Contract Document

Construction Contract Claims
Extension of Time for Completion

Outline
A. Introduction: Why Extend Completion Date?
– Contract Provisions: GCC and COPA
– Legal Provisions: The Ethiopian CIVIL CODE
B. EOT Claims in Construction Contracts
– Sources of Delay in Construction Contracts
– Procedural Issues in Claiming for EOT: Notice + Records
– The Principle of Time AT Large
– Effective Presentation of Delay Analysis
C. Evaluation of EOT Claims
– Program of Works: AS-PLANNED and AS-BUILT Programs
– Principles for Analysis of Time and Delay
– Construction Delay Analysis Techniques
– Problematic Areas: Rates of Productivity, Float, Concurrency
D. Case Studies and Prospects
– Evaluation of Selected Claim Heads
– The WAY Forward: The Claims Industry
2
A. INTRODUCTION
Why Extend Completion Date?

– Contract Provisions: GCC and COPA
– Legal Provisions: The Ethiopian
CIVIL CODE
Background
• Extension of Time Claims:
– Are the most common form of Claims within the
Domestic Construction Industry
– Why? Because Time = Money
• Objectives of the Presentation:
– Identify common sources of delay and disruption in
construction contracts
– Outline possible ways to mitigate/minimize the
damage to the project as a result of delaying &
disrupting events & their contractual complications
– Highlight standard framework for the Contractor to
request, the Engineer to make a determination and the
Employer to assess certain EOT claims
4
Extension of Time Claims
Contract Provisions - FIDIC 4 (1992)
• Sub-Clause 1.1 (c)(i) "Commencement Date"
– means the date upon which the Contractor receives
the notice to commence issued by the Engineer
pursuant to Clause 41.
• Sub-Clause 1.1 (c)(ii) : "Time for Completion“

– means the time for completing the execution of and
passing the Tests on Completion of the Works or any
Section or part thereof as stated in the Contract (or as
extended under Clause 44) calculated from the
Commencement Date.
5
• Sub-Clause 1.1 (g)(i) ''cost"
– means all expenditure properly incurred or to be incurred,
whether on or off the Site, including overhead and other
charges properly allocable thereto but does not include
any allowance for profit.
• Sub-Clause 1.1 (g) (ii) ''day"
– means calendar day.
• Sub-Clause 1.1 (g)(iii) "foreign currency"
– means a currency of a country other than that in which
the Works are to be located.
• Sub-Clause 1.1 (g) (iv) ''writing"
– means any hand-written, type-written, or printed
communication, including telex, cable and facsimile
transmission. 6
• Sub-Clause 1.5 Notices, Consents,
Approvals, Certificate and Determinations
– Wherever in the Contract, provision is made for the
giving or issue of any notice, consent, approval,
certificate or determination by any person, unless
otherwise specified, such notice, consent, approval,
certificate or determination shall be in writing and the
words "notify", "certify" or "determine'' shall be
construed accordingly. Any such consent, approval,
certificate or determination shall not unreasonably
be withheld or delayed.
7
• Sub-Clause 2.1(b) Engineer's Duties and
Authority
– The Engineer may exercise the authority specified in
or necessarily to be implied from the Contract,
provided, however, that if the Engineer is required,
under the terms of his appointment by the Employer,
to obtain the specific approval of the Employer before
exercising any such authority, particulars of such
requirements shall be set out in Part II of these
Conditions. Provided further that any requisite
approval shall be deemed to have been given by the
Employer for any such authority exercised by the
Engineer.
8
• Sub-Clause 2.6 Engineer to Act Impartially
– Wherever, under the Contract, the Engineer is required
to exercise his discretion by:
i. giving his decision, opinion or consent, or
ii. expressing his satisfaction or approval, or
iii. determining value, or
iv. otherwise taking action which may affect the rights and
obligations of the Employer or the Contractor
he shall exercise such discretion impartially within the
terms of the Contract and having regard to all the
circumstances. Any such decision, opinion, consent,
expression of satisfaction, or approval, determination of
value or action may be opened up, reviewed or revised
as provided in Clause 67.
9
• Sub-Clause 6.3 Disruption of Progress
– The Contractor shall give notice to the Engineer, with
a copy to the Employer, whenever planning or
execution of the Works is likely to be delayed, or
disrupted unless any further drawing or instruction is
issued by the Engineer within a reasonable time. The
notice shall include details of the drawing or instruction
required and of why and by when it is required and of
any delay or disruption likely to be suffered if it is late.
10
• Sub-Clause 6.4 Delays and Cost of Delay of Drawings
– If, by reason of any failure or inability of the Engineer to
issue, within a time reasonable in all the circumstances,
any drawing or instruction for which notice has been
given by the Contractor in accordance with Sub-Clause
6.3, the Contractor suffers delay and/or incurs costs then
the Engineer shall, after due consultation with the
Employer and the Contractor, determine:
i. any extension of time to which the Contractor is entitled
under Clause 44, and
ii. the amount of such costs, which shall be added to the
Contract Price,
and shall notify the Contractor accordingly, with a copy
to the Employer.
11
• Sub-Clause 7.3 Responsibility Unaffected by
Approval
– Approval by the Engineer, in accordance with Sub-
Clause 7.2, shall not relieve the Contractor of any of
his responsibilities under the Contract.
12
• Sub-Clause 12.2 Not Foreseeable Obstructions or Conditions
– If, however, during the execution of the Works, the
Contractor encounters physical obstructions or physical
conditions, other than climatic conditions on the Site,
which obstructions or conditions were, in his opinion, not
foreseeable by an experienced contractor, the
Contractor shall forthwith give notice thereof to the
Engineer, with a copy to the Employer. On receipt of
such notice, the Engineer shall, if in his opinion such
obstructions or conditions could not have been
reasonably foreseen by an experienced contractor, after
due consultation with the Employer and the Contractor,
determine:
– ...
13
• Sub-Clause 12.2 Not Foreseeable Obstructions or Conditions
– ...
(a) any extension of time to which the Contractor is entitled under
Clause 44, and
(b) the amount of any costs which may have been incurred by the
Contractor by reason of such obstructions or conditions having
been encountered, which shall be added to the Contract Price,
– and shall notify the Contractor accordingly, with a copy to
the Employer. Such determination shall take account of
any instruction which the Engineer may issue to the
Contractor in connection therewith, and any proper and
reasonable measures acceptable to the Engineer which
the Contractor may take in the absence of specific
instructions from the Engineer.
14
• Sub-Clause 20.4 Employer's Risks
– The Employer's risks are...
(a) war, hostilities (whether war be declared or not),
(b) rebellion, revolution, insurrection, or military or usurped power,
or civil war
(c) ionising radiations, or contamination by radio-activity
(d) pressure waves caused by aircraft
(e) riot, commotion or disorder
(f) loss or damage due to the use or occupation by the Employer of
any Section or part of the Permanent Works
(g) loss or damage to the extent that it is due to the design of the
Works, other than any part of the design provided by the
Contractor or for which the Contractor is responsible
(h) any operation of the forces of nature against which an
experienced contractor could not reasonably have been
expected to take precautions
15
• Sub-Clause 27.1 Fossils
– All fossils, coins, articles of value or antiquity and structures
and other remains or things of geological or archaeological
interest discovered on the Site shall be property of the
Employer. The Contractor shall take reasonable precautions
to prevent damage and shall, immediately upon discovery
thereof and before removal, acquaint the Engineer of such
discovery and carry out the Engineer's instructions for dealing
with the same. If, by reason of such instructions, the
Contractor suffers delay and/or incurs costs then the Engineer
shall, after due consultation with the Employer and the
Contractor, determine:
(a) any extension of time to which the Contractor is entitled under
Clause 44
(b) the amount of such costs, which shall be added to the Contract
Price, and shall notify the Contractor accordingly, with a copy to
the Employer 16
• Sub-Clause 36.4 Cost of Tests not Provided for
– If any test required by the Engineer ,which is
(a) not so intended by or provided for, or
(b) (in the cases above mentioned) not so particularised, or
(c) (though so intended or provided for) required by the Engineer to be
carried out at any place other than the Site
shows the materials, plant or workmanship not to be in
accordance with the provisions of the Contract to the
satisfaction of the Engineer, then the cost of such test shall be
borne by the Contractor, but in any other case Sub-Clause
36.5 shall apply.
• Sub-Clause 36.5 Engineer's Determinat. as per Sub-Clause 36.4
–Where, pursuant to Sub-Clause 36.4, this Sub-Clause applies,
the Engineer shall determine:
a) any EOT to which the Contractor is entitled under Clause 44, and
b) the amount of such costs, which shall be added to the Contract Price,
17
• Sub-Clause 40.1 Suspension of Work
– The Contractor shall, on the instructions of the Engineer,
suspend the progress of the Works for such time and in such
manner as the Engineer may consider necessary. Unless
such suspension is:
(a) otherwise provided for in the Contract, or
(b) necessary by reason of some default of or breach of contract by the
Contractor or for which he is responsible, or
(c) necessary by reason of climatic conditions on the Site, or
(d) necessary for the proper execution of the Works or for the safety of
the Works or any part thereof
Clause 40.2 shall apply.
• Sub-Clause 40.2 Engineer's Determination foll. Suspension
– Where, pursuant to Sub-Clause 40.1, this Sub-Clause applies,
the Engineer shall determine:
a) any EOT to which the Contractor is entitled under Clause 44, and
b) the amount of such costs, which shall be added to the Contract Price, 18
• Sub-Clause 42.2 Failure to Give Possession
– If the Contractor suffers delay and/or incurs costs from
failure on the part of the Employer to give possession
in accordance with the terms of Sub-Clause 42.1, the
Engineer shall, after due consultation with the
Employer and the Contractor, determine:
a) any EOT to which the Contractor is entitled under Clause 44,
and
b) the amount of such costs, which shall be added to the
Contract Price,
and shall notify the Contractor accordingly, with a
copy to the Employer.
19
• Sub-Clause 42.3 Rights of Way and Facilities
– :
a) any EOT to which the Contractor is entitled under Clause 44,
and
b) the amount of such costs, which shall be added to the Contract
Price,
and shall notify the Contractor accordingly, with a copy to the
Employer.
• Sub-Clause 47.1 Liquidated Damages for Delay
• If the Contractor fails to comply with the Time for Completion in
accordance with Clause 48, then the Contractor shall pay to the
Employer the relevant sum stated in the Appendix to Tender as
liquidated damages for such default and not as a penalty for every
day or part of a day which shall elapse between the relevant Time
for Completion and the date stated in a Taking-Over Certificate of
the whole of the Works or the relevant Section, subject to the
applicable limit stated in the Appendix to Tender.
Extension of Time Claims 20
• Sub-Clause 44.1 Extension of Time for Completion
– In the event of:
a) the amount or nature of extra or additional work, or
b) any cause of delay referred to in these Conditions, or
c) exceptionally adverse climatic conditions, or
d) any delay, impediment or prevention by the Employer, or
e) other special circumstances which may occur, other than
through a default of or breach of contract by the Contractor or
for which he is responsible,
being such as fairly to entitle the Contractor to an
extension of the Time for Completion of the Works, the
Engineer shall, after due consultation with the
Employer and the Contractor, determine the amount of
such extension and shall notify the Contractor
accordingly, with a copy to the Employer.
21
• Sub-Clause 53.1 Notice of Claims
– Notwithstanding any other provision of the Contract, if the
Contractor intends to claim any additional payment pursuant to any
Clause of these Conditions or otherwise, he shall give notice of his
intention to the Engineer, with a copy to the Employer, within 28
days after the event giving rise to the claim has first arisen
• Sub-Clause 53.2 Contemporary Records
– Upon the happening of the event referred to in Sub-Clause 53.1,
the Contractor shall keep such contemporary records as may
reasonably be necessary to support any claim he may
subsequently wish to make.
• Sub-Clause 53.3 Substantiation of Claims
– Within 28 days of giving notice under Sub-Clause 53.1, the
Contractor shall send to the Engineer an account giving detailed
particulars of the amount claimed and the grounds upon which the
claim is based.
22
• Sub-Clause 53.4 Failure to Comply
– If the Contractor fails to comply with any of the provisions of this
Clause in respect of any claim which he seeks to make, his
entitlement to payment in respect thereof shall not exceed such
amount as the Employer or any arbitrator or arbitrators appointed
pursuant to Sub-Clause 67.3 assessing the claim considers to be
verified by contemporary records
• Sub-Clause 53.5 Payment of Claims

