension. However, this does not mean that these are the only
reasons that may warrant a time extension. If the design-builder
encounters other delays outside of its control, they needs to docu-
ment the delays and inform the owner.
Extension of time is handled under Clauses 2-24 and 2-25.
Clause 2-24 requires that the design-builder gives notice to the
owner as soon as it has become apparently reasonable that the
progress of the work has been or will be delayed. Unlike the rest
of the contracts, which set a certain time frame for the design-
builder to submit the notice after the delaying event takes place,
this contract does not set this period numerically. Instead, it says
“as soon as possible.” This ambiguity could be risky because the
definition of “soon” may be conceived differently by the different
parties. The notice shall include the causes of the delays and state
which delay falls under relevant events. Once the design-builder
has submitted a claim for a time extension, they shall submit
the effect the delay has on the project and an estimate of the time
needed to adjust to delay as soon as possible. Once the claim for a
delay has been submitted, the owner will investigate that the sub-
mitted information is appropriate to being a relevant event and that
it will cause the project to extend beyond its original completion
date. If both of these requirements are justified, then the owner
will give a time extension based on fair and reasonable estimates
per Clause 2-25. Also, under Clause 2-25, the owner has to respond
to the design-builder as soon as reasonably possible but no longer
than 12 weeks from the time the design-builder submitted the sup-
porting documents. If the decision is not agreed upon by both par-
ties, then the claim will become a dispute that will be handled by
mediation, adjudication, or arbitration as per Clause 9.
Extension of Time under the NEC Design-Build
Contract
The Institution of Civil Engineers, based in the United Kingdom,
created and published the New Engineering Contract (NEC 2013),
which is a suite of standard form of construction contracts. Exten-
sion of time under the NEC was covered before by El-adaway et al.
(2016) for design-bid-build projects but because the same contract
is still applicable to design-build, there will be significant unavoid-
able similarities in the forthcoming discussions.
There are several events under the NEC under which the
design-builder is entitled to compensation, extension of time, or
both. Clause 60.1 addresses the compensation events and includes
the following:
1. The project manager releases an instruction to change the work
information, except in the following cases:
• a change to accept a defect, or
• a change provided by the design-builder in its design, made
at its request, or to comply with other work information
provided by the owner.
2. The owner does not allow the design-builder access to the site
or part of it by later than the agreed access date shown in the
accepted program.
3. The owner fails to provide something as agreed and in accor-
dance with the accepted program.
4. The project manager gives instructions to stop or change a
key date.
5. The owner or the other parties
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 • do not work in accordance with the time in the accepted
program,
• do not work in accordance with the conditions in the work
information, or
• carry out work not stated in the work information.
6. The project manager or supervisor fails to reply to commu-
nication in accordance with the time period stated in the
contract.
7. The project manager gives instructions to deal with historical
artifacts or other objects of value or interest found on site.
8. The project manager or the supervisor makes changes to pre-
viously communicated decisions within the contracts.
9. The project manager withholds acceptance, except an accep-
tance for quotation for acceleration, or for not correcting a
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defect.
10. The design-builder is instructed by the supervisor to search for
a defect and they do not find one, unless the instruction was
made because the design-builder had failed to give proper
notice of work and obstructed a test or inspection.
11. An unnecessary delay is caused by a test or inspection done by
the supervisor.
12. The design-builder encounters physical conditions that would
have been judged by any experienced design-builder to have a
small chance of occurring and it would have been unreason-
able to be allowed.
13. An abnormal weather measurement that is expected to occur
on average less than once in 10 years is recorded.
14. An event that is stated as an owner’s risk occurs.
15. The project manager certifies the takeover of part of the works
before completion date.
16. The owner fails to provide materials, facilities, sample tests, or
inspection stated in the work information.
17. The project manager sends a notification to correct or/and
adjust a previously stated assumption about a compensation
event.
18. The owner is in breach of the contract, which is not one of the
compensation events in the contract.
19. An event that
• makes the design-builder unable to complete the works,
• makes the design-builder unable to perform the works in ac-
cordance with the accepted program,
• cannot be prevented by neither party, or
• would have been judged by an experienced contractor, at the
contract date, to have a such a small chance of occurring that
it would have been unreasonable to be allowed, and is not
one of the compensation events.
In accordance with Clause 16.1, the design-builder may notify
the project manager, as an early warning, of any event that delays
the completion date. This is to ensure that the design-builder does
not benefit due to failure to give an early warning. The warning
may mitigate the effect of the compensation event.
NEC has a slightly different procedure from other contracts. The
project manager and the design-builder are both obligated, under
Clauses 61.1 and 61.3, to notify each other. Under Clause 61.1,
the project manager has to notify the design-builder of the compen-
sation event at the time of giving the instruction or making a change
to an earlier decision. Under Clause 61.3, the design-builder is
given a time bar of 8 weeks to send a notification of a compensation
event to the project manager. Failure to do so with that time period
will leave them with no entitlement to extension of time unless the
project manager was required to send a notification of the event to
the design-builder. The notice is a condition precedent. After re-
ceipt of the notification, the project manager shall reply with a no-
tification of its decision, where the completion date is not to be
© ASCE 04519031-6
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031
changed, or the design-builder is requested to submit quotations.
In NEC 3 (NEC 2013), under Clause 61.4, the project manager
has to send a reply within 1 week from receiving the design-build-
er’s notification, or within a longer period if the design-builder
agrees. The assessment of the extension of time is done in accor-
dance with Clause 63.3.
In case the project manager fails to reply within the aforemen-
tioned time limit, the design-builder may notify them. If still no
reply is sent within 2 weeks, it can be interpreted as an acceptance
from the project manager of the event as a compensation event
and as a request to submit quotations. In this case, the design-
builder shall submit quotations of the desired compensation for
the delaying event within 3 weeks of being instructed to do so.
The project manager then replies within 2 weeks of that submis-
sion with either an acceptance, instructions to submit a revised
proposal, or a notification that the proposed instruction will not
be given, that a proposed change to a decision will not be made,
or that they will make their own assessment. In accordance with
Clause 62.6 again, failure of the project manager to reply to sub-
mitted quotations within 2 weeks of submission will lead to the
same aforementioned scenario. The design-builder may send a no-
tification to this effect. If there is no reply within 2 weeks, this
may be considered as an acceptance of the quotation. However,
in accordance with Clause 64.1, if the design-builder fails to sub-
mit a quotation within the previously mentioned 3-week period,
the project manager is given the discretion to assess the compen-
sation event. Eventually, if the design-builder’s quotation is ac-
cepted or treated as such or the project manager makes their
own assessment, the compensation event will be implemented
in accordance with Clause 65.1.
According to Clause 13.1, all notifications shall be in writing.
According to Clause 13.7, notices are to be communicated sepa-
rately from other communications. Therefore, a notice of compen-
