Assessing the New United Kingdom Protocol for Dealing

with Delay and Disruption

Steve Scott1; Richard Anthony Harris2; and David Greenwood3

Abstract: The recent publication of the U.K. Society of Construction Law’s protocol for dealing with delay claims has finally provided
a good opportunity to make progress with a continuing difficulty that besets most substantial construction projects. The protocol makes
recommendations on the issues that arise when delay claims must be managed. A report of recent research is conducted to test how U.K.
professionals understand some of these issues and how they deal with them in practice. The conclusions show some areas of good
agreement, notably in the way that early completion should be handled and the way that prolongation costs should be assessed. There are,
however, areas that give rise to some concern. The methodology ‘‘time impact analysis’’ appears not to be well used in practice, and it also
seems that contractors will have difficulty with the position taken on float ownership and concurrent delays.
DOI: 10.1061/共ASCE兲1052-3928共2004兲130:1共50兲
CE Database subject headings: Claims; Delay time; Time factors; Dispute resolution; United Kingdom.

Background
Numerous studies have shown that construction projects have a
tendency to suffer from delay 共National Economic Development
Council 共NEDC兲 for Building 1983; NEDC for Construction
1988; Bresnen et al. 1990; Scott 1993a,b; Harris 2000兲. Such de-
lays carry potential losses for all parties: for the employer 共client,
owner兲 through loss of use, and for the contractor and subcontrac-
tors through their prolonged presence on-site. As a result, con-
tracts generally contain mechanisms to allocate the liability for
delays and compensate for their impact, including clauses that
deal with liquidated damages, extensions of time, and the reim-
bursement of prolongation costs. Although the approach to deal-
ing with these matters will be governed to some extent by any
legal precedent set in the country concerned, the issues that must
be addressed are universal and complex, and the extent of the
problem is recognized to be great. This is confirmed in a recent
study by Thompson et al. 共2000兲 who compared recent innova-
tions to manage disputes in both the U.S. and the U.K. They
found both construction industries to have similar working envi-
ronments and to be plagued with adversarial attitudes, a rising
numbers of claims, and high litigation costs.
The efficient and effective resolution of a delay claim will rely
upon the ability to quantify a given delay and to evaluate its
1
Senior Lecturer, School of Civil Engineering and Geosciences, Univ.
of Newcastle upon Tyne, Claremont Road, Newcastle upon Tyne, NE1
7RU, United Kingdom.
2 subsequent activities may have altered. A 10 week delay on a
Researcher, School of Civil Engineering and Geosciences, Univ. of
Newcastle upon Tyne, Claremont Road, Newcastle upon Tyne, NE1 7RU,
United Kingdom.
3
Associate Dean, School of the Built Environment, Northumbria
Univ., Ellison Place, Newcastle upon Tyne, NE1 8ST, United Kingdom.
Note. Discussion open until June 1, 2004. Separate discussions must
be submitted for individual papers. To extend the closing date by one
month, a written request must be filed with the ASCE Managing Editor.
The manuscript for this paper was submitted for review and possible
publication on January 22, 2003; approved on August 21, 2003. This
paper is part of the Journal of Professional Issues in Engineering Edu-
cation and Practice, Vol. 130, No. 1, January 1, 2004. ©ASCE, ISSN
1052-3928/2004/1-50–59/$18.00.
causation and overall effect. Such claims have the potential to
become disputes either about the validity of the claim or about the
extent of the money/time actually claimed 共Duncan-Wallace
1995兲. Although much has been written about the issues affecting
such claims, it is clear that problems remain due to the inad-
equacy of existing contractual mechanisms in dealing with the
complexity of the situations encountered 共Yogeswaran et al.
1998; Harris 2000兲.
Mechanisms for Assessing Delay Claims
Perhaps the most difficult aspect that must be dealt with when
assessing claims for extensions of time is the mechanism used to
show the impacts of various delays on project completion. At the
heart of most of these mechanisms is the categorization of delays
as culpable, excusable, and compensable 共Kraiem and Diekmann
1987兲. One complication is that not all excusable or compensable
delays will attract an extension of time; this should only be the
case if they have a critical effect on the overall program 共sched-
ule兲. In the case of a delay to a noncritical activity, no extension
should normally be available, that is, of course, unless other
changed circumstances cause the noncritical activity to become
subsequently critical.
These criteria may seem relatively straightforward, but they
are not. For example, the relationship between planned and actual
progress is a fluid, not a static affair. It could be argued that
assessing the impact of a particular event on an ‘‘as planned’’
program is unrealistic, because the durations and relationships of
planned critical path might not mean a 10 week delay to the
project. Indeed, there would normally exist a contractual 共and
common law兲 duty to mitigate the situation by endeavoring to
recoup some of the lost time 共see Yogeswaran et al. 1998兲. Much
has been written on this and other topics within the area, with
many authors offering their own solutions to the complications
that emerge. Knoke and Jentzen 共1994兲, Bordoli and Baldwin
共1998兲, and Kartam 共1999兲 are recent examples, and Wickwire
et al. 共1989兲 indicate the legal position in the U.S.