– The Contractor shall be entitled to have included in any interim
payment certified by the Engineer pursuant to Clause 60 such
amount in respect of any claim as the Engineer, after due
consultation with the Employer and the Contractor, may consider
due to the Contractor provided that the Contractor has supplied
sufficient particulars to enable the Engineer to determine the
amount due.
23
Legal Provisions- The CIVIL CODE
TITLE XII. CONTRACTS IN GENERAL
• Art. 1772 - Notice Necessary
– A party may only invoke non-performance of the contract
by the other party after having placed the other party in
default by requiring him by notice to carry out his
obligations under the contract.
– #”Å ¬K< dÃðçUM˜ k`}FM$ uTKƒ ¡`¡` Tp[w ¾T>ðMÑ¬ ›”Å—¬
¬Ñ” }ªªÃ& ¾}ªªK¬” c¬ ÓÈ¬” ”Ç=ðçUKƒ KTÉ[Ó ›ekÉV
TeÖ”kmÁ K=cÖ¬ ÁeðMÒM::
• Art. 1773 - Form and time of Notice
– (1) Notice shall be by written demand or by any other act
denoting the creditor's intention to obtain performance of
the contract.
– (2) Notice may not be given unless the obligation is due.
24
• Art. 1774 - Time for Performance
– (1) The creditor may in the notice fix a period of time after
the expiry of which be will not accept performance of the
contract.
– (2) Such period shall be reasonable having regard to the
nature and circumstances of the case. under the contract.
• Art. 1802 - Duty to limit the extent of the damage

– The party who invokes non-performance shall take all
reasonable measures not involving inconvenience or heavy
expenses to limit the extent of the damage caused.
– Where he fails to take such measures, the other party may
invoke such failure to require that the amount of damages
be reduced.
25
• Art. 1857 - Calculation of Period of Time
– Where an obligation is to be discharged or another act of
a legal nature is to be performed after a certain period of
time from the date of the contract or any other date, such
period shall be reckoned in accordance with the
provisions of the following Articles.
• Art. 1863 - Lapse of time

– (1) Where an obligation is to be discharged within a
specified period of time, the debtor shall discharge his
obligations before the expiry of such period.
– (2) He shall fix the exact date on which he shall discharge
his obligations unless the circumstances are such as to
show that the said date is to be fixed by the creditor.
26
• Art. 1864 – Period Extended
– Where the period is extended, the new period shall, unless
otherwise agreed, begin to run from the day following the
day on which the first period expired.
• Art. 1865 - Benefit of Period of Time

– The period of time shall be deemed to be fixed for the
benefit of the debtor unless the contract or the
circumstances show that it is also fixed for the benefit of
the creditor.
• Art. 1865 - Loss of Benefit of Time

– The debtor whose insolvency has been established or who
has reduced the value of the securities given by him to the
creditor shall loose the benefit of the agreed period of time.
27
• Art. 2001 – Burden of Proof
– (1) He who demands performance of an obligation shall
prove its existence.
– (2) He who alleges that an obligation is void, has been
varied or is extinguished shall prove the facts causing such
nullity, variation or extinction.
• Art. 2004 - Agreements relating to Evidence
– Parties are not allowed to provide in their contracts
exceptions to the rules which bar or restrict the admissibility
of certain means of evidence.
28
• Art. 2618 - Delay in Execution of Work
– (1) Where the contractor delays the carrying out of his task so that it
becomes evident that he cannot accomplish it in the time fixed in the
contract, the client may fix him a reasonable time limit to begin the
execution of the task.
– (2) Where the contractor, after this time limit, has not begun the task or
has interrupted it in bad faith, the client may cancel the contract without
waiting for the expiry of the period laid down for the completion of the
task.
– (3) Where appropriate, the client may also claim, in such a case,
damages from the contractor.
• Art. 2619 - Where no Time Limit has been Fixed
– (1) Where no time limit has been fixed in the contract, the contractor
shall immediately begin the execution of his task and complete it within
a reasonable time in accordance with custom.
– (2) The provisions of Art. 2618 shall apply where the contractor does not
immediately begin the carrying out of his task or where he interrupts it.
29
TITLE XIX: ADMINISTRATIVE CONTRACTS
• Art. 3174 – Time – (1) Principle
– (1) Each contracting party shall perform his obligations within
the time fixed by the contract.
– (2) Failing a specific provision in the contract, each
contracting party shall perform his obligations within a
reasonable time.
• Art. 3175 – Time (2) Prerogative of Administrative