sation should not be included in a progress report, for example.
A separate communication is needed for compensation events. In
case the design-builder is dissatisfied with the project manager’s
decision, this matter is to be handled by adjudication and/or tribu-
nal, in accordance with Options 1 and 2 of NEC.
Extension of Time under FIDIC Design-Build Contract
The FIDIC is well known for its standard forms of contracts
directed for the construction industry worldwide. The most recent
and up-to-date suite of contracts was published in 2017 (FIDIC
2017b), and includes the second edition of the so-called design-
build Yellow Book. Extension of time under the FIDIC was
covered before by El-adaway et al. (2016) but because there is some
commonality between the Red and Yellow Books, some similarity
in the forthcoming discussion is unavoidable (FIDIC 2017a).
In the FIDIC Yellow Book’s Subclause 8.4, the following list of
conditions where a design-builder could be entitled to an extension
of time is given:
• a variation, except adjustment to time for completion agreed in
accordance with Subclause 13.3 “Variation Procedures,” or
other substantial changes to the quantity of an item in the works,
• exceptionally adverse climatic conditions,
• unforeseeable shortage of personnel or goods due to epidemics
or governmental actions, and
• any delay, impediment, or prevention caused by or attributable
to the owner, the owner’s personnel, or the owner’s other
contractors.
Subparagraph (b) mentions “a cause of delay giving an entitle-
ment to extension of time under a Sub-Clause of these conditions.”
This easily overlooked part is important for design-builders
J. Leg. Aff. Dispute Resolut. Eng. Constr.
 and gives more situations where an extension of time could be
warranted (Fawzy and El-adaway 2012). Bunni (2005) listed the
following subclauses:
• 1.9: delayed drawings or instructions,
• 2.1: delay in giving access to or possession of the site,
• 4.7: error in specified referenced points,
• 4.12: adverse unforeseeable physical conditions,
• 4.24: fossils,
• 7.4: delayed testing caused by the owner,
• 8.5: delays caused by authorities,
• 8.9: suspension initiated by the owner,
• 10.3: interference by owner in tests on completion,
• 13.1: variations,
• 13.7: adjustments for changes in legislation,
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• 16.1: design-builder’s entitlement to suspend work,
• 17.4: owner’s risk, and
• 19.4: force majeure.
The procedure for extension of time is similar to that of addi-
tional payment. It is covered in Subclause 20.1 and is shown in
Fig. 1. Procedures for continuing delay are covered in Subclause
20.1 and are shown in Fig. 2. Failure of the design-builder to send
notice of claim within 28 days will result in nonextension of the
time for completion. A proper notice is a condition precedent to
entitlement to extension of time. Also, the design-builder is respon-
sible for submitting interim claims at monthly intervals with the
accumulated delays and/or the amount claimed. They are also re-
quired to send a final claim within 28 days of the end of the delaying
event. In case of the design-builder’s failure to follow the proce-
dures and provide details of the claim for extension of time in re-
lation to any claim, any extension of time and/or additional payment
shall take account of the extent, if any, to which the failure has pre-
vented or prejudiced proper investigation of the claim. After receipt
of a claim, the engineer has 42 days to approve or disapprove claim
and must provide detailed comments with the response.
If any of the parties is unsatisfied with the engineer’s decision,
they should first attempt amicable settlement. According to the pro-
cedure in Clause 20, they can refer the matter to the dispute adju-
dication board, followed by arbitration. As far as time is concerned,
Subclause 8.4 requires all project parties to advise each other in
Fig. 1. Extension of time under the FIDIC (2017b) Yellow Book.
Fig. 2. Extension of time for events having continuing effects under
FIDIC (2017b) Yellow Book.
© ASCE
J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031
advance of any future events that may cause delay to the execution
of the works. In such an event, the engineer may request a proposal
for variation to be submitted by the contractor. This aims to min-
imize or avoid the effect of such known or probable events. How-
ever, the subclause does not mention the consequences for failure to
give such advance warning.
Discussion
This paper reviewed and analyzed the bases that entitle the design-
builder to a time extension and investigated the corresponding pro-
cedure and rights under different standard design-build contracts.
To this effect, and as outlined in Table 1, each of the investigated
contracts has its own set of conditions to initiate a claim for exten-
sion of time. The matter of properly understanding the provisions
of the contract with respect to extensions of time is of significant
importance, especially in relation to the provided time limits for
both the design-builder as well as the engineer/architect/project
manager. Because this paper is not only dealing with US contracts,
but also incorporates other international contracts, some of the dis-
cussion might not be always pertinent or supported by US courts.
As such, parties should always resort to professional legal advice to
avoid any ambiguity or confusion.
As far as the design-builder is concerned, Knowles (2005) stated
that in case of a design-builder’s failure to follow notice and claim
provisions, “this will not result in the loss of rights to an extension
of time unless the conditions of the contract expressly state that the
service of a notice is a condition precedent to such rights.” Also,
Chappell (2007) stated that giving of the notice is not a precondi-
tion to the award of an extension of time unless the contract ex-
pressly states so. Along the same token, if the design-builder does
not provide a condition precedent delay notice, this failure may
simply result in waiver or forfeiture of a claim (El-adaway et al.
2016). Accordingly, if the design-builder fails to serve a proper
delay notice, this would not result in the loss of rights to an
extension of time under design-build contracts developed by AIA,
ConsensusDocs, and JCT because the time limits mentioned
therein are not time-barring. However, design-build contracts of
EJCDC, NEC, and FIDIC provide time limits that are conditions
precedent for recovering the claimed right. EJCDC states under
Article 10.05.F that “no claim for an adjustment in contract price
or contract times will be valid if not submitted in accordance with
this paragraph 10.05.” NEC also considers failure by the design-
builder to comply with the contractual time period (8 weeks) in
submitting a notification of the compensation event to the project
manager as time-barring. The latter will therefore leave the design-
builder with no entitlement for extension of time unless they had
already been notified by the project manager. Finally, Subclause
20.1 of the FIDIC Yellow Book states.
If the Contractor fails to give notice of a claim within such
a period of 28 days, Completion shall not be extended, the
Contractor shall not be entitled to additional payment, and
the Employer shall be discharged from all liability in connec-
tion with the Claim.
On the other hand, and as far as the engineer/architect/project
manager is concerned, the contracts under investigation deal differ-
ently with this matter. For example, according to 10.05.D of
EJCDC, if the engineer failed to take action on a claim with the
aforementioned timescale of 30 days, the claim will be deemed de-
nied. However, under the FIDIC Yellow Book, if the engineer fails
to determine extensions of time in accordance with the provisions
of the contract and if the design-builder is entitled to extension of
04519031-7 J. Leg. Aff. Dispute Resolut. Eng. Constr.
 Table 1. Process for extension of time claims under standard design-build contracts
Procedure AIA ConsensusDOCS EJCDC JCT NEC FIDIC
(A) Report delaya 21 days 21 days 15 days As soon 8 weeks 28 days
as possible
Does the design-builder lose the Not clear Not clear Not clear N/A Yes unless project manager Yes
right to claim for an extension was the one supposed to
of time caused by the delay after send the notification being
the reporting period (A) is over? the instructor of the change
causing the delay
(B) Supporting documentationb 21 days 21 days 30 days As soon 3 weeks 20 days
as possible
What happens if the design- Not clear Not clear Not clear N/A Project manager can assess Any extension of time and/
builder does not provide the based on their view or additional payment shall
supporting documents on time? take account of the extent, if
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any, to which the failure has

