“Or Understanding the pitfalls before you fall into them.”
Extension of Time (EOT) claims are a routine feature of large construction and engineering projects—but their success is anything but routine. While many are well-founded, a surprising number are rejected or significantly reduced. Often, it’s not because the delay wasn’t real, but because the claim itself was poorly conceived, documented, or presented.
Below, we explore ten of the most common reasons why EOT claims fail. Whether you’re a contractor preparing a claim, a consultant reviewing one, or an employer evaluating entitlements, understanding these risks will help you navigate with more confidence—and fewer surprises. So, in no particular order:
1. Poor (or No!) Compliance with Contract Provisions for Notices and Particulars
Most standard form-derived contracts contain strict procedural requirements for notifying delay events and submitting particulars. Contractors often overlook these obligations—issuing late notices, submitting generic claims, or ignoring required formats. But failure to comply with these provisions, especially when expressed as conditions precedent, can fatally undermine entitlement, regardless of the merit of the underlying delay.
2. The Delay Is Not on the Critical Path
An extension of time is often only due if the delay event actually delayed the completion of the works. Contractors frequently submit claims based on genuine delays, disruptions, or inefficiencies—but if the delayed activity wasn’t on the critical path, then the completion date was unaffected. No actual delay to completion often = no EOT.
3. The Baseline Programme Was Unapproved, Unrealistic, or Contained Incorrect (Broken) Logic
Many delay claims rely on a baseline programme that was never formally approved or didn’t reflect the contractor’s actual plan. Without a credible and accepted programme, demonstrating delay becomes far more difficult. Worse still, claims built on a flawed baseline can be picked apart easily under cross-examination. The SCL Protocol provides a route for fixing many of these issues, but you need to tread carefully, record and agree changes—and that’s often easier said than done.
4. Lack of Contemporaneous Records
The strength of an EOT claim often lies in its supporting records. Site diaries, progress reports, RFIs, inspection logs, weather data—these form the backbone of a credible delay analysis. Without them, even a valid delay may appear speculative. A well-kept record can be worth more than the most polished narrative.
5. Over-Reliance on Global or Cumulative Claims
Lumping multiple delay events together and claiming one aggregated impact (“global delay”) is rarely persuasive—especially when the contract requires cause-and-effect analysis for each event. Claim assessors (and ultimately tribunals) expect claims to be unpacked and substantiated in detail. Broad-brush approaches invite rejection.
6. Failure to Demonstrate Causation
It’s not enough to show that a delay occurred. The contractor must show why it occurred—and how the employer’s act or omission directly caused it. A delay to mobilisation doesn’t necessarily entitle you to an EOT unless you can clearly link it to a specific contractual breach or instruction.
7. Use of Inappropriate Delay Analysis Methodologies
Too often, contractors use delay analysis methods that are either too simplistic or not contractually appropriate. The most common mistake? Applying a highly simplistic Impacted As-Planned analysis at an entirely inappropriate point in the delivery programme. Yes, this method has its uses—but only in very limited circumstances. Selecting the right method—and applying it rigorously—is critical.
8. Pre-Existing Delay or Concurrent Delay Not Considered
If the contractor was already in delay for reasons unrelated to the claimed event, entitlement to an EOT for the claimed event may be reduced or extinguished. Similarly, where delay is concurrent (e.g. both employer and contractor are responsible for overlapping delays), the outcome depends heavily on jurisdiction, contract wording, and the assessor’s approach to concurrency. Here is not the place to debate what is or isn’t concurrent delay—suffice to say, if you haven’t considered the cause and effect of preceding, concurrent, and other near-critical delays, your claim will quickly sink.
9. Failure to Demonstrate That the Delay Event Gives Rise to Entitlement
A surprising number of claims fail not on timing or logic—but on substance. Even if a delay is real and well-documented, it must still arise from an event that gives entitlement under the contract: a variation, instruction, breach, force majeure event, etc. Simply being delayed is not enough. If the cause isn’t recognised under the contract—or hasn’t been framed correctly—the claim fails at the first hurdle.
10. The Claim Lacks Credibility or Proportionality
Finally, some claims fail because they overreach. Inflated durations, tenuous logic, or opportunistic events erode the overall credibility of the claim. Decision-makers respond better to measured, transparent claims backed by evidence and reason. When claims are proportionate and balanced, they’re far more likely to be taken seriously.
Conclusion
Extension of Time claims are not just about delay—they’re about demonstrating delay that gives rise to an entitlement to an extension of time (and thus, relief from delay damages) in a way that holds up to scrutiny. The difference between a successful claim and a failed one often lies in the fundamentals: proper notice, sound programming, solid records, clear logic, and a disciplined approach to contract compliance.
Avoiding the pitfalls above won’t guarantee success—but it will significantly improve your chances of getting the extension of time you’re genuinely entitled to, without the frustration of procedural rejection or evidential collapse.
davidbrodiestedman@dispute-iq.com