Authorities
– The administrative authority may not impose unilaterally on
the other contracting party a time which has not been agreed
upon for the performance of his obligations unless they may
under the contract fix such time by means of requisition
orders.
30
• Art. 3185 – Unforeseeable events
– (1) An event shall be deemed to be unforeseeable where it
could not reasonably be envisaged by the parties on the
making of the contract
– (2) An event shall not be deemed to be unforeseeable where
it is due to the act of the person who avails himself thereof
– (3) The fact that an event was not foreseen may be invoked
by reason of unforeseeable consequences or an
unforeseeable extension of events which had already
happened on the making of the contract
• Art. 3185 (2)
– ›”É G<’. ›ekÉV dÃcw ¾k[ ’¬& }wKA K=qÖ` ¾TÃ‰K¬ KØpS< vÇ[Ñ¬
c¬ ›c^` ¾J’¬ ’¬::
31
Why Extend Completion Date?
• The Purpose of EOT (based on SCL Protocol):
– The benefit to the Contractor of EOT is only to relieve
the Contractor of liability for damages for delay
(usually Liquidated Damages (LDs)) for any period
prior to the extended contract completion date
– The benefit to the Employer is two-fold:

• It establishes a new contract completion date for the works
• Prevents time for completion of the works becoming ‘at
large’ ; thereby ensuring the Employer’s right to apply LDs
32
B. EOT Claims in Construction
Contracts
– Sources of Construction Delay
– Procedural Issues in Claiming for EOT: Notice
+ Records
– The Principle of Time AT Large
– Effective Presentation of Delay Analysis
Sources of Construction Delay
• Likely Sources of Construction Delay
Excusable/Neutral Delay Non-Excusable Delay
Delay or deferment in granting Possession of Site Late Mobilization & Commencement
Unforeseeable ground conditions Shortage of Resources
Instructions (e.g. additional work, opening up for Delayed Contractor ‘s design (e.g.
inspection and testing) temporary works)
Variations or changes to work scope Poor site co-ordination
Increase in Quantities Price Fluctuation
Delayed Geo-technical investigation by the
Inaccurate quantities in contract BOQ
Contractor
Late/Poor design information by the Engineer Re-work and maintenance works
Suspension of Works by the Engineer/Employer Provision of Engineer’s Facilities
Improper Mgt. of Statutory obligations –
Delay caused by statutory bodies & stakeholders
Traffic & Safety Mgt
Exceptionally adverse weather conditions Lack of Early Warning for delaying events
Delay caused by Employer or his representatives
Civil commotion & Industrial action(e.g. lock outs)
34
Procedural Issues in Claiming for EOT
• Clause 44, Clause 53, TITLE 12 and TITLE 19
– (1) Notice of Claim – The Contractor should give notice of his
intent to claim for EOT for completion in writing, well in advance
– (2) Contemporary Records – The Contractor should keep
records in support of his EOT claim
– (3) Substantiation of Claims – The burden of proof lies with
the Contractor to validate his claim timely
– (4) Failure to Comply – The Engineer/Employer are required to
make a determination of the Contractor’s claim, based on
records available to them, in case of Contractor's failure to
particularize his claim
– (5) Determination & Approval – The Engineer should make a
determination and the Employer should give approval for the
claim timely in due consultation with the relevant parties
– (6) Dispute – Clause 67 can be pursued by unhappy party
35
The Principle of Time AT Large
• The Concept of “Time AT Large”
– “Time at Large” is a very familiar argument in
contractor claims
– it is a common law principle in which the fixed
contractual completion date (typically attended by
liquidated damages in most standard and bespoke
forms of contract) is rendered ineffective
– this is based on the so-called “prevention principle”, by
which it would be inequitable for the employer to enforce
the contractor’s failure to meet the completion date when
this was caused by reasons for which the employer was
responsible (an “act of prevention”) and where the
contract either has no mechanism for extending the
completion date, or that mechanism has become
inoperable 36
• The Concept of “Time AT Large”
– the contractor is relieved of his obligation to complete the
works by the specified completion date.
– Instead, his obligation is to complete the works within a
“reasonable time”.
– At the same time, the employer is no longer entitled to claim
or deduct the contractual liquidated damages
– Whilst this argument is frequently raised by contractors in
their claims, it is difficult to pursue this argument
successfully. This is because most standard forms and
bespoke forms of construction contract now contain
adequate extension of time procedures
– This typically requires extreme circumstances rather than
the usual basic dispute between employers/contractors
about the responsibility for delays and the length of the
appropriate extensions of time 37
• Possible causes that lead to Time being AT Large
– (1) The deficiencies of the contractual completion
obligations/liquidated damages
• Missing provisions in the contract enabling EOT mechanism
• EOT and LD provisions themselves may be inconsistent and
so badly drafted as to be inherently uncertain/unworkable. e.g.
the sectional basis of the liquidated damages was inconsistent
with the non-sectional definition of the Works and the
completion date [contra proferentem]
• Unclear provisions for completion of the project; e.g. fixed
completion date for the works Vs. sectional completion dates
38
– (2) The failure to properly operate the EOT procedures
• where there has been some serious failure in the
administration of the contractual extension of time
mechanisms or, whilst an extension of time clause exists, it
cannot be operated in the particular circumstances of the
case
• the failure of the contract administrator to properly exercise
his power to award extensions of time
– Exa. Despite being required to deal with the extension of time claim
as and when received from the contractor, the engineer did not
grant an extension of time until much later, by which time the
original contractual completion date had already come and gone
– it is a key requirement that the contractor should have been able to
know in advance what his completion obligations were to re-
program/re-plan/re-sequence/accelerate the works for completion
i.e. key requirement of the contractor to have some prospective
certainty of his time obligations 39
– (3) The Inoperability of the EOT procedures
• ‘’Time at large” arguments may also exist where the contract
contains a valid extension of time clause, but where the
contract and/or other circumstances combine to prevent it
from being properly administered.
– EXA: In one of the employer’s amendments to the standard
FlDIC Conditions of Contract, it was expressly stated that
the engineer had to obtain the employer’s approval before
any extension of time could be granted. One of the other
clauses required any necessary approvals “not to be
unreasonably withheld or delayed”.
» Despite events which clearly required an extension of time to
be granted (e.g. the employer instructing suspensions of
significant parts of the works), the engineer was prevented
from granting any extensions of time, as the employer never
gave any approvals for doing so.
40
– (3) The Inoperability of the EOT procedures
• ‘’Time at large” arguments may also exist where the contract
contains a valid extension of time clause, but where the
contract and/or other circumstances combine to prevent it
from being properly administered.
» The effect of this was completely to emasculate the engineer’s
ability to carry out his function as contract administrator, in
which he is required to discharge his discretion fairly and
impartially.
– EXA: where the contractor is under strict notification
obligations, expressed as conditions precedent to his right
to obtain an extension of time.
» Where the employer has directly caused delay to the contractor,
but no extension is granted because the contractor did not submit
his notification in due time, it has been argued that the
“prevention principle” could operate to debar the employer from
recovering liquidated damages and leave “time at large”.
41
– (4) Failure to follow the contractual Programming
Procedures
• This may not always lead to ‘’Time at large” arguments
• The approval process for a contractual Work Program by
Engineer/Employer could lead to this argument
– EXA: the contractor periodically submitted updated
programmes to the engineer for approval (notably after
significant delay events occurred). Despite this and
principally due to the express requirement of the engineer
to obtain approvals from the employer, none of the updated
programmes were accepted/Approved by the engineer.
» the contractor was left to try to plan his own works, without
any ability to coordinate the sequence and timing of the works
with the engineer’s anticipated release of design information
or to receive any coordination from the engineer with the
works of other contractors on other parts of the project.
42
– (4) Failure to follow contractual Programming Procedures
• the status/extent of programs provided by the contractor may
affect the contractor’s ability to claim EOT
– EXA: - Where the contract contains provisions for the submission of
updated programs, however, it is often the case that the contractor
does not do so. Failure to submit updated program is not fatal to the
contractor’s rights to claim EOT but can be prejudicial to the
contractor’s position b/c it creates disputes about:
» (a) what baseline program should be used for assessing the
delays and
» (b) what the as-built state of the works was when the delay
events occurred
– In practice, the absence of a proper program leads to
difficulties experienced by the contractor in establishing his
claimed entitlement and the engineer is likely to question the
reliability of a program that is provided late or a program
produced retrospectively 43
• Whilst the law is sometimes difficult to unscramble on
certain points, the contractor will normally be able to pursue
“Time AT Large” argument :
– Where the contractual completion dates/liquidated damages
provisions are absent or are inherently defective,
– where the extension of time mechanisms have been seriously mal-
administered (e.g. late determination, etc), or
– where the extension of time procedures have become incapable of
being operated (based on the Prevention Principle)
• Similar position may also be available in Civil Law
jurisdictions. Civil Law Codes often contain broad equitably-
based powers and discretions which can be used in order to
provide relief to the contractor where this is appropriate:
– Based on fundamental concepts of the “prevention principle”
– Based on notions of good faith and unconscionability
44
Effective Presentation of Delay Analysis
1. The Event: Identify the event, the circumstance which gives
rise to change causing delay.
2. Liability for the Event: Once an event has been identified