In essence, the main options for assessing the impact of delays
are

50 / JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004
1. A global solution that ascertains the delay to the project as a
whole, then identifies all delays that are claimable under the
contract and calculates the extension of time due on that
basis, leaving the remaining delay as the responsibility of the
contractor. This approach will not use critical path networks,
and may relate the delays to the contractor’s time/cost ‘‘S
curves’’ 共Rubin et al. 1983兲.
2. A solution that relies on critical path networks to show how
specific delays affected the contractor’s ability to complete
the work, with actual activity durations and the real impact
of delays thus identified. Having established the facts of the
case in this way, some means of showing how individual
delays affected project completion must be adopted. This
might be to remove the employer-responsible delays and ad-
just the network to show how the contractor could have per-
formed in the absence of such delays.
3. Time impact analysis—there appear to be variations on this
method, which either considers delays as they occur 共SCL
2002兲 or by relating to a program update immediately before
the delay considered 共Bubshait and Cunningham 1998兲.
Whichever approach is adopted, the specific impact of indi-
vidual delays on an updated network is recognized, and the
impact on contract completion dates is noted. During the
process, any patently unrealistic logic or durations should be
corrected, by agreement where possible. An important differ-
ence between time impact analysis and Option 共2兲 is that
impacts are recognized at the time they occur, rather than
attempting to understand these complex interactions at some
time in the future.
Which of these methods are being used or which should be used
are important questions. Bordoli and Baldwin 共1998兲 conducted a
study in which 96 respondents from across the industry were
questioned on their knowledge of the methods available. The
most favored approach was one that used as-built bar charts, al-
though 65% of the respondents also identified the use of networks
and recognized the options of adding delays to a planned network
or subtracting delays from an as-built one. Bubshait and
Cunningham 共1998兲 used case studies to compare three network
approaches to delay analysis and concluded that there was no
single method that was preferable in all situations. The choice of
method should be governed by the time and resources available
and on the accessibility of project control documentation.
Particular Problem Areas
It is clear that the ability to analyze delays is greatly enhanced by
the use of critical path analysis, however, within any overall ap-
proach to delay analysis, there are two particularly difficult issues.
These are the problems of the ownership of float and concurrent
delays.
The word ‘‘float’’ is often used rather indiscriminately and
confusingly by construction practitioners and their advisors, par-
ticularly those who do not understand critical path analysis tech-
niques 共Yogeswaran et al. 1998兲. Who should be the ‘‘owner of
float’’ is a vexed question that has been considered by many writ-
ers, among whom are Householder and Rutland 共1990兲, Thomas
共1993兲, Zack 共1993兲, and Yogeswaran et al. 共1998兲. The recom-
mendation made by most commentators is that whatever policy is
adopted, it should be clearly stated in the contract.
The question of how to deal with concurrent delays is essential
for a workable mechanism for assessing delay claims, yet there is
no universally accepted definition of what constitutes concurrent
delay. Broadly speaking, this situation occurs when an activity is
affected by two or more contemporary or overlapping delays, any
JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004 / 51
one of which could have an impact on the completion date. How-
ever, the situation becomes problematic when the causation of
each of the delays is different and would lead to different con-
tractual liabilities 共Rubin et al. 1983兲, an example being where an
activity is delayed at the same time by events attributable to the
contractor, the employer, and/or to neutral causes 共Scott
1993 a, b兲. A further problem is that delays can be interrelated,
even when not concurrent or overlapping 共Majid and McCaffer
1998兲, which is a particular problem because the causes of the
interrelated delays are in different contractual categories, for ex-
ample, where an excusable delay is linked to a later, nonexcusable
one.
The proper assessment and resolution of delay claims have
attracted a considerable amount of attention. In practice, however,
parties in the U.K. have little or no guidance; standard contracts
are notoriously silent on such matters, and there is little useful
case law. This first view is confirmed by Yogeswaran et al.
共1998兲, who state that ‘‘... most contractual regimes ... do not
provide details of the principles governing the assessment of
claims for extensions of time and this is left to the professionals
involved in each project.’’ In the absence of any prior agreement,
the options are either to compromise or to take the matter to
adjudication, arbitration, or litigation. The unnecessary cost in
terms of claims and litigation expense as well as soured relation-
ships is testimony to the failure of the current contractual mecha-
nisms to deal with the complexities of real situations.1 The issues
to be dealt with are clearly very complex, requiring an under-
standing of contract law, contract forms, contract administration,
project planning techniques, and an appreciation of how construc-
tion activity typically takes place. It is not surprising then that
there is much debate, not only about the proper way to deal with
these questions, but also about whether one single approach can
be expected to hold good in all circumstances. In the U.K., the
final version of a new guide to assist with these matters was
published in October 2002 and the next section of the paper high-
lights the main points.
