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Delay Analysis Horses For Courses

“Horses for courses” is an often used phrase, particularly in Pyments’ offices. Perhaps its popularity is in no small part down to a significant number of the team enjoying a day-out at the races; during the Cheltenham Festival the office resembles the Mary Celeste!

The phrase alludes to the fact that a racehorse performs best on a racecourse to which it is specifically suited. This is then applied so that different people are suited for different jobs or situations, and what is fitting in one case may not be fitting in another.

And so to construction delay analysis! There are many differing methods of analysis and much like an expectant punter stood at the finish line on Gold Cup day, the decision on what horse to back (or delay analysis to choose!) must be weighed up against several competing factors.

Authoritative guidance on how to progress and defend delay and disruption claims is provided by the Society of Construction Law publication of its “Delay and Disruption Protocol”. It is not intended to take precedence over the express terms of a contract or be a statement of law, but instead represents a “…scheme for dealing with delay and disruption issues that is balanced and viable.”

The Protocol (2nd Edition) was published in February 2017 following various developments in the law, changing construction industry practices, and feedback on the 1st Edition (published in 2002). Two key alterations relevant to this article included:

  • The recommended guidance for the contemporaneous submission and assessment of EOT claims, rejecting a “wait and see” approach.
  • A move away from one preferred delay analysis methodology. Instead, there is a list of factors that should be considered before applying a particular methodology.

The “wait and see” approach would be like a horse falling at the first on the far-side of the track, waiting for the un-seated rider to get back on and continue with the race, and the commentator not informing the unsighted punter that his horse is not going to finish at the same time as the others. You can see why the Protocol does not advocate such an approach!

Contractors are recommended to promulgate the time and monetary impact of Employer risk events / matters as close in time as possible to when the event actually occurs. Likewise, the Contract Administrator should assess the EOT application within a reasonable time thereafter. A stockpiling of the submissions and/or assessments of EOT events is discouraged; the benefit of this is two-fold:

  • The parties can consider mitigation measures; and
  • The parties can understand the risks and obligations with certainty around a realistic completion date.

In instances where contemporaneous EOT claims are submitted the Protocol does recommend the demonstration of the impact of Employer risk events on the critical path is undertaken using a “time impact analysis”. This requires a logic linked baseline programme, updated progress programmes, and the input of delay events into the programmes. The critical impact of delay events is assessed “at the time” and represents the best chances of agreeing entitlement.

To continue with the horse analogy, the Protocol does recognise that “you can take a horse to water, but you can’t make it drink”! There is a section which refers to delay analysis undertaken after completion of the works, or significantly after the effect of an Employer risk event.

In such circumstances the criteria to be considered when determining the delay analysis methodology is listed as including:

  • the relevant conditions of contract;
  • the nature of the causative events;
  • the nature of the project;
  • proportionality (both time & cost);
  • the nature, extent and quality of both the records and/or programme information; and
  • the forum in which the assessment is being made.

The overriding objective for such delay analysis is that the conclusions derived are sound from a common sense perspective.

In this respect the Protocol may be taking heed from the judgement passed down in Skanska v Egger (2004) when commenting upon the approach of the experts:

“It is not advisable to overpower the court with information and numerous delay charts which are difficult to understand…there is a lot to recommend the ‘keep it simple’ philosophy…it is fundamental the delay analyst is objective, meticulous as to detail, and not hide bound by theory as when demonstrable facts collide with computer programme logic.”

The Protocol provides a table which can be applied depending upon the scenario the delay analyst finds themselves in. By utilising this table it should be evident which ‘horse’ is not suitable given the relevant ‘course’ you find yourself on. From there Pyments recommend consideration is given to demonstrating the critical path and the timing of events which in turn delay the critical path.

Under such circumstances you will have picked the right horse, for the right course, and will even have the right jockey riding. More often than not the odds will be in your favour however beware, as we know every now and again the punter picking on names and colours romps home!

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