Can the principal agent reduce the construction period when work is omitted or reduced under the JBCC?
It always seems logical that there should be a corresponding right to reduce time where work is omitted. It seems to make sense within our own subjective view of fairness. If work is increased, the contractor has a right to claim an extension of time, so the inverse is only fair?
In contract law, what is fair becomes a question of fact. Is it fair that a contractor must carry the impact of increased P&G cost when he is delayed by adverse weather? The weather, after all, is not his fault? And yet, we find JBCC dealing expressly and factually with this matter. A contractor can obtain relief of penalties but not P&G’s as a result of weather.
Back to the question of time reduction. In terms of common law, a party does not have a right to unilaterally alter the date by which another party is obliged to complete its performance. The common law position can only be changed by an express term of the agreement or contract between the parties.
When we turn to the JBCC, we find no provision that allows the principal agent to reduce time where work is omitted. In other words, no express right is given to reduce time.
As a result, we cannot assume that this right is implicit because common law prohibits it. We can therefore accept that it is not possible to do so. This is also underpinned by SA case law (see Kelly and Hingle vs Union Government).
There was in the past an argument that the JBCC refers to the “revision of the date of practical completion” when referring to extension of time. The word “revision” could be construed as having the ability to move the date forwards or backwards. However, the counterargument is that the principal agent is only empowered under the extension of time clause to grant, refuse or reduce the time claimed. As a result, the principal agent may therefore grant less additional time than what was asked for, but no power is given to move the date backwards.
We can therefore accept that principal agents or employers cannot reduce a construction period within the ambit of the JBCC contract. Unless of course, there is a formal amendment to the provisions of the contract.
This article was compiled by Kobus le Roux for Le Roux Consulting, all rights reserved. Please contact us for your professional project planning, project control, claims or adjudication assistance services in the heavy civil and building industry.
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