prevented or prejudiced
proper investigation of the
claim
(C) Decisionc 10 days 14 days 30 days 12 weeks 1 week for notice and 42 days
2 weeks for supporting
documents
What happens if the owner/ Not clear Claim is denied Not clear Not clear Quotation deemed accepted Not clear
engineer/project manager fail to
provide a decision or a reply
within the decision period (E)?
(D) Disputed 30 days — 30 days — 4 weeks 20 days
(E) Determined bye Owner Negotiated Owner Employer Project manager Engineer
(F) Relating article/clausef 14.2 9.6 9.03 2-24/2-25 60 through 64 8.4 and 20
a
Maximum time between the event causing the delay and submitting a notice by the design-builder.
b
Maximum time between submitting the notice and the supporting documents showing the details of the requested extension of time.
c
Maximum time for the owner/engineer/project manager after receiving the supporting documentation to reply with approval/disapproval of the requested
extension of time.
d
Duration for which the design-builder can exercise the right to dispute the decision of the owner/engineer/project manager, calculated from the day the design-
builder receives the decision of the owner/engineer/project manager. A forward slash symbol means that the contract is silent regarding that matter. Under
EJCDC, if the design-builder does not rebuttal the decision within 30 days, the decision becomes final.
e
Final determination of the extension of time and the corresponding added compensation is provided by which party.
f
Clause in the contract that is associated with extension of time and its relevant procedure.

