Society of Construction Law

Hong Kong
18 February 2016

Doug Wardale
Project Co-ordination Services (HK) Ltd.

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 Introduction to Rider 1to the SCL Delay and
Disruption Protocol.
 Prospective versus Retrospective – is there a
correct method ?
 Whether the Court has changed its position
on delay assessment and what guidance can
we gain.

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 Preamble
 Key Differences
 Where we are now ?
 Conclusion – Looking Ahead

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 Core Principles
 Guidance Section 1- Core principles
 Guidance Section 2 – Programmes & records
 Guidance Section 3- EOT during project
 Guidance Section 4- Delay analyses time
distant from delay event

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 Amendments
 Reasoning

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 Guidelines on the Protocol’s position on Core
Principles and on other matters relating to
delay and compensation.

 Compliance with contractual requirements

relating to:
• notices, particulars, substantiation and
assessment;
• dealt with as close in time as possible to the
delay event arising.

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Guidelines on dealing with extensions of time
during the course of the project.

 Minor changes to current version.

 Sets out recommended procedure for dealing
with EOT applications.
 Programmes and records – recommends
following Section 2.

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Extension of Time Procedure
 Requirements of conditions of contract should be
strictly followed.
 Sets outline procedure and content of submission.
 Deals with CA’s evaluation.
 Subject to the contract recommends CA should
make own assessment in the absence of a
contractor’s submission.
 The EOT should be granted to the extent the
Employers Risk Event is predicted to prevent the
works being completed.

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Guidance
 Describes the recommended method – Time Impact
Analysis.
 Deals with concurrent effects.
 Programme should be used in conjunction with
contemporary evidence to:
• ensure EOT is reasonable and consistent with the factual
circumstances;
• application of common sense and experience.
 Overarching the above any resulting EOT must be
consistent with the contractual requirements
regarding entitlement.
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Guidelines on Delay Analyses Time Distant
from the Delay Event
 Introduction
 After the completion of the works, or
 considerably after the occurrence of the delay
event or its impact.
 Overriding objective of ensuring that the
conclusions derived from the analysis are
sound from a common sense perspective.
 Choice of delay method.

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Different Methods of Delay Analysis

• Cause and Effect type of analyses

• Effect and Cause type of analyses
• Critical Path Analysis
• Determining criticality
• Determination of delay impact

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Commonly Used Methods of Delay Analysis
• Impacted as-planned analysis method
• Time impact analysis method
• Time slice windows analysis method
• As-planned versus as-built windows
analysis method
• Longest path analysis method
• Collapsed as-built analysis method

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2nd edition of the Protocol

• Case Law
• Record keeping
• Global claims and concurrent delay
• Approach to consideration of claims
(monetary) during the course of the project
• Model clauses
• Disruption

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 Review methods

 Which method should be adopted?

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 Prospective
• Identifies the likely impact of historical progress
or delay events on the completion milestone.
 Retrospective
• Identifies the actual impact of the delay events on
the identified actual or as-built critical path.
 Specific Method
• Static
• Dynamic

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 Impacted As-Planned Analysis
 Time Impact Analysis

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 Involves introducing delay event sub-networks
into a logic linked baseline programme.
 Recalculation to show predicted completion dates
within the baseline programme.
 Baseline programme must be reasonable,
realistic, achievable and properly logic linked.
 Simplest and least expensive form.
 Limitations as it does not consider actual
progress and changes to original planned intent.
 Produces theoretical results.

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 Involves introducing delay event sub-network
into a logic linked baseline programme .
 The baseline programme is the most
contemporaneous update at the time of the event
(Updated Programme).
 The sub-network and the updated programme
are re-analysed to demonstrate the prospective
impact on the predicated completion dates.
 Likely to cause delay on the programme / critical
path.

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 Time Slice Windows Analysis
 As-Planned versus As-Built Windows Analysis
 Longest Path Analysis
 Collapsed As-Built Analysis

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 Produce a series of updated baseline programmes.
 Reflecting the actual status and future sequence of work to
completion.
 Usually monthly.
 Time slices reveal contemporaneous or actual critical path
and the delay status at each time slice throughout the
project.
 Identify the causes of delay in each time slice.
 Actual progress and future sequences and durations are
verified as being reasonable, achievable and properly
logically linked.