U.K. Society of Construction Law Protocol
To address the issues described previously, the Society of Con-
struction Law 共SCL兲, whose aim is to promote for the public
benefit, education, study, and research in the fields of construction
law and related subjects, has produced a ‘‘Protocol for determin-
ing extensions of time and compensation for delay and disrup-
tion’’ 共SCL 2002兲. The Protocol offers guidance on
1. Core issues relating to delay and compensation;
2. Preparing and maintaining programs and records;
3. Dealing with extensions of time during the course of the
project; and
4. Dealing with disputed extension of time issues after comple-
tion of the project.
The Protocol also contains a comprehensive glossary of terms,
model clauses for the keeping of records and for dealing with
programs, and a set of graphics illustrating points contained in the
Protocol.
The first draft of the Protocol was launched on December 4,
2001, and by the end of the initial consultation period, February
28, 2002, 80 detailed submissions had been received. These were
said to be mostly supportive but also made suggestions for im-
provement. A subsequent consultation workshop was held on May
22, 2002, following which the drafting committee met to review
the observations made at that time. The final edition of the Pro-
tocol was launched in London on October 16, 2002.
 An important question concerning such a document is its pro-
posed legal or contractual status. In this case, the writers have
made it very clear that it is intended just as a guide. In an earlier
version, it was suggested that those who draft contracts might
want to incorporate parts of the Protocol, but this position has
now changed. The new position is that it ‘‘... represents a scheme
for dealing with delay and disruption issues that is balanced and
viable.’’ The drafters of the Protocol,2 who were a subcommittee
of the SCL, hope that in the future most contracts will use the
guidance contained in the Protocol because they will recognize it
as the best way to deal with the issues.
The full version of the Protocol is 82 pages long and so the
description given in this paper must inevitably be a synopsis.
Nevertheless, an attempt will be made to describe the main points
and highlight any unusual suggestions or recommendations.
General Recommendations
The Protocol endorses a number of points as good general prac-
tice and also includes a few reminders to practitioners regarding
issues that are not always fully understood. There is nothing new
here, but in attempting to produce a fully inclusive document,
such statements need to be made. The following come into the
first category:
1. The importance of getting programs accepted and updated
and of keeping good records is stressed 共see also a later
section on this issue兲.
2. The need to deal with extensions of time as soon as possible
after the delaying event is recognized, leading to the require-
ment for interim assessments. The ‘‘wait and see’’ approach,
in which the contract administrator 共CA兲 delays making a
judgment on an extension of time until it is certain the con-
tractor needs one, is strongly discouraged.
3. For varied work 共change orders兲, the possibility of agreeing
on costs and time impacts before the work is done is empha-
sized, although it is recognized that this may not always be
feasible, and, in such cases, the advice is to come to an
understanding as soon as possible after the event.
4. Global claims, that is, ones that do not elaborate in detail on
individual causes and effects are discouraged, because they
are said to be rarely accepted by the courts.
5. Unless the contract makes special allowances, the Protocol
recommends that costs for acceleration should be preagreed
between the parties. This statement recognizes that U.K.
contracts may not provide for acceleration, but where the
contractor and the employer agree that accelerative measures
should be taken, it is wise to agree on the basis for payment
in advance. Clearly, this acknowledges the difficulty of cost-
ing the effects of efficiency losses that may result from ac-
celeration, after the fact.
6. Disruption is seen as quite separate from delay, and ‘‘the
measured mile’’ approach 共i.e., comparing the same work in
disrupted and undisrupted conditions兲 is suggested as the
best way to handle it, although the difficulties of finding
similar work on the same project are recognized.
The reminders are as follows:
1. An extension of time only relieves the contractor from liabil-
ity for liquidated damages and does not necessarily include
any entitlement to compensation for prolongation.
2. It is accepted that the contractor will usually be required to
mitigate the effects of any delay, but the Protocol prompts us
to remember that this should not be seen as expecting that
52 / JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004
additional resources will be provided or that work will be
done outside normal working hours, unless further payments
are agreed upon.
3. When assessing the contractor’s entitlement to compensation
for prolongation, the site overheads included in the tender
should not be used. It is the contractor’s justified actual costs
that are to be paid.
