What is the remedy if the Engineer fails to respond to the Contractor’s notice seeking an extension of time?
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The Engineer has a strict obligation to respond to the Contractor’s claim (at least on the principles of it) within 42 days of receiving it (cl. 20.1), and may also seek further particulars.
Failure to do this, constitutes a breach of the Engineer’s duties in accordance with clauses 20.1, 3.5 (Determinations) and clause 1.3 (Communications), whereas determinations are not to be unreasonably withheld or delayed. That breach could lead to a dispute (e.g. if the EOT is not granted) initially referred to the DAB and consequently causing unnecessary costs to the Employer such as representation costs, financing charges etc.
In terms of direct remedy for the breach, there is none within the Contract to my knowledge, but the Engineer is at risk of being sued for damages by the Contractor or the Employer or both!
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