Extensions of Time, Delay Analysis and Prolongation Where are we? Where are we going? Extensions of Time, Delay Analysis and Prolongation Where are we? Where are we going? SCOTT ADAMS, SCOTT ADAMS CON[.]
Extensions of Time, Delay Analysis and Prolongation: Where are we? Where are we going? SCOTT ADAMS, SCOTT ADAMS CONSULTANTS LTD., UNIT A5, 17/F MAI LUEN INDUSTRIAL BUILDING, 23-31 KUNG YIP STREET, KWAI CHUNG, HONG KONG TEL: 2512 1708 Topics: • Programmes and Project Management • SCL Delay and Disruption Protocol Rider (Delay Analysis Techniques) • Recent Cases on Delay and EOT • Prolongation Costs - Costain v Charles Haswell • Liquidated Damages: A New Test for Penalties Programmes & Project Management: • • • • A programme is a project management tool … … and nothing more Not devised for political, or tactical purpose “The programme … is not contractual in the same sense as the specification, since neither the contractor or the employer are bound by it The programme is what it is – a document indicating the intent of the contractor at the time he furnishes it …” (Max Abrahamson) Programmes & Project Management: • Vivergo Fuels v Redhall Eng’r’g Solutions [2013] • Contractor’s employment terminated for not keeping programme up to date • [374]: “In summary therefore the need for the revised programme was not some mere unimportant obligation Rather it went to an important aspect of the project, the time of completion and on a Project such as the present that was relevant not only as a matter of management of Redhall's works but the entire Project It was not made less important by the existence of the Rev Programme, the draft Rev Programmes in December 2010 and January 2011 or the look-ahead programmes.” Programmes & Project Management: Devise a sound, logical programme (and method statement) Work to the programme until it becomes impossible for any reason; Record the reason as fully as possible; Update/Revise the programme to account for the reason (show any delay honestly and fearlessly); Repeat steps 2-4 in respect of each change which occurs Programmes & Project Management: Should lead to an incrementally updated / revised programme, showing all delays as they unfold Backed up with detailed records of what changes have occurred, and why … reading like the chapters of a book And then no need for any further/new substantive analysis of the delays So why does this never happen …? Programmes & Project Management: Contractors often not have the time/resources to devise a logical, sound and resource-loaded programme and/or keep such a programme up to date with all changes; All parties have an aversion to having their delays shown on a programme GCC Clause 50(4): (After EOT award) “… the Contractor shall revise the programme referred to in Clause 16 accordingly.” Programme incorrectly regarded as ‘binding’ PROGRAMME OFTEN NOT WORKED TO! SCL Delay Protocol: Rider (2015) Original SCL Delay Protocol 2002 (Reprint 2004): Widely quoted (although not so widely adhered to) “Delay and disruption issues that ought to be managed within the contract all too often become disputes that have to be decided by third parties The number of such cases could be substantially reduced by the introduction of a transparent and unified approach to the understanding of programmed works, their expression in records, and identifying delay and disruption.” SCL Delay Protocol: Rider (2015) Original SCL Delay Protocol 2002 (Reprint 2004); “The Protocol recommends that, in deciding entitlement to EOT, the judge or arbitrator should so far as is practicable put himself in the position of the CA at the time the Employer Risk Event occurred.” [3.2.11] “The methodology described in this section is known as ‘time-impact analysis’ The Protocol recommends that this method be used wherever circumstances permit, both for prospective and retrospective delay analysis.” SCL Delay Protocol: Rider (2015) “ [A] key difference introduced by Rider to the Protocol is the removal of a preference for a particular delay analysis where that analysis is carried out at a time distant from the delay event or its effect.” [Other main difference] “… the contemporaneous submission and assessment of EOT claims is elevated to a core principle.” ‘Time-Impact’ analysis still recommended during the course of the project (Guidance Section 3)