Ownership of Float
The Protocol’s judgment on the ownership of float is that, ideally,
the position should be defined in the contract documents, but
where no specific statements are made, the ‘‘fallback’’ position
should be that float is there to be used by whoever needs it first.
Whether U.K. contracts will actually pronounce on float owner-
ship is brought into question because the Protocol observes that
‘‘... the expression ‘float’ rarely if ever appears in standard form
conditions of contract’’ 共SCL 2002兲. Thus, unless the drafter of
the specific contract document makes an addition to deal with
float, it is the fallback position that may be taken. The Protocol
reflects upon how contractors may react to a rule that allows
employers access to program float and speculates on the possibil-
ity that the contractor may incorporate some additional time in
activity durations. This is seen as ‘‘... perfectly acceptable and
prudent planning practice’’ 共SCL 2002兲.
In reviewing the impact of float on a contractor’s compensa-
tion, the question of early completion is also considered. The
Protocol’s view is that a contractor should be able to recover
compensation for prolongation when delayed by the employer,
even when the project completes within time and thus no exten-
sion of time is sought or granted. This should hold provided the
employer knew of the contractor’s intention to complete early
when the contract was signed and provided there is nothing in the
contract that precludes it.
Concurrent Delay
The Protocol recognizes that the advice it gives on concurrent
delays is a compromise that is believed to be the most appropriate
solution for what it considers to be a contentious issue, exacer-
bated by the absence of agreement in the U.K. as to exactly what
concurrency means. This is somewhat different to the U.S.,
where, even in 1983, Rubin et al. 共1983兲 offered the definition ‘‘...
the term concurrent delays is used to describe two or more delays
that occur at the same time, either of which had it occurred alone,
would have affected the ultimate completion date.’’ Two scenarios
are addressed in the Protocol. These are 共1兲 when an employer-
risk event and a contractor-risk event occur at the same time, and
their effects are felt at the same time; and 共2兲 when employer risk
events and contractor risk events occur sequentially, but have
concurrent effects. The Protocol defines a contractor or employer
risk event as an event or cause of delay, which under the contract
is at the risk and responsibility of the contractor or employer. In
both situations, the remedy is that any contractor delay should not
reduce the amount of extension of time due to the contractor as a
result of the employer delay. Regarding compensation for prolon-
gation resulting from concurrent delays, the view is that this
should be payable only to the extent that the contractor can sepa-
rate additional costs caused by the employer delay from those
caused by the contractor delay. In practice, this is likely to be
governed by the amount by which the employer delay exceeds the
contractor delay. A number of the graphics appended to the Pro-
tocol illustrate how concurrent delays should be managed 共SCL
2002兲.
Compensation for Prolongation
Having accepted that employer delays have affected the contrac-
tor’s performance and the contractor is given either an extension
of time or the need to make payments is recognized, even though
the contract completion date has not been exceeded, there still
remains the problem of how to assess the proper level of payment
for prolongation, i.e., site costs incurred by the contractor for an
extended time on site. What the Protocol makes very clear is that
the levels of compensation should relate to the period when the
employer delay occurred and not to the extended period at the end
of the contract. It is recognized that the contractor’s weekly ex-
penditure at the end of the contract is likely to be a good deal less
than that incurred when the contract is fully underway, thus, the
level of compensation payments would be greater taking the Pro-
tocol’s position, when compared to the ‘‘end of contract’’ alterna-
tive. To aid this often difficult assessment, it is recommended that
prolongation payments be preagreed and would, of necessity, re-
flect the different amounts expended by the contractor at different
stages of the work.
Dealing with Extensions of Time during the Course
of the Project
Wherever circumstances permit, the Protocol recommends that
‘‘time impact analysis’’ is the methodology to be used for assess-
ing extensions of time. The contractor should be required to pro-
duce a subnetwork showing the actual or anticipated effects of the
employer delay that is the subject of the claim and show how this
links into the latest update of the full program. Concurrent delays
should, of course, be identified at this stage and their impact
recognized. The expectation is that relevant documents and
records to demonstrate the contractor’s entitlement will accom-
pany each claim and that common sense and experience will be
brought to bear in both preparation and assessment. It is clear
that, as some say, common sense is not very common, but the
Protocol uses these words to explain the need for sensible and
considered judgement on these difficult matters. Having submit-
ted the claim, the CA will make an assessment and must inform
the contractor with sufficient information to allow the contractor
to understand the reasons for the judgment made. If the contractor
does not accept the decision, the CA should be informed imme-
diately, and if no agreement can be reached, the resolution proce-
dures available in the contract should be invoked. For U.K. con-
tracts, these are likely to include conciliation, adjudication, and/or
arbitration. Leaving such matters to be resolved at the end of the
contract should not be seen as an acceptable option.
