How to Get an Extension of Time (EOT) in a Construction Project

An extension of time, commonly called an EOT, is not automatic just because the employer caused delay. A contractor must usually show that the delay falls within a ground recognised by the construction contract, that it affected the completion date, and that the contractual notice procedure was followed.

An EOT starts with the contract

An EOT is primarily a contractual right. The contract identifies the events that may justify additional time and sets out the procedure for making the claim.

Under the PAM Contract 2006, clause 23.1(a) generally requires written notice within 28 days of the relevant event. Government forms such as PWD 203 and 203A have their own procedures.

A "Relevant Event" means an event recognised by the contract as a possible ground for additional time. Common examples include late site possession, late drawings or instructions, variations, employer-caused suspension, exceptionally adverse weather and delay caused by other contractors where the contract provides for it.

If the event does not fall within the contractual grounds, the EOT claim may fail even though the project was genuinely delayed.

The notice deadline can decide the claim

Many EOT clauses make written notice a condition precedent. In simple terms, this means the contractor must comply with the notice requirement before the contractual entitlement to additional time arises.

In KL Eco City Sdn Bhd v Tuck Sin Engineering & Construction Sdn Bhd & Anor [2020] MLRHU 1871, the High Court treated the 28-day notice requirement under clause 23.1(a) of the PAM 2006 form as a mandatory condition precedent.

The Court of Appeal took a similar approach in Yuk Tung Construction Sdn Bhd v Daya CMT Sdn Bhd [2020] MLRAU 211, where the contract required written notice "forthwith" once delay became reasonably apparent. The court held that written notice was a prerequisite to consideration of the EOT claim.

A contractor should therefore issue the required notice when the delay event arises rather than waiting until the end of the project, even if the full extent of the delay is not yet known.

The event must actually delay completion

Identifying a Relevant Event is only part of the claim. The contractor must also show that it affected the completion date.

This is where the "critical path" becomes important. The critical path is the sequence of activities that determines when the project can finish. A delay to a critical activity may move the completion date, while another delay may have no effect because there is enough time within the programme to absorb it.

For example, a drawing issued two weeks late does not automatically justify a two-week EOT. The contractor should show that the missing drawing prevented a critical activity from progressing and delayed completion.

In Budaya Restu Sdn Bhd v Kerajaan Malaysia [2022] MLRHU 821, the court emphasised the need to establish the connection between the alleged delay event and the actual delay to completion.

What evidence should you keep?

A good EOT claim is built while the delay is happening. The contractor should keep enough material to show both the event itself and its effect on the programme.

Important records include:

• the EOT notice and proof of service;
• the original and updated construction programmes;
• revised drawings, instructions and site memos with dates;
• site diaries, progress reports and meeting minutes;
• access and site possession records;
• labour, plant and manpower records;
• photographs and, where relevant, weather records;
• correspondence requesting drawings, instructions or access;
• as-planned and as-built programme comparisons; and
• a proper delay analysis for substantial or disputed delays.

The purpose is to create a clear sequence from the delaying event to the activity affected and ultimately to the completion date.

What if the notice deadline was missed?

A missed deadline can be fatal, but there are limited situations where the employer may be treated as having waived strict compliance.

Malaysian cases have recognised waiver by conduct in appropriate circumstances. However, this should be treated as a fallback argument rather than a substitute for giving proper notice.

In KL Eco City, the court made clear that an architect or consultant does not necessarily have authority to waive the employer's contractual rights merely by considering a late application.

If the deadline has been missed, the contractor should preserve evidence of the employer's knowledge, previous EOT assessments, meeting minutes and correspondence, but should not assume that knowledge alone cures the failure to give notice.

What about employer-caused delay?

The "prevention principle" may become relevant where the employer prevents completion and the contract has no effective EOT mechanism covering that event.

In that situation, time may become "at large", meaning the contractor must complete within a reasonable time rather than by the original completion date.

The principle is narrow. Where the contract already provides an EOT mechanism for the employer-caused event, the contractor will generally be expected to use it.

The prevention principle should therefore not be treated as a reliable way to rescue a claim where the contract provided a proper EOT procedure but the contractor failed to use it.

What if both parties caused delay?

Projects often involve overlapping delays. The employer may issue information late while the contractor is also behind on procurement, labour or other activities.

This is commonly referred to as concurrent delay.

The contractor should keep records that allow the different causes of delay to be separated and show how each affected the programme.

This becomes particularly important where the contractor is also claiming prolongation costs.

An EOT gives additional time. It does not automatically give the contractor additional money.

