How should a contractor claim for an extension of time due to a strike and heavy rain, and additional payment for price fluctuation, using ADR?

To amicably solve the situation and sustain the cordial relationship, the following ADR windows are suitable:

• Mediation: A neutral third party facilitates communication and negotiation between the contractor and client to help them reach a mutually acceptable, voluntary agreement. This method is highly effective for preserving relationships.
• Conciliation: Similar to mediation, a conciliator assists parties in reaching a settlement, often by offering non-binding opinions or suggestions for resolution.

• For Extension of Time (EOT) due to ASUU strike and heavy downpour:

  • Force Majeure/Exceptional Events: Most construction contracts include clauses that allow for an extension of time for events beyond the contractor's control, such as strikes (industrial action) and exceptionally adverse weather conditions (heavy downpour). The contractor would argue these events directly caused unavoidable delays.
  • Notice Provisions: The contractor would need to demonstrate that they provided timely and proper notice of these delaying events to the client, as stipulated in the contract.

• For Additional Payment due to Price Fluctuation:

  • Hardship Clauses: While the contract is non-fluctuating, some contracts may contain specific "hardship" clauses that allow for renegotiation or adjustment in cases of extreme, unforeseen economic circumstances that fundamentally alter the contract's basis. This is a weaker argument given the "non-fluctuating" nature but worth exploring if such a clause exists.
  • Client-Induced Delay: If any delays caused by the client pushed the procurement of materials into a period of significantly higher prices, the contractor might claim for associated disruption or acceleration costs.

• Against Extension of Time (EOT):

  • Mitigation: The client could argue that the contractor failed to take all reasonable steps to mitigate the impact of the strike or downpour.
  • Inadequate Notice: If the contractor did not provide timely or proper notice of the delay events as required by the contract, their claim for EOT could be weakened.
  • Normal Weather: The client might argue that the heavy downpour was within expected seasonal variations for the project location, and thus a risk the contractor should have accounted for.

• Against Additional Payment due to Price Fluctuation:

  • Non-Fluctuating Contract Clause: This is the client's strongest argument. The contract explicitly states it is "non-fluctuating," meaning the contractor accepted the risk of price increases for materials and labor when signing the agreement.
  • Risk Allocation: In a fixed-price, non-fluctuating contract, the contractor is presumed to have factored potential market fluctuations and associated risks into their original bid.
  • Absence of Price Escalation Clause: The lack of a specific clause allowing for price adjustments due to market changes reinforces the client's position that the contract sum is fixed.