the next step is to determine liability for the event. If
responsibility rests with the employer or it is a neutral event,
such as force majeure or exceptionally adverse climatic
conditions, the contractor may be entitled to an extension of
time. However, this is dependent upon the terms and
conditions of the particular contract. In circumstances where
the Contractor is responsible for the event then the
consequences remain with the Contractor.
45
3. Contractual Entitlement: Typically, construction contracts contain
provisions entitling the contractor to an extension of time on the
occurrence of a particular event provided the progress of the works or
time for completion is delayed as a consequence.
– For example FIDIC 1987 provides for an entitlement for extension of time
in the event of:
• late drawings (Clause 6.4);
• adverse physical obstructions or conditions (Clause 12.2);
• discovery of fossils or antiquities (Clause 27.1);
• additional tests not provided for (Clause 36.5)
• suspension of the works (Clause 40.2);
• failure to give possession of site (Clause 42.2);
• additional or extra work (Clause 44.1(a));
• exceptionally adverse climatic conditions (Clause 44.1(c)),
• any delay, impediment or prevention by the employer (Clause 44.1(d));
• any special circumstances, other than through the default of the contractor (Clause
44.1(e)); and,
• Contractor’s suspension of the works (Clause 69.4)
46
4. Contractual Compliance: Generally within an extension
of time clause, the contractor will be obligated to submit
notice(s) and detailed particulars within a specified time
frame.
– For example, Clause 44.2 of FIDIC 1987 (Red Book) provides:
“Provided that the engineer is not bound to make any determination
unless the contractor has
• (a) within 28 days after such an event has first arisen, notified the engineer with
a copy to the employer, and
• (b) within 28 days, or such other reasonable time as may be agreed by the
engineer, after such notification submitted to the engineer detailed particulars of
any extension of time to which he may consider himself entitled in order that
such submission may be investigated at the time.”
– Occasionally (as in recent editions of FIDIC), the submission of
notice and/or detailed particulars will be expressed to be a
condition precedent. In those cases, the contractor’s failure to
comply could potentially waive its entitlement to claim an EOT and
owner’s liability to grant additional EOT may cease
47
4. Contractual Compliance:
– it is important to take cognizance and comply with the notice
and detailed particular provisions expressed in the contract
– familiarity with the contract from the start of the project at all
levels is therefore critical
– In addition, further submissions may be required for particular
events, for instance: Clause 6.3 of FIDIC 87 (disruption of
progress) requires the contractor to “…. give notice to the
engineer, with a copy to the employer, whenever planning or
execution of the works is likely to be delayed or disrupted
unless any further drawing or instruction is issued by the
engineer within a reasonable time. The notice shall include
details of the drawing or instruction required and of why and
by when it is required and of any delay or disruption likely to
be suffered if it is late.”
48
5. Cause and Effect: A common mistake made by many
contractors when attempting to demonstrate the cause
and effect of an event is that they merely list, in
chronological order, the pertinent exchanges of
correspondence between the parties.
– From my experience, this is usually insufficient to satisfy the
burden of proof.
– To demonstrate cause and effect, a story should be prepared
based on the facts describing the effect(s) of the event upon
the works.
– This should include details of the planned works affected,
referring to the planned sequence, durations, and
methodology; the status of the works in relation to that
planned at the time of the event; and, description of the
changes to that plan as a consequence of the event.
49
6. Delay Analysis: Conduct a delay analysis to
demonstrate the effect of the event on the contractor’s
programme.
– There are a number of internationally recognized delay
analysis methods:
• Impacted AS-Planned (IAP)
• Time Impact Analysis (TIA)
• Collapsed AS-Built (CAB)
• AS-PLANNED vs AS-BUILT
– Ultimately, the choice of delay analysis methodology will be
dependent upon such matters as:
• level of records available;
• the robustness of the baseline programme and any updates;
• time available for the delay analysis;
• degree of accuracy required for the analysis; and,
• level of proof required. 50
7. Statement of Claim: Every extension of time claim must
contain a succinct statement of what the contractor is
claiming.
8. Substantiation: Extract and provide documentary evidence
in support of the assertions made within the claim
submission:
– Letters & correspondences made between contracting parties,
– method statements and crew formation, site resource data
– instructions, RFI, RFA, Verbal Instructions, VO, Etc
– progress reports and photos/videos,
– minutes of site and HO meetings,
– Work programs and schedules,
– statements of fact and expert witness statements (if required)
– Regulations, records and data from statutory bodies (CSA,
Meteorological Agency, EMA, MoWUD, MOT, Etc)
– ETC…
51
• Adopting these eight elements as a check list will give a
good starting point for drafting any extension of time
claim, in spite of each construction project being unique.
• Needless to mention, the assessment of EOT claims by

the Engineer as well as the Employer shall take into
account of this elements during the assessment of EOT
claims by the Contractor.
52
C. Evaluation of EOT Claims
– Program of Works: AS-PLANNED and