time and can prove that right, the owner loses its entitlement for
liquidated damages and the design-builder shall finish the work
within a reasonable time (El-adaway et al. 2016). To this end,
Bunni (2005) stated that failure by the architect to respond to
the design-builder’s notice of claim for additional time within a
specified period results in the loss of architect’s right to grant
an extension of time; accordingly there is no date from which liqui-
dated damages can be computed, thus no liquidated damages are
recoverable (Bunni 2005). The same analysis is applied to AIA
design-build contracts.
Also, as per Clause 63 of JCT, the owner would not have the
right to deduct liquidated damages until all of the design-builder’s
applications for extension of time have been decided (Fawzy and
El-adaway 2012). As for NEC, if the project manager fails to notify
the design-builder of the decision within the duration stipulated in
Clause 61.4 and the design-builder provides notifications, it will be
considered as an acceptance of the compensation event or quotation
by the project manager after a 2-week period.
After thorough review of the studied forms of contract, the au-
thors developed a comprehensive checklist that provides guidelines
to assist the design-builder in drafting and administering provisions
related to extension of time in design-build contracts. The checklist
lists 32 causes of delays and presents eight questions that, when
answered, facilitate better understanding of the prerequisites and
requirements for acquiring a time extension. The contract admin-
istrator should be able to answer all such questions to ensure that
the contract is free of ambiguities and to ensure that they have a
proper understanding of the contract provisions related to exten-
sion of time. In case of drafting a new contract, the checklist will
aid such a drafting process. The new contract should contain pro-
visions that clearly answer those questions. The developed check-
list is shown in Fig. 3. The provided questions in this checklist are
expected to act as a tool for assessing and enhancing contract
administration for extension of time under design-build contracts.
In addition, they provide associated parties with guideline for draft-
ing contractual clauses related to extension of time under new
design-build contracts.
Based on initial feedback from various industry professionals
as well as considering documented cases for extension of time dis-
putes under different design build contracts, the authors believe that
such checklist provides an easy to use systematic process to allow
for more robust process for managing claims for extension of time.
Conclusion
Despite the comprehensiveness of the currently available standard
forms of design-build contracts, poor administration of contracts
remains one of the leading cause of conflicts, claims, and disputes
in the construction industry. Studies have shown that proper con-
tract administration is in fact one the most effective actions for
avoiding disputes. Because delays are becoming the norm rather