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 Usually applied when there is concern:
◦ validity or reasonableness of the baseline and /or
updated programmes;
◦ few contemporaneous programme updates.
 Develop contemporaneous or actual critical path.
 Done by common sense and practical analysis of
available facts.
 Incidence and extent of delay determined by
comparing key dates along the critical path against
the planned dates.
 Investigate project records to determine what
might have caused delay.

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 Determination of the retrospective as-built
critical path.
 Verify / develop a detailed as-built
programme.
 Trace the longest continuous path backward
from the actual completion date.
 Determine the incidence and extent of critical
delay by comparing key dates along the as-
built critical path with the corresponding
planned date on the baseline programme.

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 Opposite approach to Impacted As-Planned.
 Instead of adding theoretical employer delay
events extract actual employer delay events.
 Hypothetical - what might have happened.
 Requires a detailed logic linked as-built
programme.
 Rare, time consuming, and complex to
construct.

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 Analysis Critical Path Delay Impact Specific
Method of Analysis Requires
Type determined determined method

1 Impacted As- Cause and Prospectively Prospectively Dynamic Logic linked baseline
Planned Analysis Effect programme.
A selection of delay events
to be modelled
2 Time Impact Cause and Contemporaneously Prospectively Dynamic Logic linked baseline
Analysis Effect programme.
Updated programmes or
progress information with
which to update the baseline
programme.
A selection of delay events
to be modelled.
3 Time Slice Windows Effect and Contemporaneously Retrospectively Dynamic Logic linked baseline
Analysis Cause programme.
Updated programmes or
progress information with
which to update the baseline
programme.
4 As-Planned v As- Effect and Contemporaneously Retrospectively Static Baseline programme.
Built Windows Cause As-built data.
Analysis
5 Longest Path Effect and Retrospectively Retrospectively Static Baseline programme.
Analysis Cause As-built data.
6 Collapsed As-Built Cause and Retrospectively Retrospectively Dynamic Logic linked as-built
Analysis Effect programme.
A selection of delay events
to be modelled.

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 NEC3
 MTRC
 Standard Form of Building Contract 2005

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 Relies on Compensation Event
 Notification of Compensation Event
• “…event which has happened or which expects to
happen…”
 Quotation for Compensation Event
• Quotations comprise …any delay to the Completion
Date
• “If the programme for remaining work is altered by
the compensation event, the Contractor includes the
alterations to the Accepted Programme…”
 Programme detail governed by Clause 31

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 “If, in the opinion of the Engineer the Contractor
is or is likely to be delayed in achieving a
Completion Obligation by reason of…”
 “…28 days after the cause of any delay has arisen
or as soon thereafter…deliver to the Engineer full
and detailed particulars of the claim…”
 “and whether such delay occurs before or after
the time or extended time fixed for achieving
such Completion Obligation…either prospectively
or retrospectively the time…shall be extended by
such period…”

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 First Notice – within 28 days of the commencement of
an event likely to cause delay to the completion of
the Works (with particulars).
 Second Notice – within 28 days of the First Notice
(substantiation).
 Continuing effect – provide interim particulars every
28 days until delay ceases.
 14 days after the delay ceases submit final
particulars.
 The Architect shall give the extension of time…as
soon as practicable but in any case within 60 days
after the receipt of the particulars submitted with the
second notice.

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30
 Walter Lilley v Mackay & Others
 Cleveland Bridge v Severfield
 Obrascon v HM Attorney General for Gibraltar

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 “…irrespective of the methodology,
fundamentally the conclusion of the delay
analysis must be sound from a common
sense perspective in light of the facts that
actually transpired on the project.”

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 “This is because a theoretical delay analysis
which is divorced from the facts and common
sense is unhelpful in ascertaining whether in
fact the relevant delay event caused critical
delay to the completion date and the amount
of that delay.”

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“Don’t look in the crystal ball read the
book.”

Stefan Stern 2014

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