AS-BUILT Programs
– Principles for Analysis of Time and
Delay
– Construction Delay Analysis Techniques
– Problematic Areas: Rates of
Productivity, Float, Concurrency, Etc
Program of Works
• AS-PLANNED Program
– A baseline program that should serve as a starting point
when identifying delays
– A contemporaneous evidence of Contractor’s original
intentions with regard to activity durations, sequencing,
cash-flow, resourcing & logistics
– Even though a program may be accepted by the
Engineer/Employer, is contractually compliant and is
used for the planning and management of the project, a
review of baseline program may indicate:
• Inherent flaws or errors in Contractor’s assumptions, or
• It was simply not possible to construct the project in the
manner represented on the AS-PLANNED Program
54
Program of Works
– The analyst may need to correct it before relying on it in
any substantive way:
• ALL deviations (alteration or re-creation) from the Contractor’s
original AS-PLANNED Program must be made in a transparent
way
• AS-PLANNED Program is, after all, itself a theoretical model of
how a particular Contractor would like to build a project; it is not
a record of fact
– Programming softwares used today are manipulated:
• Contain many user-defined ‘settings’ which are not apparent
from the tabular or graphical reports generated in hard-copy
• Settings are buried deep in the pull-down menus that are only
accessible when the program is provided in its native software
• Reviewer has to have access to the same version of that
software to open and interrogate the program
Program of Works
– Validation of AS-PLANNED Program: Confirmation of
• 100% of the work scope is represented
• There is at least one continuous chain of activities from start
to completion
• All activities have at-least one predecessor and one
successor activity i.e appropriate start & finish constraints
• Durations for all activities along critical and near critical paths
are reasonable
• Logic along the critical path and near critical path is
reasonable & feasible (based on info during tender stage)
• That there are no delays or changes incorporated that would
not have been known at tender stage
• All milestones, constraints and sectional completion
milestones are represented accurately in the program
56
Program of Works
– Validation of AS-PLANNED Program: Confirmation of
• Any seasonal work is not scheduled to be performed out of season
• Appropriate national/regional/local holidays are allowed for
• Appropriate working calendars have been assigned (6-day)
• All local trade working rules are accurately modeled in the
calendars
• All third party interferences are represented, with appropriate
notification for statutory services, easements and right of way
• Employer/Engineer response times (action, determination,
certification, etc) are adequate & contractually compliant
– ‘WHAT-IF’ scenario analysis is also a useful tool to validate an original
AS-PLANNED Program
– AS-PLANNED Program must be a fully-linked bar chart, indicating
relationship types, leads and lags presented in the original
programming software
57
Program of Works
• AS-BUILT Program
– The main objective of delay analysis is establishing a factual
matrix and succinct chronology of the delay events which
caused the delay to completion of the project works
– A comparison b/n Contractor’s expressed intention (as
represented in the AS-PLANNED Program) and what actually
happened
• Very important to ensure a high degree of both detail and accuracy
are achieved in the preparation of AS-BUILT Program
• Preferable that the level of detail and activity descriptions are
consistent with the relevant AS-PLANNED Program
– Illustrates when an activity was active, as well as periods of
inactivity
• EXA: The green bars indicate days when progress was achieved,
whereas the red bars indicate days when a delay event was
documented (excusable delay), as well as when re-work and repairs
were documented (non-excusable delay)
58
AS-BUILT Program Total Total
Bill Revised Total Idle Remark (Resource Actually
Activity Description Unit (from 1st October 2012 to 24th November 2012) Working Delayed
Item Quantity Days Deployed)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 36 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Days Days
100(3) Clearing and Grubbing Ha 3.78 0 0 1 1 1 1 0 0 0 0 1 1 1 0 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 12 19 0 Completed as planned
3
102(2) Rock Excavation m 762.97 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 12 19 0 Shortage of explosives and re-work
3
102(3) Common Excavation m 4,521.11 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 13 18 0
102(5) Borrow Excavation (Case 2) m
3
24,255.89 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10 21 0
102(9) Furrow Ditches Lm 34.72 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10 21 0
3
300(1) Gravel Wearing Course m 1,875.08 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 9 22 0
406(1) Class A Concrete for Minor Drainage m3 30.33 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 23 0
407(1) Reinforcement Steel for Minor Drainage kg 2,702.39 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 23 0
Delayed start due to late mobilization of
3
407(2) Class B Masonry for Minor Drainage m 60.42 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 22 0 dozer for stone production
Interruption due to Riot over OT Payment
450(3d) 36" Diameter Class III RC Pipe Lm 26.42 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 22 0
450(3e) 42" Diameter Class III RC Pipe Lm 10.50 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 22 0
450(3f) 48" Diameter Class III RC Pipe Lm 20.83 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 1 1 1 1 1 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 23 0
406(1) Class A Concrete for Major Drainage m3 38.17 0 0 0 0 0 0 0 0 1 1 1 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 19 12 0
406(2) Reinforcement Steel for Major Drainage kg 5,347.36 0 0 0 0 0 1 0 1 1 1 1 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 18 13 0
Riot over OT Payment
407(1) Class B Masonry for Major Drainage m3 114.19 0 0 1 1 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 1 1 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 18 13 0 Delayed start due to late mob of dozer for
stone production
AS-PLANNED Program Total Total

Bill Revised Total Idle Remark
Item Quantity Days (Resource Deployment Plan)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 36 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Days Days
100(3) Clearing and Grubbing Ha 3.78 1 1 1 1 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 12 19 0
3
102(2) Rock Excavation m 762.97 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 12 19 0
102(3) Common Excavation m3 4,521.11 0 0 0 0 0 0 0 0 0 1 1 1 1 0 1 1 1 1 1 1 0 1 1 1 0 0 0 0 0 0 0 13 18 0
3
102(5) Borrow Excavation (Case 2) m 24,255.89 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 10 21 0
102(9) Furrow Ditches Lm 34.72 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 1 1 1 1 1 1 0 0 0 0 10 21 0
300(1) Gravel Wearing Course m3 1,875.08 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 1 9 22 0
406(1) Class A Concrete for Minor Drainage m3 30.33 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 23 0
407(1) Reinforcement Steel for Minor Drainage kg 2,702.39 0 0 0 0 1 1 0 1 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 23 0
3
407(2) Class B Masonry for Minor Drainage m 60.42 0 0 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 22 0
450(3d) 36" Diameter Class III RC Pipe Lm 26.42 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 9 22 0
450(3e) 42" Diameter Class III RC Pipe Lm 10.50 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 9 22 0
450(3f) 48" Diameter Class III RC Pipe Lm 20.83 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 1 1 1 1 1 0 1 0 0 8 23 0
406(1) Class A Concrete for Major Drainage m3 38.17 0 0 0 0 0 0 0 0 1 1 1 1 1 0 1 1 1 1 1 1 0 1 1 1 1 1 1 0 1 1 0 19 12 0
406(2) Reinforcement Steel for Major Drainage kg 5,347.36 0 0 0 0 0 1 0 1 1 1 1 1 1 0 1 1 1 1 1 1 0 1 1 1 1 1 0 0 0 0 0 18 13 0
3
407(1) Class B Masonry for Major Drainage m 114.19 0 0 1 1 1 1 0 1 1 1 1 1 1 0 1 1 1 1 1 1 0 1 1 0 0 0 0 0 0 0 0 18 13 0
Delay Mapping for EOT Analysis Total Total

Bill Revised Total Idle Remark
Item Quantity Days (Delay Event)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 36 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Days Days
100(3) Clearing and Grubbing Ha 3.78 1 1 0 0 0 0 0 1 1 1 0 0 0 0 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5 26 0
102(2) Rock Excavation m3 762.97 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 31 0
102(3) Common Excavation m3 4,521.11 0 0 0 0 0 0 0 0 0 1 1 1 1 0 0 0 0 0 0 0 0 0 0 0 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4 27 0
102(5) Borrow Excavation (Case 2) m3 24,255.89 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 0 1 1 1 1 1 0 0 -1 -1 -1 -1 -1 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 10 21 0
102(9) Furrow Ditches Lm 34.72 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 0 0 0 0 0 0 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 4 27 0
300(1) Gravel Wearing Course m3 1,875.08 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 1 0 0 0 0 -1 -1 -1 -1 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 9 22 0
406(1) Class A Concrete for Minor Drainage m3 30.33 0 0 0 0 0 0 0 1 1 1 1 1 1 0 1 1 0 0 0 0 0 -1 -1 -1 -1 -1 -1 0 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 23 0
407(1) Reinforcement Steel for Minor Drainage kg 2,702.39 0 0 0 0 1 1 0 1 1 1 1 1 1 0 0 0 0 0 -1 -1 0 -1 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 8 23 0
3
407(2) Class B Masonry for Minor Drainage m 60.42 0 0 1 1 1 1 0 1 1 1 1 1 0 0 0 0 -1 -1 -1 -1 0 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 9 22 0
450(3d) 36" Diameter Class III RC Pipe Lm 26.42 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 0 0 0 0 1 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5 26 0
450(3e) 42" Diameter Class III RC Pipe Lm 10.50 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 0 0 0 0 0 1 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5 26 0
450(3f) 48" Diameter Class III RC Pipe Lm 20.83 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 1 1 0 1 0 -1 0 -1 -1 -1 0 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5 26 0
3
406(1) Class A Concrete for Major Drainage m 38.17 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 0 0 0 -1 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6 25 0
406(2) Reinforcement Steel for Major Drainage kg 5,347.36 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 0 0 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 5 26 0
407(1) Class B Masonry for Major Drainage m3 114.19 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 1 1 1 1 1 0 0 0 -1 -1 -1 -1 -1 -1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 6 25 0
Principles for Analysis of Time and Delay
• Identification of Construction Delays
– The identification of delay events is one of the most
difficult, time-consuming and yet important aspect of
delay analysis
– Delay to planned work can occur only in three forms:
• Delay to commencement
• Extended duration to perform
• Suspension during performance
– Delay Identification can be done in two primary ways:
• Effect-Based Approach: Starts with an AS-BUILT Program
and works backwards, identifying deviations from the AS-
PLANNED Program (these are effects of the delay events)
• Cause-Based Approach: Develops a set of issues, events and
potential delay events and attempts to measure the impact of
these causes of delay on a base AS-PLANNED Program
60
• Identification of Construction Delays
– The events, circumstance or cause that potentially caused the
delay are categorized into:
• Contractor’s Risk Events (CRE)
• Employer’s Risk Event (ERE)
• Neutral Risk Events (NRE)
– Until any of these events are confirmed as having caused actual
delay, they are only risk events.
– Attempting to include every RFI, RFA, correspondence from
contracting & non-contracting party, into the list of events to be
analyzed, without some form of filter, is a tremendous task
resulting in wasted time & resources chasing irrelevant
chronologies
– Necessary to adopt (by Contractor & Employer alike) focused
and effective delay cause identification which are relevant to
causation & damages.
61
• Identification of Construction Delays: Types
– Compensable Delay: where a Contractor is entitled to financial recovery in
the form of direct and indirect time related costs arising from ERE
– Concurrent or Parallel Delay: occur when there are two or more
independent delays during the same time period. They are significant when
one is ERE and the other is CRE, the effects of which are felt at the same
time (i.e. Concurrent effect of sequential delay events)
– Critical Delay: A delay to the progress of any activity on a critical path of a
project which causes delay to the project completion
– Excusable Delay: a delay for which a Contractor will have relief from
damages (EOT) and potential financial entitlement
– Non-Excusable Delay: caused by Contractor
– Global Delay Claim (Total Time Claim): claim for the total project time over-
run, without discrete causal link established
– Local Delay: delay to a group of isolated activities which are not on a critical
path and which don’t impact the planned completion date
– Disruption: disturbance, hindrance or interruption to a Contractor’s normal
working methods, resulting in lower efficiency. Disrupted work is work that is
caddied out less efficiently than it would have been had it not been for the
cause of the disruption. 62
• Identification of Construction Delays: Source Data
Category Source of Data
Tender Documents Tender program Drawings issued for construction

