02 Expert Services / Worked example

Same delay, four answers

A project finishes eight weeks late. The employer caused some of the delay, the contractor caused some. How much extra time is the contractor entitled to, and how much does it pay in damages?

The answer depends on the facts, and also on the method used to analyse them. Here one small programme is analysed four ways, using methods described in the Society of Construction Law’s Delay and Disruption Protocol. Two methods give five weeks; two give three.

Illustrative. The programme, events and damages rate are invented and deliberately simple, so every number can be followed. Real analyses carry hundreds of activities and much more argument about the facts.
Planned completion-baseline programme
Actual completion-- late
Extension of time-depending on the method
The events
    Four methods, two answers

    Select a method. Grey bars are the baseline; blue bars are the programme that method works from; red is employer delay, amber is the contractor's own delay.

    Why they differ

    Two weeks that disappear

    When the employer instructed the envelope variation, the envelope had four weeks of float, so the six-week change was forecast to delay completion by two. The prospective methods grant those two weeks.

    By the time the envelope was finished, the contractor’s own fit-out overrun had become the path that actually drove completion. Looking back, the variation was never on the critical path, so the retrospective methods give nothing for it. The employer’s delay was real; whether it counts depends on when, and how, it is measured.

    Neither answer is wrong in the abstract. The contract, the records kept and the stage of the dispute decide which method is appropriate. NEC4, for example, assesses a compensation event prospectively, against the Accepted Programme current at the time [2]. That is why the choice of method, and the programme records behind it, deserve as much attention as the events themselves.

    Sources
    1. Society of Construction Law, Delay and Disruption Protocol, 2nd edition, February 2017: methods of delay analysis, including impacted as-planned, time impact analysis, as-planned versus as-built windows and collapsed as-built.
    2. NEC4 Engineering and Construction Contract, June 2017: clause 63.5, assessing the delay to the Completion Date against the Accepted Programme.
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