A claim for loss and expense or prolongation costs may have its own notice requirements and must usually be supported by evidence showing the actual additional costs caused by the employer-responsible delay.

What if the Architect or SO does not reply?

Silence does not automatically mean that an EOT has been approved.

The contract determines the duties of the Architect, Engineer or Superintending Officer and any period within which an EOT application should be assessed.

The contractor should continue following up in writing, updating the programme and keeping evidence of the continuing effect of the delay rather than assuming that no reply means approval.

The contractor should also continue progressing unaffected works where reasonably possible. An unresolved EOT application does not normally give the contractor an automatic right to stop work.

Why an EOT matters for LAD

An EOT changes the contractual completion date.

If additional time is validly granted, liquidated and ascertained damages, commonly called LAD, should be assessed against the extended completion date rather than the original date.

This is one reason why missing an EOT notice can become expensive.

Suppose the original completion date is 1 June and the project eventually finishes on 1 August. If the contractor establishes a valid 45-day EOT, the period of potential delay for LAD purposes is substantially reduced.

If the EOT claim fails because the contractor missed a mandatory notice requirement, the employer may seek LAD based on the original contractual completion date, subject to the terms of the contract and the validity of the LAD claim. That exposure often arrives as a deduction from a payment claim rather than as a separate demand.

Keep separate records for loss and expense

Contractors often treat an EOT claim and a claim for additional costs as though they are the same thing.

They are not.

An EOT deals with additional time. A loss and expense claim seeks compensation for additional costs caused by the delay.

The contract may require separate notices and supporting particulars for each.

For example, a contractor may succeed in obtaining an EOT because an employer issued drawings late but still fail to recover prolongation costs because the contractor did not comply with the separate notice provisions or cannot prove the additional expenditure.

Records such as site staff costs, equipment rental, insurance, bonds, temporary facilities and other extended preliminaries should therefore be kept throughout the delay period if a financial claim may follow.

Be careful with final account documents

The end of the project creates another risk.

Before signing a final account, final certificate, settlement or declaration stating that no further claims remain, check whether outstanding EOT and loss and expense claims have been expressly preserved.

A document confirming that the final account represents full and final settlement may make it much harder to pursue an earlier delay claim.

The project team should therefore make sure that unresolved EOT claims are identified before final account documents are signed.

What should you do when delay occurs?

When a delaying event arises, review the EOT clause immediately and identify the contractual deadline.

The written notice should record what happened, when it happened, which activities are affected and that the contractor intends to seek an extension of time.

The contractor should then update the construction programme and continue recording the actual effect of the delay through site diaries, meeting minutes, drawings, instructions and progress reports.

Where the contract requires further particulars once the extent of the delay becomes clearer, that deadline should be diarised separately.

For significant delays, involving a planner or delay expert early can also help ensure that the programme records being maintained will actually support the claim later.

Frequently Asked Questions

How long do I have to submit an EOT claim?

It depends on the contract. PAM 2006 generally requires notice within 28 days under clause 23.1(a), while PWD contracts use different wording and procedures.

What if the employer already knew about the delay?

Actual knowledge may support a waiver argument in some cases, but it is not a safe substitute for complying with the written notice requirement.

Do I need a critical path analysis?

Not in every case, but you must prove that the delay affected completion. For substantial or contested delays, a proper delay analysis can be important.

Does an EOT automatically entitle me to additional costs?

No. An EOT gives additional time. Loss and expense or prolongation claims are separate and may have different notice and evidential requirements.

Final takeaway

A strong EOT claim requires more than proving that the employer caused a problem on site. The contractor must identify a delay event recognised by the contract, comply with the notice procedure and prove that the event actually affected the completion date.

The most useful evidence is normally created while the project is ongoing through timely notices, updated programmes, drawings, site records, meeting minutes and correspondence.

Once a dispute reaches adjudication, arbitration or court, it is often difficult to repair gaps in evidence that should have been recorded when the delay occurred.

Speak to JPP LAW

Justin, Poh & Partners, also known as JPP LAW, assists employers, main contractors, subcontractors and consultants with extension of time claims, LAD disputes, loss and expense claims, CIPAA adjudication, arbitration and construction litigation in Malaysia.

If a project has been delayed and you need to assess an EOT application, a rejected EOT claim or potential LAD exposure, you may contact us to review the contract, notices and project records.

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Disclaimer: This article is for general information only and does not constitute legal advice. EOT claims depend heavily on the wording of the construction contract, the cause of delay, notice requirements, programme evidence and the particular facts of each project.