In partnership with the CIOB, Claims Class is running a series of monthly webinars on construction claims. The webinars cover some of the modules from the Construction Claims e-courses. In this webinar, we took a look at preparing a delay analysis.

At the end of each webinar, we invite questions and send attendees answers to any questions that we do not have time to answer during the webinar. We’ve received good feedback from the two previous blogs on Q&A: Contract Administration and Q&A: Types of Claim. So, I’ve decided to do the same for this month’s blog. The following are questions and answers from the webinar on Delay Analysis.

Question 1

Question: Who is the owner of the float when the contractor has delayed and when the contractor has accelerated?

Answer: Delays will consume float and acceleration will create it. If regular progress updates are created (as they should be), the programming software will automatically take into account float consumed or created and predict the time for completion at the data-date of the update.

Question 2

Question: After the delay analysis on the updated schedule nearest to the delay event, do we then revise the remaining work to create a Revised Schedule, or simply continue the update on the newly impacted schedule?

Answer: As far as I am aware, there is no hard and fast rule about this. You will be creating a delay analysis to demonstrate your claim for an extension of time, so at this point the extension will not have been awarded. Consequently, one school of thought says that there is no requirement for a revised programme until the extension of time is awarded. On the other hand, if there has been an event that has affected the programme, then you should take it into account in your updates. This will help demonstrate that the event, which is the subject of your claim, is actually affecting the programme.

Question 3

Question: Should we maintain the logic for TIA (Time Impact Analysis), or change the logic according to the activities happening on-site? What is the best option and why?

Answer: You should maintain the logic of the current programme. If, however, things have been “as-built” to a different logic, this will be captured when you insert the actual start and completion dates of the activities.

Question 4

Question: Can a contractor use more than one type of delay analysis method in a delay claim with multiple delay events?

Answer: It would be illogical to do so. If I came across a claim that used multiple methods, I would suspect that the contractor is using the most advantageous form of analysis to suit each individual circumstance. I would therefore not recommend it.

Question 5

Question: How could we predict the delays if there is a sudden mishap at the site?

Answer: You can’t predict such a delay. What you can do, however, is predict the effect of a delay on the time for completion as soon as you can ascertain the start and finish of the delay. You do this by performing a delay analysis. This is what FIDIC and the SCL Protocol advise.

Question 6

Question: We have five delay events from the contractor, all of them finishing after the project completion. We have other delay events, which also finished after the completion date, from the employer. So how do we separate the responsibility of the delay and prolongation costs?

Answer: The project cannot be completed until all activities are finished, so a delay event cannot finish after the project completion.

Question 7

Question: Does a revised programme supersede the baseline programme?

Answer: Yes. It is necessary to produce a revised programme when the current programme (which could be the baseline or an earlier revision) is no longer appropriate. Reasons for this could include an extension of time being awarded, the contractor deciding to change the sequencing or timing of their operations, or acceleration measures being necessary to meet the prevailing time for completion.

Question 8

Question: Is “Impacted As-Planned” accepted as a method of delay analysis, even though some contracts stipulate that it cannot be used?

Answer: If the contract stipulates that it cannot be used, then both parties have agreed that it cannot be used. It would not be acceptable in such circumstances.

Question 9

Question: What is the difference between substantial and sequential concurrency?

Answer: Sorry, I have never heard of “substantial concurrency,” so I cannot advise you on this. Sequential indicates that one thing follows another. Sequential is therefore entirely different from concurrent, so I don’t see how “sequential concurrency” can even exist.

Question 10

Question: The contractor is not allowed to change the durations of activities (crashing) in any revised programme to allow for proper comparison, right?

Answer: I disagree. If the contractor revises their programme, they are at liberty to alter the sequence and timing. For example, if the project is falling behind, the contractor has an obligation to re-programme to meet the prevailing completion date. They may need to work longer hours or bring in additional resources to achieve this. This would mean that activities could be completed in shorter durations. In this case, they would be correct to reflect this in the revised programme.

If, however, the contractor is just manipulating the forecast activities to make it look as though they will complete on time, this would be both unacceptable and unwise. If the contractor later submits an extension of time claim in which they assert they were delayed, it would be very easy for the Engineer to reject. The facts would show that for several months, the progress reports indicated that there were no delays. The message here to contractors is: don’t try to manipulate the truth because, if you are entitled to an extension of time, it will come back to bite you.

Question 11

Question: In the Collapsed As-Built Method, can you please elaborate on how employer risk can be removed? For instance, if the employer takes 30 days to approve a material. How can you show the employer delay if there is no baseline programme to use as a benchmark?

Answer: You would need to find something to show that the 30-day approval period was excessive. Sometimes the review and approval periods are stated somewhere in the contract. If not, you will have difficulty establishing that a delay occurred. This is one of the many reasons why it is essential to have an acceptable baseline programme in place as soon as possible.

Question 12

Question: When does a revised programme come into existence? Is it because the contractor wants to correct the baseline programme for some reason? Or is it due to employer events or instructions?

Answer: Either reason would make it sensible to revise the programme.

Question 13

Question: If we have a baseline and then multiple approved revised programmes within the contract time frame, how can we use them in the delay analysis?

Answer: You should base the delay analysis on the latest revised programme.

If you found this Q&A blog useful, join us live for the next webinar in the series, where we’ll be discussing how to compile and present your claims and responses for success. Register now.