Contract forms Contractor’s Proposals
Contract Documents Specifications Bills of Quantities
Employer’s Requirements Drawings issued for Construction
Construction program Revised program
Construction programs Sub-contractor’s program Updated AS-BUILT Program
Supplementary program
Programs Requests for Information/Approval
Minutes of Site Meeting Labor Returns
Contractors’ Progress Reports Drawing Issue Registers
Project & Site Records
Subcontractor’s report Plant Hire registers
Photographs & videos Certificates (time and money)
Sire diaries or logs Confirmation of Verbal Instructions
Drawing revisions Design change orders
Document/drawing transmittal Project staff list and attendance
Project Documents
sheets record
instructions Computer discs and hard-drives
Computer-aided simulations
Claim Related Delay notices Claim specific files (e.g. previous
Contemporary Records Failure to release information claim submissions, EOT awards)
63
notices Extension of Time Claims
• Critical Path Method (CPM) Schedule or Program
– A model of only one possible sequence of events required to complete
a given project
– The future holds too much uncertainty:
• Assumptions relied upon in creating a CPM Program (e.g. resource levels,
activity durations, sequence & relationships) are risks which could be affected
by unforeseen events, conditions or implemented change
• These assumptions and management interventions all have a bearing on the
actual performance on-site and the AS-BUILT critical path
– Float is a relative value indicating which activities are more critical than
others at a given point in time
– Critical path and float values of remaining tasks will change from time
to time due to the impact of change, unforeseen events, works
performed faster or slower than planned & Contractor's prerogative to
change the means and the methods of execution
– It is only when the project duration is extended (by way of critical path)
that prolongation damages are incurred
64
• Establishing Cause-Effect Relationship
– Prospective Delay Analysis: relies on the cause & its likely effect
• The Cause is the event, circumstance, or factor which resulted in
a potential delay to the completion of the project
• Starting with the cause requires the analyst to identify the likely
effect of the event
– Retrospective/Forensic Delay Analysis: relies on the effect & its
likely cause
• Once an actual delay has been experienced, the effect is a delay
period which is measurable in someway, using available AS-
BUILT progress documents, achieved milestones or program
information
• Commencing the analysis based on the actual delay suffered
(the ‘effect’), requires one to work backwards, by determining the
most likely ‘cause’ of that effect
65
• Establishing Liability under the Contract provisions
– ERE: an event, circumstance or cause which, under the Contract, is at
the risk & responsibility of the Employer
– CRE: an event, circumstance or cause which, under the Contract, is
not at the risk & responsibility of the Employer
– Excusable Delay: a delay event caused by an ERE which prolongs
planned completion date (NOT Contractual date of completion)
– Non-Excusable Delay: a delay even caused by a CRE, which could
have been prevented, or was a result of a breach of Contract or
contractor’s negligence
– Neutral Event: non-compensable & excusable event which may result
in the Contractor being awarded time, but no damages for the delay
Type of Event ERE CRE NRE ERE+CRE
Excusable YES NO YES YES
Non-Excusable NO YES NO NO
Compensable YES NO NO NO
Non-Compensable NO Extension YES YES YES 66
of Time Claims
Construction Delay Analysis Techniques
• (A) Impacted AS-PLANNED (IAP) Technique
– Additive method of delay analysis mainly applied prospectively
during the course of a project when the full extent of a delay is not
yet known
– Rely on either the AS-PLANNED CPM Logic or the most recently
updated, submitted & approved revised CPM Program
– Requires baseline program which is contractually compliant and
represents the contractor’s true intention prior to commencement
• If baseline program is not contractually compliant, or contains known &
identifiable logical or duration error/inconsistency, must be modified a priori
• Re-construction is undesirable & adds a layer of subjectivity to the IAP
analysis. Hence, is the last resort & modification must be agreed b/n parties.
– IAP is based on the effect of the ERE on AS-PLANNED Program,
assuming all else went as per Plan. Critiques on IAP include:
• Theoretical nature of the projected delays restricts accurate determination
• Uncertainty as to the feasibility of the Contractor’s AS-PLANNED Program
– Therefore, only estimates EOT entitlement only, not prolongation
cost as the technique is not able to demonstrate true concurrency
67
– Execution of IAP
Period Counter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
AS-PLANNED
IAP
ED
Combined IAP
CD ED NED
Non-Integrated IAP NED
ED
KEY PLAN EDE CDE
68
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
ACTIVITY A
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E
Completion Date
69
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
ACTIVITY A
ACTIVITY B
ERE
ACTIVITY C
ACTIVITY D
ACTIVITY E
Completion Date
70
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
ACTIVITY A
Add delays to
ACTIVITY B program and
ERE reschedule
ACTIVITY C
ACTIVITY D
ACTIVITY E
Impacted
Completion Date Compl. Date
71
• (B) Time Impact Analysis (TIA)
– TIA Analysis is based on the effect of delay events on the
Contractor’s intentions for the future conduct of the work in light of
progress actually achieved at the time of the delay event
– Can be used to assist in resolving more complex delay scenarios
involving concurrent delays, acceleration and disruption
– An additive and modelled technique b/c it is based on ‘what if’
simulations of various CPM baseline programs
– The main difference b/n IAP and TIA method is the use of ‘multiple
base’ programs in the TIA as opposed to a ‘single base’ (i.e. the
baseline) in the IAP
• TIA uses multiple baselines, rather than the original AS-PLANNED baseline, to
measure the likely impact of delay events
• Each base program is a CPM schedule representing the Contractor’s intentions
for completion of all remaining work (i.e an updated/revised Contractor’s work
program), prior to the insertion of delay events
– Should be used with due care as it involves many variables,
assumptions and options within a labor-intensive & complex analysis
• (B) Time Impact Analysis (TIA) Technique
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
ACTIVITY A Add progress upto start of

delay event
ACTIVITY B Act. A to C were already in delay
ACTIVITY C
ACTIVITY D
ACTIVITY E
Completion Date
73
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
ACTIVITY A
Reschedule
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E Impacted CD
caused by CRE
Completion Date of progress delay
74
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
ACTIVITY A
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E Add ERE and reschedule Impacted CD