Dealing with Disputed Extension of Time Issues
after Completion of Project
Although clearly preferring the time impact analysis technique for
assessing delay claims, the Protocol recognizes that the factual
material available will not always permit such an analysis. Ac-
knowledgement is given to other methods that may be cheaper
and carried out with less information; these are ‘‘as-planned ver-
sus as-built,’’ ‘‘impacted as-planned,’’ and ‘‘collapsed as-built.’’
Whichever method is used, the adjudicator, judge, or arbitrator is
exhorted to consider a contractor’s entitlement by recreating the
circumstances that pertained at the time the claim was made. That
is, not to take account of information about the contractor’s actual
performance on the rest of the contract work following the event
that generated the claim. Other advice given is as follows:
JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004 / 53
1. The interested parties should try to agree to an appropriate
method of analysis before any retrospective assessment is
done.
2. Agreement should be reached as to who is to carry out the
analysis, with consideration given to appointing an ‘‘inde-
pendent expert programming consultant.’’
Programs and Records
Without sensible policies for accepting and updating contract pro-
grams and for keeping good, accessible records, the resolution of
delay claims becomes much more onerous. This is recognized in
the Protocol not only as a core issue but also in the model clauses
contained in the appendices. On dealing with the program, it is
recognized that most contract forms in the U.K. are quite vague
about a number of matters. The following are the main points
from the guidance section and from the model specification
clauses:
1. The contractor’s initial program for a large complex project
should be submitted within 2 weeks of awarding of the con-
tract and should show at least the works to be completed in
the first 3 months. A program covering the whole of the
works must be submitted within the next 2 weeks. This
should be updated with actual progress at least once a month.
2. The program is to be produced using commercially available
critical path planning software adopting the activity-on-node
method and presented as a linked bar chart.
3. Information required from the CA that is identified in the
program is to be referenced by links to actual activities and
not simply by specifying a ‘‘needed by’’ date.
4. Key resources required by each activity are to be defined,
and the program is to be cross-referenced to a method state-
ment, i.e., the written description of how the contractor in-
tends to carry out the works.
5. In recognition, no doubt, of the real problems that can arise
when a contractor fails to provide a program or to update it
on a regular basis, the Protocol suggests making payments
when both of these activities are successfully completed. It
also considers the withholding of payments for failure to
perform.
For the records that need to be kept, the advice is that the parties
should reach a clear agreement at the outset so that a detailed
understanding of what work was carried out and when it was
carried out can be reliably provided. The model clause gives de-
tails of the various record sets that will be required and includes a
weekly and a monthly report that relates project work to the ac-
tivities referenced on the agreed program.
Research
Previous sections of this paper have reviewed some of the con-
tinuing difficulties that are encountered when attempts are made
to analyze and account for the delays and disruptions that affect
construction projects; they have also introduced the U.K. Society
of Construction Law’s protocol for dealing with such situations.
The following is a report of recent research conducted to test how
U.K. professionals understand some of these issues and how they
deal with them in practice. Interviews were conducted with 20
employees of contracting organizations, 20 professionals em-
ployed by project employers as contract administrators, and 6
claims consultants, 46 interviewees in total. The interviews were
designed to address issues that arise when dealing with delay
claims. This particular mix of personnel was chosen to get the
views of the two main protagonists in on-site claims negotiations
共the contractors and the contract administrators兲 but also to get a
third party view 共that of the claims consultants兲. All but one of the
interviewees had more than 15 years experience in construction,
principally in the civil engineering sector, and 40 out of the 46
had been dealing with claims for more than 10 years. Thus, they
were well placed to comment on the issues addressed in the sur-
vey. These issues, and the interviewees’ reactions to them, will
now be discussed.

Findings of Research

General Methodology for Assessing Delay Claims

Here, the respondents were asked to state how they would analyze
the impact of delays on a contract, given the following choices:
1. Global method—compares the planned progress with actual
progress and identifies employer delay events, but makes no
effort to demonstrate cause and effect.
2. Network analysis—inserts delays into the program network
共producing an as-built plan兲 and analyzes their effect.
3. Critical path only—considers only the critical path through
the network and the delays that impact that path.
4. Fragnet analysis—effectively ‘‘time impact analysis,’’ where
the impact of delays on a part of the network is assessed and
then inserted back into the main updated network.
None of the respondents suggested any methods other than
those shown, but they were generally unwilling to select just one
approach from the above list, because it would depend on the
contract, the other party, or at what stage the claim was made.
They were asked to make two choices, but to state which of the
two selected was the most likely to be used. First choices were Fig. 1. General methodology for assessing delay claims: Percentage
weighted ‘‘2,’’ with second choices weighted ‘‘1.’’ Results for the weighted responses
three categories of respondent and for all together are shown in
Fig. 1.
