BACK TO THE FUTURE

13/11/2020

Construction delay analysis is often undertaken retrospectively. There are many factors to consider when determining the appropriate method of analysis; the most important factor of all is the Contract. 

In the majority of instances, the NEC form of Contract places a mandatory obligation on project delay being assessed contemporaneously using a prospective method of delay analysis. If such an approach is not adhered to, the Contractor may lose any time entitlement they may have had.

In contrast, the JCT DB’16 places a mandatory obligation on a retrospective method of delay analysis. Pursuant to clause 2.25.5… 

“…the Employer…, …not later than the expiry of 12 weeks after the date of practical completion shall, by notice to the Contractor, … fix a Completion Date for the Works …, whether on reviewing a previous decision or … whether or not the Relevant Event has been specifically notified by the Contractor under clause 2.24.1”

The JCT DB’16 does place a mandatory obligation on the contractor to notify and particularise delay events contemporaneously however unless there are any specific contract amendments, such notification and particularisation is not a condition precedent to entitlement. 

In many instances Pyments programme delay analysts are instructed to undertake retrospective delay analysis. Such instruction may arrive from the employer, the contractor or the sub-contractor. In such circumstances Pyments will need to step into the DeLorean, check the plutonium levels, type in a specific date, and floor it until we reach 88mph! Fortunately, we do not need the 1.21 gigawatts of power required to return home!   

Of course, what Pyments do require is a suitable level of record available to assess and to substantiate, on the balance of probability, the critical delays which impacted on the project completion date. Those of you that have attended the “Programming, Record Keeping and Delay Notices” workshop Pyments have delivered in various guises over the last 20 years, will be familiar with the mantra “Records, Records, Records”.

The workshop unashamedly reinforces the importance of record keeping and provides tangible demonstration as to how the success or failure of time (and money) entitlement documents hinges upon the records available. A lack of good records will severely prejudice the success of a claim, and may result in no demonstrable entitlement whatsoever.

The construction industry’s ongoing challenge with the adequacy in both content and volume of record keeping has been an issue which started long before Back to the Future hit the cinema screens (I’m reliably informed!). The Society of Construction Law Delay and Disruption Protocol (1st Edition) advised on record keeping good practice back in 2002. By the time the 2nd Edition was published in 2017 one of the most significant amendments was the section devoted to record keeping, which had substantially increased in information and advice. This is an indication that the preceding 15 years had not seen sufficient improvement in construction industry record keeping. 

The Protocol advises on both the format and accessibility of records to be used to facilitate managing progress of the Works and the resolution of delay and disruption. The Protocol lists numerous examples of records which ought to be taken which in general terms fall into six categories:

  • Programme
  • Progress
  • Resource
  • Costs
  • Correspondence & Administration
  • Contract & Tender Documents

Step into the DeLorean again and return to the present day. The construction industry’s immediate response to the Covid-19 crisis had the Government and the Construction Leadership Council (CLC) collaborating on various advice and guidance notes ranging from safe operating procedures to providing template delay notice letters. “Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency” issued by the Government on 07/05/20 confirms:

“Responsible and fair behaviour is strongly encouraged in performing and enforcing contracts where there has been a material impact from Covid-19…in relation to…giving notices, keeping records and providing reports under the contract (recognising that the need to keep records of contractual behaviours and decisions… is important).”

Given the potentially complex and unknown experiences construction projects have to contend with in the current climate, there is unquestionably an essential requirement to maintain comprehensive records, no matter which form of contract is being used, or the type of work being undertaken, to ensure respective parties have all the necessary evidence to support available entitlement to additional time and money. 

It doesn’t matter where you are on the space-time continuum and the conditions prevalent at the time, the consistent message is one of “Records, Records, Records”.  

Pyments Project Monitoring department are specifically tasked with maintaining detailed progress records. While the service benefits our clients by providing up to date and time relevant progress information to allow proactive decisions to manage and mitigate any potential delays, the service does also ensure extensive progress record information is available and which will ensure the Employer / Contractor / Sub-Contractor entitlement to additional time and/or money is not prejudiced by a lack of information.

Undertaking retrospective construction delay analysis which has had the benefit of Pyments Project Monitoring service is the Back to the Future equivalent of travelling back to 1955 with the Sports Almanac on the passenger seat of the DeLorean. A book of records which has been compiled contemporaneously and which contains all the historical facts about a particular sporting event or alternatively your construction project! Both the Sports Almanac and the Project Monitoring Reports may put you in a far greater financial position if the records are used appropriately; you just need to make sure the information doesn’t fall into the wrong hands!

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