© ASCE 04519031-8 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031

 Type of Delay If Excusable Compensable

Non-Excusable Non-Compensable

Compensation Includes Direct

Compensation Includes Direct

Compensation Includes Direct

Compensation Includes Direct

Compensation Includes Direct

Excusable Non-Compensable

Cost + Defined Overhead** +

Cost + Defined Overhead**

Cost + Overhead* + Profit*

Excusable Compensable

Cost + Overhead*

Defined Profit**
Cost Only
Causes of Delays

Other
Delay in the commencement of the work due to the Owner negligence (postponing site
1
possession)
2 Changes in the scope of the work (Change Order)
3 Labor disputes involving the Design-Builder
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Labor Disputes not involving the Design-Builder (ones that impact the project but that
4
are not related to the project)
5 Unforeseen delay in deliveries of supplies
6 Unavoidable causalities beyond the Design-Builder’s control
Authorized delays from the owner due to disputes pursuant of the Design Build
7
Documents
8 Late approvals/testing by the Owner or the Engineer
9 Acts of omission by the Owner
10 Changes or decisions in the work ordered/changed by the Owner
11 Unpredictable changes in transportation
12 Adverse governmental actions
13 Safety accidents
14 Expected adverse weather conditions
15 Exceptionally adverse weather conditions
16 Hazardous material
17 Concealed and unknown conditions
18 Delay by owner pending disputes resolutions
19 Suspension by the owner
20 Acts of neglect by utility companies
21 Delays due to other contractors working for the Owner
22 Rightful suspension of the project by the contractor due to late payment by Owner
23 Low productivity due to shortage of funds caused by delayed payment by Owner
24 Impediment, prevention, or default by the Owner
25 Delay in permissions or approvals that the contractor has tried to avoid
26 Unexpected significant increase in material prices
27 Negligence by the Design-Builder
28 Fire
29 Floods
30 Terrorism
31 Epidemics
32 Acts of God
* Calculated by the Design-Builder at the time of the delay Excusable: gives the right to extension of time
** Percentage set in the contract Compensable: gives the right to additional compensation

1. In the table shown above, can you classify the 32 types of delays? (Delays are classified as Excusable Compensable, Excusable Non-Compensable, or Non-
Excusable Non-Compensable) Check the corresponding cells in the table.

2. For the compensable delays, what is the compensation exactly for each type of delay? Is it just the costs incurred by the design-builder or does it also
include overhead and profit? If overhead and profit are included, how are such amounts set? Use the table shown above to input the answer.

3. When should the design-builder inform the owner that the project will be delayed?

4. What is the procedure and timeline for contractor to request an extension of time?

5. After receiving the delay notice/claim from the design-builder, when should the owner reply with the decision?

6. Does the design-builder lose the right to claim for an extension of time after a certain period after the delaying event takes place?

7. Does the design-builder have the right to stop work or slow down work if the owner refuses to grant him an extension of time till the matter is
resolved?

8. What are dispute resolution procedure in case the design-builder is not satisfied with the owner’s decision relating to extension of time and/or
additional compensation?

Fig. 3. Checklist for administering extension of time under design-build contracts.

© ASCE 04519031-9 J. Leg. Aff. Dispute Resolut. Eng. Constr.

J. Leg. Aff. Dispute Resolut. Eng. Constr., 2020, 12(1): 04519031

 than the exception in today’s complex construction world, delays
cause a significant number of disputes. As such, the goal of this
paper was to present contract administration guidelines for appro-
priate utilization and administration of the provisions related to ex-
tension of time under the most widely used standard design-build
contracts (i.e., AIA, ConsensusDOCS, EJCDC, JCT, NEC, and
FIDIC). To this effect, the authors reviewed and analyzed the pro-
visions related to extension of time—as related to basis of enti-
tlement and claiming procedures—under the aforementioned six
contracts and provided an associated comparative analysis in a
tabulated form. Ultimately, the authors developed a checklist that
contains 32 causes of delays and eight questions to provide an easy
to use systematic process to allow for more robust process for man-
aging claims for extension of time. This checklist acts as a tool for
Downloaded from ascelibrary.org by SUNY at Stony Brook on 10/01/19. Copyright ASCE. For personal use only; all rights reserved.
assessing and enhancing contract administration for extension
of time under design-build contracts. The checklist also provides
associated parties with guidelines for drafting contractual clauses
related to extension of time under new design-build contracts. This
study is expected to promote efficient contract administration of
extension of time, thus minimizing conflicts, claims, and disputes
as well as enabling associated parties to mitigate the related neg-
ative impacts on their projects.
Acknowledgments
The authors very much appreciate the constructive remarks and in-
sights provided by the anonymous reviewers that helped hone and
strengthen the quality of this paper during the peer-review process.
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