The global approach 共Option 1兲 and the use of fragnets 共Op-
tion 4兲 were undoubtedly the least popular methods of assessing 1. The contractor should have exclusive control of the float.
or presenting delay claims, although the claims consultants do 2. The employer should have exclusive control of the float.
appear to make some use of fragnets. Those who present and 3. Where the contractor does not require it, the employer
carry out initial assessments of delay claims, contractors and CAs, should have use of the float.
appear to prefer to use the full network to do this. How those 4. Float should be available to either party on a first-come first-
networks are analyzed, however, may vary, with contractors pre- served basis.
ferring to analyze the complete network, while CAs appear most 5. The specification should define who has control of the float.
concerned with delays on the critical path alone. This evidence The results are shown in Fig. 2, where it can be seen that the
suggests that if time impact analysis, the Protocol’s preferred majority of respondents chose Statement 1, that the contractor
method, is to become the norm, there may need to be considerable should have exclusive control of the float. Eighty percent of all
efforts made to make it more widely recognized. respondents said that the contractor should have control of the
To gain a greater insight into the way in which the network float, with 95% of contractors supporting this view, although 65%
will actually be analyzed, two essential major issues were ad- of CAs also agreed with them. The one contractor who thought
dressed: the ownership of float in networks and concurrent delays. differently felt that the contractor and employer should jointly
own the float. The views of the remaining 17% were varied.
Three CAs and one arbitrator said that the specification should
Ownership of Float
define who has control of the float. Three other CAs said it should
Attitudes toward who owns the float in a network are central to be available on a first-come first-served basis, and one CA be-
the way in which networks are likely to be analyzed, and, for this lieved that when the contractor does not need the float the em-
reason, the issue was approached in two ways. First, respondents ployer can have the benefit of it. These results indicate some
were asked to select the particular statement that most closely agreement between the two major parties on-site that the contrac-
represented their views on float ownership from a number of de- tor should have control of the float in their own program, al-
fined statements. Secondly, respondents were asked to consider though the view is clearly much more strongly held by contrac-
and make judgments on two scenarios that encapsulate the float tors than by CAs.
ownership question. The project that was used in the scenarios throughout the en-
The statements shown to the respondents in the first question tire questionnaire and that will be used in the second part of this
were as follows: section is shown in the top panel of Fig. 3. It has eight activities,

54 / JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004
 Fig. 4. Results of ownership of float Scenario 1: Contractor’s delay
first
Fig. 2. Ownership of float: Initial question results

two paths through the network, and was chosen to be as simple as
possible while still allowing it to be an effective test of time-
related issues in contracts.
To attempt to understand how the respondents actually deal
with float in contracts, two separate scenarios were produced,
both of which can be explained by considering Fig. 3. Each sce-
nario contains two versions of the project barchart: one that
shows how the contractor planned to carry out the work and one
that shows what actually happened on the project. In Fig. 3, it is
clear that two separate delays, one due to the contractor that hap-
pens first and one due to the employer coming second, affected
the project during construction, and, as a result, the project was
late by 1 week. For this outcome, the respondents were asked
whether an extension of time should be awarded and, if so, for
how long; whether overheads should be paid to the contractor,
and if so, for how long; whether there should be deduction of
liquidated damages and, if so, for how long? The results are
shown in Fig. 4, which uses a key to define the responses. A
response of T0, C0, D1, for example, signifies that the respondent
thought that no extension of time was due, no recovery of over-

Fig. 3. Ownership of float Scenario 1: Contractor’s delay first

JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004 / 55

Fig. 5. Results of ownership of float Scenario 2: Employer’s delay
first
heads should be made, but that liquidated damages should be
deducted for 1 week. The results for this scenario show very
strong agreement between all parties that the contractor should be
awarded a 1 week extension of time, with recovery of overheads
for 1 week, and no deduction of liquidated damages 共T1, C1, D0兲.
The second scenario placed in front of the interviewees was
exactly the same as the first, except that the order of the two
delays was reversed, with the employer-responsible delay affect-
ing ‘‘erect lamp-posts and signs’’ and the contractor-responsible
delay affecting ‘‘footpath paving and guardrail.’’ The cause of
Fig. 6. Concurrent delay: Employer and contractor delay begin and end at the same time
56 / JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004
these delays would no doubt be that the employer had instructed
more lampposts and that the contractor had ordered the paving
late. The responses for this scenario are shown in Fig. 5, where it
can be seen that the interviewees’ views are not nearly so uni-
form. The contractors were quite single-minded, and most of
them gave the same response as for the first scenario, but the
CAs’ responses have changed considerably. Where 90% of them
gave the T1, C1, D0 response in the first scenario, only 45% gave
that response here, with 40% believing that there should be no
extension, no overheads, and either 1 or 0 weeks liquidated dam-
ages deducted 共T0, C0, D0 or T0, C0, D1兲.