caused by
Completion Date EOT due ERE
75
• (C) Collapsed AS-BUILT (CAB) Technique
– CAB is based on estimating the effect of ERE on the Program of
Works as it was actually built
– Relies on simulation of ‘what-if’ scenario based on a CPM which
models not Contractor’s intentions, but rather the Contractor’s
actual sequences and durations
– Is a deductive/subtractive approach that uses exactly the
opposite philosophy to that relied in in IAP and TIA
– Analysis must be satisfied that the AS-BUILT Program is
contractually compliant. i. e.
• That all milestones are represented accurately
• All scope is represented to the appropriate level of detail
• All off-site work, including design & procurement activities are
adequately represented
• Calendar assignments accurately reflect the way in which the
work was carried out (duration of working day/week/month) 76
– AS-BULT Logic must be incorporated with due care to ensure
that logical relationship for the activities is accounted for
• EXA: Planned sequence of activities for a gravel road project
– AS-PLANNED Program depicts that FF relationship is incorporated b/n
completion of CG & EW and EW and SB and SB and ANC.
– In the event that SB actually complete same period as EW for the
reason of delayed design information pertinent to earthworks
– The CAB Analyst should not conclude that there is a FF+0 relationship
between EW & SB or a FF+6 relationship b/n CG & EW.
– Here, commencement date of activities is more important than finish time
Period Counter 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
Clearing & Grubbing FF+3
AS-PLANNED Earth Works FF+3
Sequence Sub-base FF+2
Ancillary
Clearing & Grubbing
AS-BUILT Earth Works
Sequence Sub-base
Ancillary 77
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
ACTIVITY A Develop AS-BUILT Program and determine

actual logic links b/n activities
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E
Actual CD
Completion Date
78
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
ACTIVITY A
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E Identify ERE delaying the

critical activity Actual CD
Completion Date
79
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
ACTIVITY A Remove ERE delaying the project

and schedule AS-BUILT Program
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E
Actual CD
Completion Date CD 'but-for' ERE Delay Events EOT due
80
• (D) AS-PLANNED Vs AS-BUILT Techniques
– AS-Built based analytical techniques which do not rely on
calculated CPM models, as described previously
– Useful to evaluate complex claims that involve estimation of the
effects of acceleration (or attempted acceleration) or early
completion program
– Require a method which calculates a theoretical impact, as well
as one which demonstrates what actually happened
– In its simplest form, the analysis compares the planned duration
with the actual duration of a project and asserts the difference as
being both excusable and compensable. Approach mush show:
• The AS-PLANNED ‘baseline’ schedule was reasonable
• The Contractor’s performance was reasonably efficient
• The Contractor did not contribute to critical delay
• The difference b/n AS-PLANNED & AS-BUILT durations is entirely
attributable to excusable events
• The complexity of the project makes it impossible or impractical to
account for time impacts of other parties in any other way 81
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
Identify AS-BUILT Critical Path

ACTIVITY A
Comparative AS-PLANNED
and AS-BUILT Progams
Activities A, B, E are delayed
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E
Actual CD
Completion Date Planned CD
82
– EXAMPLE
ACTIVITY 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17
ACTIVITY A
Identify critical ERE delay events
ACTIVITY B
ACTIVITY C
ACTIVITY D
ACTIVITY E
Delay Event from ERE
Actual CD
Completion Date Planned CD EOT due
83
• Technique Selection Criteria and Guidance
– Determining which technique is the most appropriate is the most
subjective task and, even when agreement is reached b/n the
parties, often the application of the same ‘technique’ varies to such
an extent that neither party is willing to accept the other’s conclusion.
– Factors to choose an appropriate delay analysis technique:
SCL Protocol US Methods
The relevant conditions of Contract Contractual requirements
The nature of the causative events Purpose of analysis
The value of the dispute Source data availability & reliability
The time available for analysis Size of the dispute
The records available Complexity of the dispute
The program info available Time & Budget for forensic schedule analysis
The programmers skill level & familiarity with the Expertise of the analyst & resources available
project
Forum for resolution & audience
Legal or procedural requirements
Past history/methods and what method the other
side is using 84
Problematic Areas: Productivity, Float, Etc
• Rates of Productivity
– Underlying any program, and much analysis of delay & disruption,
is the assessment of the productivity that was assumed in the
program and that which could have been, or was being, actually
achieved on site. But, productivity ≈ cost
• Tender Productivity: production rate, labour and resources assumed
in Contractor’s tender pricing & tender program
• Achievable Productivity: Contractor may assume reasonable rates
during tender but they have changed due to factors not related to any
delaying event being considered. Ex.
– Extraneous factors such as economic circumstances
– Factors peculiar to the contract such as any difference b/n anticipated
and actual site/physical conditions
• Actual Productivity after a Change: demonstrating that an
instructed change to the works has caused a change/reduction in
productivity
– Difficulty arises from the need to isolate, or account for, all other potential
causes of change in productivity
– Problem can arise before/after commencement of affected activity 85
• Rates of Productivity
– Fundamental Principles: There are four principal pieces of information
required when assessing the time required, or price, for any substantial
construction activity:
1. Relevant quantities of work required for the activity: tender BOQ, revised quantity,
final quantity based on AS-BUILT info
 EXA: EW quantity is only nominal quantity in BOQ and doesn’t consider
bulking/shrinkage of materials. Hence, correct to estimate production rate.
2. Construction equipment and methods best suited to the task in the circumstances
 EXA: balancing of resources, method statement, crew formation & sequencing
3. Sustainable Outputs: Outputs that can be expected from the resources required on a
sustained basis
 Consider time of availability, efficiency factors, etc but not inefficiency/poor mgt
of resources to reflect actual working conditions
4. Recalculation using Efficiency Factors: Level of resources required to complete the
activity in the time required, or the time required to complete the activity with
available or optimum resources.
– In the context of time & delay analysis, the costs incurred by a contractor for
plant & equipment do not always vary in proportion to the time expended
86
• Float & Delay Claims
– Definition of Float: Float = sequence of activity – critical path
• Total Float: the amt of time a task must be delayed w/o impacting the earliest
finish of the project completion date
• Free Float: the amt of time a task must be delayed w/o impacting the early start
date of the successor activity
• Terminal/Finish/End Float, Hidden Float, Etc
– How Float is used:
• Programming constraints
– Measurement of Float Loss:
• Float Loss and the impact
• How we measure the Float e.g. which program is applicable
– Who owns the Float?
• The Contractor, The Employer or the Project (first come first served basis)
– Unless there is express provision to the Contrary in the Contract, where
there is remaining float in the program at the time of an ERE, an EOT
should only be granted to the extent that the EDE is predicted to reduce to
below zero the total float on the activity paths affected by the Employer
Delay
• Concurrency
– The matter of identifying and apportioning liability and attempting
to isolate the costs that were experienced as a direct result of the
contribution of one party, or the other, to the overall delay
– Concurrent Delay: a period of a project over-run which is
caused by two or more effective causes of delay which are of
equal causative potency
– Common Questions:
 Where two concurrent causes of delay occur, one of
which is a relevant event, and the other is not, is the
Contractor entitled to an EOT?
 YES but probably not prolongation Costs
 Is a Contractor entitled to an EOT if variations are
instructed during a period of ‘culpable delay’, that is after
the Contract completion date has passed?
 MAY BE … due care & caution by CA required
88
• Program Approvals and Onerous Specifications
– Program Requirements, Format & compliance
• Contractor’s Program must show, with sufficient detail,
Contractor’s intentions to execute the project
• Base program for delay evaluation must be agreed as per Sub-
Clause 14 for original or revised programs
• Untimely submission/updating and sub-standard/manipulated
program is a problem area
– Approval or acceptance of Construction program
• Review ad approval by the Engineer/Employer is a subjective
process when it comes to Contractor’s program
• It is important for the Employer’s representative to be proactive
and to act reasonably in reviewing and approving the
Contractor’s program
• Unreasonable withholding of approvals & determinations may
apply against Employer/Engineer too 89
• Acceleration and Mitigation
– Mitigation: there is a general duty on a party to a contract, when
incurring costs as a result of breach by the other party, to mitigate the
costs so incurred
• What is reasonably possible? To what extent? Which steps should be taken by a
reasonable & experienced Contractor to reduce the effects of delay? The effect of
insurance in mitigation/minimization of damages
• A Party cannot recover damages:
– Resulting from the other party’s breach of contract if it would’ve been possible to avoid
any damage by taking reasonable measures
– Which he has avoided by taking measures, even if such measures were greater than
what might be considered reasonable
• A Party can recover the cost of taking reasonable measures to avoid or mitigate
(reduce) his potential damages
– Acceleration: the execution of the planned scope of work in a shorted
time than anticipated or the execution of an increased scope of work
within the originally planned duration
• Instruction for Acceleration Vs. Constructive Acceleration
• How will the cost be established for accelerated works
• Improper administration of the provisions of the contract may lead to acceleration
claims …

