iN sf z S Oe Poe ‘uc OD THE SOCIETY OF CONSTRUCTION LAW DELAY AND DISRUPTION PROTOCOL October 2002 (October 2004 reprint wwwesclorg.ak ‘www 2otprotocol. com,Puilished by the Society of Constrcton Law, ‘Audministative Office, 67 Newbury Street, ‘Wantage, Oxfordshire, England, OX2 8D, tel 01238 770606 fax: 01235 770880 ‘email: adminis org.uk ‘www.sorguk © Society of Constretion Law October 2002, llrightsreserved. Except as expressly permite by law, no part of this publication may ke reproduced, stored in retrieval system o tansmited in any form or by any means without he prior writen permission ofthe Society ‘of Construction Law. Consent wil usualy be given for extracts o be quoted provided the Soiety i Tully credited. Enquiries concerning reproduction shouldbe sent by email to feedback @eotprtacol.com. ISBN 0.9543831-1-7 Printed by Pintmost (Souther) LeEnployer Delay. Proper analysis ofthe facts may reveal the tne case without argument 1.104 Where an Employer Risk Event and a Contractor Risk Event have concurent effect, the Contractor may not recover campensaton in respect ofthe Employer Risk Event unless ican separate the loss andfor expense that flows fom the Enployer Risk Event from that which flows from the Contactor Risk Event, Hf i€ would have incurred the tlditonal costs in any event as a result of Contractor Delays, the Contractor will not be entitled to recover ‘ose additional costs, In most cases this will mean that the CConteactor will be entitled to compensation ony for any prvi by which the Employer Delay exceeds the duration of tte Contractor Delay, 1.105 The loss andlor expense flcing from an Employer Delay cannot usually be distinguished fiom that flowing from CConractor Delay without the following: (0.5.1 an asplanned programme showing how the Contractor reasonably intended to carry out the ‘work and the as-planed critical path 1.1052 an as-built programme demonstrating the work and Sequence actually cared out and the ab-bult criieal path; 0.53 the identification of activites and periods of time that were not par ofthe original scope; 1.10.4 the ientfation of thse atvitie and periods of ime that were not part ofthe orginal Seope and that are also atthe Contractor's isk as to cos; and LMS the identification of cots atsibuable to the two preceding subsections 14106 This analysis should be co-ordinated with any analysis carried out by the Contractor to establish its rights to an EDT, while remembering thatthe entilement to an EOT and tte ctitlement to compensation may not be co-extensve 1.10:7-Mlustations showing the application of the Protocol to suntions where there is lea, concurent delay, and concurrent effects of Sequential delays and the effects of Contractor recovery plans are attached 3s Appendix D. Til Time for assessment of prolongation costs 1.111 Liabtity for compensation must first be established by showing that the prolongation has been caused by an Employer Risk Event. Once it is established that ‘compensation for prolongation is due, the evaluation of the sum due fs made by reference tothe period when the SCL Deliy and Disruption rote Oar 2062 aeect of the Employer Risk Event was felt, not by Feference 0 the extended period at the end of the Guidance 1.112 Arguments commonly arse as to the time when recoverable prolongation compensation is to be assessed: is it to be susessed by reference to the period when the Employer Delay occurred (when the diily or weekly amount of eapendiure and therefore compensation may be high) or by reference to the extended period atthe end of the contact (when the amount of compensation may be much lower)? 1.113 The answer to this question is thatthe period tobe evaluated is that in which the effect ofthe Employer Rsk Event was fa Lie L114 amounts of compensation per day for prolongation were pe-agreed, then the point in tine when the compensable prolongation occured would need to be consistent with what hasbeen agreed. Float asit relates to compensation 1.121 Was a result of an Employer Delay, the Contractor is prevented from completing the’ works by. the lanned completion date (being date ‘arler than the contract completion date), the ‘Contractor should in principle be entitled to e paid the fests directly caused by the Employer Delay, rotwithstanding that there is no delay fo the contract ‘completion date (and therefore no entitlement 0 an BOT), provided also that atthe ime they enter into the contract, the Employer is aware of the Contractor's intention to complete the works prior to the contract ‘eompletion date, and that intention is realistic and achievable, Guidance 1.122. Itis important to understand the sgnicance of the statement hove, and to contrast it with the poston taken in the Protocol onthe effect of total float on EOT (see Guidance Section 1.3). In relation to EOT, the Protocol tkes the psiton that an Employer Delay should not result in an OT lnless it is predicted to reduce to below zero the ill float cox the activity paths affected bythe Employer Delay. When itcomes to compensation, the Protocol consider that, unless there is agement tthe cantar, the Contractor should be SCL Dea nl DiratonProea Oster 2972