Clearly, for a respondent who believes that the contractor
should have control of the float, the responses to both scenarios
should be the same, i.e., T1, C1, D0. The great majority of con-
tractors did believe that they should have control over the float
and also gave consistent responses to both scenarios. The CAs,
however, were not so faithful to their previously expressed views,
changing from 65% agreeing to the contractors’ rights to the float
in the first question to only 45% believing that the order in which
delays occur should not affect the outcome.
From the two different approaches to this issue, it can be seen
that there is actually a real difference between the two main par-
ties on this issue, which as has been previously said, is fundamen-
tal to agreement about how delay claims should be assessed. The
fallback position proposed by the Protocol may thus be difficult
for the U.K. construction industry, particularly for contractors to
accept. Perhaps a stronger exhortation to ensure that float owner-
ship is defined in the contract would be beneficial.
Dealing with Concurrent Delays
On concurrent delays, several scenarios were tested with different
types of concurrent delay and with delays overlapping for only
part of their duration. In this paper, however, it is the relatively
simple problem shown in Fig. 6 that will be discussed. This ques-

Fig. 7. Concurrent delay results
tion assesses respondents’ views of a very basic concurrent delay
problem, where contractor and employer delays start and end at
the same time and both impact the completion date by equal
amounts. As in previous tests, interviewees were asked to indicate
what extension of time, prolongation costs, and liquidated dam-
ages they thought fair in such a situation. The results are shown in
Fig. 7 and indicate that the majority of respondents, 87%, thought
that the contractor was entitled to an extension of time of 3 weeks
for the employer caused delay, although opinion differed on how
many weeks prolongation costs should be paid.
The majority of contractors 共60%兲 felt that they would be en-
titled to 3 weeks prolongation costs; whereas, only 20% of CAs
and no claims consultants thought this fair. This highlights a pos-
sible area of confrontation, although 35% of CAs and 10% of
contractors said that they would be prepared to negotiate the issue
of prolongation costs. Twenty-six percent of all respondents
Fig. 8. Scenario showing early completion schedule
JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004 / 57
agreed with the approach suggested by the Protocol, where re-
sponsibility between the contractor and employer is shared, and
an extension of time without costs is awarded. The results show
that the major barrier to acceptance of this method in the U.K.
would be the views of the contractors, who clearly have difficulty
accepting that they may not be entitled to prolongation costs for
an employer caused delay in these circumstances. Clearly, these
opinions do not have the weight of legal precedent, but in the
absence of legal precedent, they may be the best guide available
as to what would be accepted by the industry.
Problem of Early Completion Schedules
Most construction contracts will specify a ‘‘time for completion,’’
in which the work must be complete, otherwise the employer may
be able to recover liquidated damages from the contractor. The
problem addressed here, and shown in Fig. 8, arises when the
contractor provides a program showing the work will be com-
pleted earlier than the completion date, the work is then delayed
by the employer 共type E delay in the figure兲, and the contractor
makes a claim for the cost of overheads for the prolonged period
on-site.
For this scenario, the respondents were asked to say: should
there be an extension of time 共T兲, and if so for how long; should
there be overheads paid 共C兲 and if so for how long; should there
be liquidated damages deducted 共D兲 and if so for how long? The
results are shown in Fig. 9, in which T1, C1, D0 represents the
view that an extension of time of 1 week with costs for 1 week
and no deduction of liquidated damages should be awarded. Not
surprisingly, 90% of the contractors believed that costs should be
paid for 1 week. This view was affirmed by 60% of the CAs, 20%
of whom also wanted to give an extension of time, despite the fact
that none was needed, because the work was completed by the
completion date. There were, however, 40% of the CAs and 33%
of the claims consultants who felt that no overhead costs should
be paid. Clearly, the majority view was that overhead costs should
be paid, but there was a sizeable majority who disagreed about
what must surely be a fairly common occurrence on construction
 Fig. 9. Results of early completion schedule scenario
contracts. Although the agreement here between contractors and
CAs is not so well defined, the evidence still shows a majority of
CAs agreeing with the decision to award 1 week costs. The posi-
tion taken by the Protocol here would appear to have reasonable
support.
