Claim Essential 3 Elements:

1- Cause (Delay Events)

2- Effect (Impact - Quantum)

3- Causal link (Factual & Legal)

First Element:- Delay Events Classification

- Contractor Risk Event (CRE): No Extension of Time Entitlement, Inexcusable

- Extension of Time Events - Excusable:

•     Employer Risk Event (ERE), Compensable
•     Concurrent, not compensable unless ERE exceeds CRE or damages can be segregated
•     Neutral Event, usually not compensable

Delay Related Measures:

Second Element:- Effect (Impact) Quantification

- Delay Analysis Approaches:

•     Prospective Delay Analysis (Time impact analysis/Modeled Additive): Fragnet modeling and insertion to a selected unimpacted programme/time-schedule either a baseline or an appropriate update where validation protocol and/or enhancements can be applied whenever required. It’s suited primarily for the use in identifying and quantifying potential delays rather than actual delays.
•     Forensic Retrospective Delay Analysis (Observational Planned vs Updates/As-Built ‘or’ Modeled Additive-or-Subtractive): A technical field of studying and investigating the schedule calculation using different methods (usually requires many subjective decisions by professionals) to measure and quantify delay focusing on causation to resolve EOT disputes.

Determination and Quantification of Excusable and Compensable Delay. An additive-modeled schedule by itself does not account for concurrent delays, pacing, acceleration and compensability. However, it is possible to analyze for approximate concurrency by comparing two additive-modeled schedules (one by inserting all owner-caused and force majeure-caused impact events into the baseline & another one by inserting all contractor-caused impact events into the baseline). It can be Global Insertion (total impact) or Stepped Insertion (in chronological order).

Baseline/not-started-activities Enhancements: Each activity to be 0.5% to 5% of contract value - Separate as per responsible party - Add activities to enhance the level of detail - Divide activities based on progress records.

Actual/in-progress-activities Enhancements: Tabulate all sources of data - Show discrete activities for delay events and influences - Subdivide vague or general activities.

Investigations: If update is the primary source, check: (Actual dates vs data date - Using the most reliable source/ interviews if possible - Changes in IDs & scope) - Accuracy of dates of significant activities to be 1 working day, and other activities to be 5 days - Consistency of dates along the updates - Change in longest path/ controlling activities.

Note: No forensic schedule analysis method is exact. The level of accuracy of the answers produced by each method is a function of the quality of the data used therein, the accuracy of the assumptions, and the analyst subjective judgments.

SCL Delay and Disruption Protocol added 11.7 Other methods, which may be reasonably deployed in particular circumstances …, include: … time chainage analysis, line of balance analysis, resource curve analysis, and earned value analysis.

11.8 In order to avoid or at least minimise disputes over methodology, it is recommended that the parties try to agree an appropriate method of delay analysis.

Overall, prospective analysis is helpful for the parties to move with lights on about the potential effect of the delay and the extension of time entitlement. On contrary, it can never be accurate due to blindness about what will be the actual effects and damages. Therefore, logic retrospective analysis is then helpful to move the assessment from foresight to hindsight.

Third Element:- Causation (Casual link)

• Factual (Cause-in-fact): But-for-test/ But for the action, the result would not have happened.

• Proximate/Legal: Contractual risk allocation/ Legal liability and direct contribution.

Contractual Entitlement

• Typically, construction contracts contain provisions entitling the contractor to an extension of time on the occurrence of a particular event provided the progress of the works or time for completion is delayed as a consequence.

Contractual Compliance

• Generally, within an extension of time clause, the contractor will be obligated to submit notice(s) and detailed particulars within a specified time frame.

Note: Entitlement is a prerequisite to compliance & delay analysis.

EOT Claim Content (Index sample):

Popular Articles