Delay & Disruption

Probably the most frequent of disputes

Delay

Delay to project completion claims are very common and due to the frequency of this type of claim, there is a particular need to have an in-depth knowledge of the applicable methods of analysis and the current law.

Subjects such as likely or actual delay, concurrency, who own's the float in the programme, time at large, liquidated damages, penalties, the prevention principle and condition precedent notice requirements are but some of the likely issues that will arise in this type of dispute.

The types of delay analysis* that can be undertaken include;

  • Impacted As-Planned
  • Time Impact
  • Time Slice Windows
  • As-Planned v As-Built Windows
  • Longest Path
  • Collapsed As-Built

* Analysis types listed are as identified in the current Society of Construction Law Delay and Disruption Protocol although further methods which may be appropriate are also described in the American Association of Cost Engineering International Forensic Schedule Analysis Recommended Practice No 29R-03.

The final choice of method will depend on a number of factors. The three most important considerations are usually the Contract wording, the quality of the records available and the proportionality of the cost of the analysis with respect to the amount in dispute.

You should evaluate the contract terms, records and all other circumstances and match them to the most appropriate method of analysis.

Delay is an area of law that often evolves and the approach taken by the court is normally very specific to the circumstances under consideration and not of general application to all disputes. Understanding the related aspects of law is very important.

Disruption

Changes in the construction sequence due to non critical delays or re-sequencing invariably leads to some degree of disruption and significant production losses can occur. However the effect of disruption whilst it is occurring can often go largely unnoticed and therefore unclaimed even if it results from circumstance that the contractor is not liable for.

Disruption claims can be extremely complex and difficult to prove. The success of any such claim usually depends on the quality of records available.

Techniques to prove demonstrate disruption such as the "Measured Mile" or "Productivity Loss Factors" are available but it is the factual evidence which sits alongside these types of analysis that is the key to success.

Records, records, records - cannot be repeated often enough. Ensure that your records are retained safely and centrally.

Delayed design, late design or defective design, for example, can cause huge disruption not just at the beginning of the project but throughout and is notoriously difficult to reconstruct retrospectively.

In the end whatever analysis you carry out, the key to disruption claims is contemporaneous factual evidence. The more you have, the easier it will be to win your claim.