Issue of Prolongation Costs
When an employer-caused delay gives the contractor the right to
recover site overhead costs for a prolonged period on-site, there
has always been some controversy about the level of site over-
head costs that should be reimbursed. In the U.K. and in the
Protocol, prolongation costs or prolongation payments are the
terms used for these site overhead costs incurred by the contractor
for a prolonged period on-site. Fig. 10 helps to describe this situ-
ation by showing how the contractor’s overhead costs may
change as the project proceeds. It clearly suggests that the level of
weekly overheads toward the end of the contract, when the work
is coming to an end, is likely to be lower than during the period
when work is in full flow. Thus the argument concerns whether it
is the level of overheads during the extended period on-site 共at the
Fig. 10. Contractor’s overhead costs
58 / JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004
Fig. 11. Prolongation costs: Results
end兲 that should be paid or whether it should be the level of
overheads being incurred by the contractor at the time of the
delaying event. Respondents were asked to choose from
1. Prolongation costs at the actual time of the delay should be
payable;
2. Prolongation costs at the end of the contract should be pay-
able;
3. Prolongation costs at the end of the contract should be pay-
able, and the contractor should prove any other additional
costs over and above these; and
4. Other 共please specify兲.
The results are shown in Fig. 11, where it can be seen that
almost all the contractors 共95%兲, all the claims consultants, and
50% of the CAs chose 1, with most of the rest of the CAs 共35%兲
choosing 3—the other 15% chose 2. Among the CAs there was an
even split between those who would pay overheads at the
‘‘higher’’ rate and those who would either pay at the ‘‘lower rate’’
or expect additional justification to convince them to pay at any-
thing more than the lower rate. If it is accepted that claims con-
sultants have a greater appreciation of the ways in which claims
are eventually settled, their unanimous choice of paying at the
higher rate might be seen to be meaningful. Another way of look-
ing at this result for the contractor would be that the contractor
should ensure that overhead costs are recorded and, if possible,
agreed with the CA in the expectation that proof will be required
to justify any claim for overheads at a level higher than those
applying at the end of the contract. This is another issue where the
proposed solution recommended by the Protocol appears to have
reasonably good hopes of being acceptable to the U.K. construc-
tion industry.
Conclusions
The absence of detailed legal precedent in the U.K. to show how
delay claims should be handled has previously made the develop-
ment of pervasive and consistent good practice in these areas an
unlikely prospect. The publication of the SCL Protocol has
brought these possibilities closer. When taken together with stan-
dard forms of contract that fail to recognize the complexity of
these areas, we begin to understand what a positive step the pub-
lication of the SCL Protocol is for the national construction in-
dustry.
The authors of this paper certainly welcome its publication and
congratulate the SCL for its perspicacity and determination in
confronting such a daunting task. The next step, of course, is to
encourage widespread use of the Protocol, and it is hoped that the
results of research published in this paper will help to understand
where some of the difficulties may lie.
The positions taken by the Protocol on early completion
schedules and on prolongation costs appear to be generally ac-
ceptable to the construction industry. On early completion sched-
ules, the research shows a majority of those interviewed, includ-
ing both contractors and CAs, accepting that overhead costs
should be paid, despite there being no need for an extension of
time. On prolongation costs, most thought that overheads current
at the time of delay should be paid, although this view was only
accepted by half of the CAs. There were, however, aspects of the
SCL guidance that may cause concern. The preferred method of
assessing extension of time claims, ‘‘time impact analysis,’’ was
shown by the research not to be well used in practice and may
require considerable efforts to have it more widely recognized.
There also seem to be difficulties with the contractor’s acceptance
of the position taken on float ownership and on concurrent delays.
The research showed that the contractors’ strong view was that
they should have exclusive control of the float, in direct contrast
to the Protocol and to the views of the other parties interviewed.
On concurrent delays, contractors still expected to be paid over-
head costs when a contractor-caused delay was concurrent with
an employer-caused delay.
Clearly, the employer can insist that the parts of the Protocol
addressing float and concurrent delay be written into the contract,
but it should be recognized that there are also ways that contrac-
tors can respond that would serve to nullify the effects of the new
requirements. Care needs to be taken to ensure that any defensive
action does not effectively turn the process into more of a game
than a serious attempt to find a fair solution. The fact that there
are some areas of consensus among those involved in contract
delays as to how those delays should be analyzed bodes well for
the acceptance of the Protocol, but this will not be achieved with-
out overcoming some of the difficulties described.
JOURNAL OF PROFESSIONAL ISSUES IN ENGINEERING EDUCATION AND PRACTICE © ASCE / JANUARY 2004 / 59
Endnotes
1
A recent example of costly litigation over these issues is the case
of Balfour Beatty Building v. Chestermount Properties 共1993兲 62
BLR 1.
2
The drafters of the Protocol were: Jeremy Winter 共Chair兲, Rich-
ard Bayfield, Paul Brough, Anthony Caletka, Jonathan Douglas,
Peter Johnson, Stuart Jordan, Stuart Nash, Keith Pickavance, Jim
Pragnell, and David Richards. A copy of the Protocol, including
the graphics may be obtained from the SCL web-site: http://
www.scl.org.uk
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