D. Case Studies and Prospects
– Evaluation of Selected Claim

Heads
– The WAY Forward: The Claims
Industry
Evaluation of Selected Claim Heads
• (1) Increase in Quantity Claim
– increase in quantity of different activities as a result of
design changes made for the road length
• Contractor initially planned the activity of removal of unsuitable material to
be completed up to February 15, 2010 as per his approved program. Since
this item has increased by 227,225m3, the Contractor said it has become
critical.
• However, the Contractor has managed to actually perform 997,026m3 of
removal of unsuitable material up to 30th November 2009 on site against the
planned quantity of 831,450 m3. From this, the Engineer has concluded that
the item of removal of unsuitable material will no more be the critical activity
and his claim for EOT based on the criticality of removal of unsuitable
material was rejected.
• Following this, the Contractor has once again applied for EOT determination
for the same number of days (243 days) on a basis that the item of Granular
Sub-Base (GSB) has become critical.
– Contractor has accelerated the item of removal of unsuitable material by delaying execution
of other activities like select fill type-A, select fill type-B, GSB, base course, DBM and AC so
as to avoid idling of equipment
92
• (1) Increase in Quantity & Design Delay Claim
• The Engineer has made recommendation by calculating the excess quantity of
removal of unsuitable material that the Contractor executed above his total planned
quantity up to December 2009. After getting the quantity, the number of days is found
by using the production rate shown by the Contractor in his work program. By doing
so, the Engineer has tried to get the quantity of GSB, which the Contractor might have
delayed by accelerating the removal of unsuitable material
• After that, the total balance quantity of GSB, which is the planned quantity by the
Contractor to be executed with effect from January 1, 2010 including that instructed
through VO-1 and VO-5, is calculated. Then, the time required for completing the
balance quantity is found by dividing it with the production rate of GSB
EOT
Quantity to Daily requested
Item
Description be executed production (working
No.
days)
a b c = a/b
1 Granular Sub-Base 151,640m3 849.60 m3/day 178
2 Additional time required for Base Course 14,134m3 624.6 m3/day 23
3 Additional time required for DBM 43,956 m2 3923.38 m2/day 11
4 Additional time required for AC 43,956m2 5885.1 m2/day 7
5 Additional time required for incidental works 7
6 Sundays 37
7 Public Holidays 9
8 Days for Rainy Season for year 2010 76
7 Time required with effect from January 2010 348 days
Additional time required for completion of the work
beyond the original completion date 189 days 93
Revised Completion date December 14, 2010
– Employer’s Assessment
• basis of EOT calculation should be the Contractor’s Sub-Clause 14.1 work
program
• the Contractor would only be entitled to an EOT due to an Employer’s risk
event, on the condition that the total float time available has fully been
utilized or the events are sufficient enough to reduce the total float to below
zero and become critical activity
• We have noted that the Contractor has better daily production for some
activities on site as compared to the one shown in the work program
• three cases of the applicable productivity rates & amount of work
already executed on 30th November 2009, the period of time applicable for
the analysis taken from the time at which the Contractor filed his EOT
request
– Production rates of the original Sub-Clause 14.1 work program and planned work
planned to be executed by November 2009
– Actual production rates on site and actually executed work load by November 2009
– Combination of the Original and Actual Production rates as well as planned and
actually executed work load by November 2009, whichever that favors the employer
94
TABLE 1: History of Contractor's Actual Production Rates for Selected Bill Items
Pay Item 41.01 Removal of Pay Item 42.01 (a) Cut and Pay Item 42.01 (b) Select fill Pay Item 42.01 (g) Select fill Pay Item 52.01 Crushed- Pay Item 64.02 Asphalt Concrete
BOQ Item No. Pay Item 51.01 Sub- Base Pay Item 64.01 DBM Course
Unsuitable Material Borrow to Fill "Type-B" "Type-A" Rock/Stone Base surfacing course
Daily Rate of Daily Rate of Daily Rate of Daily Rate of Daily Rate of Daily Rate of QTY Daily Rate of Daily Rate of
Month QTY QTY QTY QTY QTY QTY QTY
Production Production Production Production Production Production Production Production
Oct-07 90 3 186 6 0 0 0 0 0 0 0 0 0 0 0 0
Nov-07 1,500 50 4,541 151 0 0 0 0 0 0 0 0 0 0 0 0
Dec-07 34,067 1,099 2,803 90 0 0 0 0 0 0 0 0 0 0 0 0
Jan-08 87,952 2,837 6,016 194 5,813 188 5,813 188 0 0 0 0 0 0 0 0
Feb-08 108,313 3,868 15,507 554 5,664 202 5,664 202 197 7 0 0 0 0 0 0
Mar-08 59,289 1,913 33,182 1,070 11,661 376 11,661 376 6,093 197 0 0 0 0 0 0
Apr-08 64,569 2,152 21,793 726 11,067 369 11,067 369 5,977 199 0 0 0 0 0 0
May-08 91,173 2,941 41,608 1,342 15,939 514 15,939 514 3,158 102 0 0 0 0 0 0
Jun-08 12,439 415 2,925 97 2,512 84 2,512 84 2,173 72 0 0 0 0 0 0
Jul-08 11 0 213 7 0 0 0 0 0 0 0 0 0 0 0 0
Aug-08 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Sep-08 0 0 70 2 0 0 0 0 0 0 0 0 0 0 0 0
Oct-08 60,096 1,939 13,515 436 3,243 105 3,243 105 1,824 59 2,569 83 0 0 0 0
Nov-08 45,840 1,528 2,463 82 6,066 202 6,066 202 8,983 299 13,155 438 44,058 1,469 0 0
Dec-08 36,964 1,192 12,338 398 40,227 1,298 40,227 1,298 39,116 1,262 9,850 318 11,809 381 49,308 1,591
Jan-09 28,208 910 3,186 103 41,931 1,353 41,931 1,353 49,866 1,609 24,445 789 77,420 2,497 6,580 212
Feb-09 32,109 1,147 6,342 226 26,712 954 26,712 954 45,734 1,633 29,525 1,054 76,094 2,718 65,800 2,350
Mar-09 38,554 1,244 17,555 566 53,383 1,722 53,383 1,722 51,002 1,645 17,601 568 130,949 4,224 19,252 621
Apr-09 13,591 453 1,361 45 14,758 492 14,758 492 42,234 1,408 27,132 904 75,979 2,533 0 0
May-09 46,670 1,505 4,329 140 13,809 445 13,809 445 30,481 983 20,869 673 127,816 4,123 0 0
Jun-09 52,439 1,748 13,140 438 0 0 0 0 2,822 94 548 18 22,723 757 0 0
Jul-09 4,271 138 4 0 0 0 0 0 0 0 0 0 0 0 0 0
Aug-09 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0
Sep-09 2,349 78 370 12 0 0 0 0 0 0 0 0 0 0 0 0
Oct-09 77,518 2,501 13,515 436 1,661 54 1,661 54 2,046 66 0 0 0 0 0 0
Nov-09 72,542 2,418 28,737 958 18,822 627 18,822 627 0 0 6,792 226 0 0 48,466 1,616
Dec-09 11,999 387 8,295 268 20,504 661 20,504 661 2,775 90 4,665 150 0 0 77,211 2,491
Jan-10 4,638 150 3,678 119 42,227 1,362 42,227 1,362 38,235 1,233 1,358 44 0 0 247,972 7,999
Feb-10 0 0 0 0 18,588 664 18,588 664 22,056 788 7,427 265 9,158 327 0 0
Mar-10 21,213 684 4,806 155 5,551 179 5,551 179 16,593 535 6,662 215 10,730 346 31,915 1,030
Apr-10 4,512 150 1,827 61 6,584 219 6,584 219 330 11 8,632 288 9,156 305 0 0
Average Actual Daily
Production Rate for the 1,846.75 m3/day 518.67 m3/day 940.79 m3/day 900.03 m3/day 1,232.93 m3/day 677.80 m3/day 2,337.740 m2/day 2,238.584 m2/day
Selected Months
95
96
TABLE 2: Analysis Based on Planned Rates (From Sub-Clause 14.1 Work Program) of Production
Original BOQ VO-1 VO-5 Duration Required 30-Nov-09

Planned Planned Quantity for Balance Quantity for Remaining Revised Completion
Bill Item Work item Prod/day Quantity Duration Quantity Duration Quantity Duration Execution (Nov. 2009) by Nov. 2009 Works Date Remark
41.01 Removal of unsuitable material (m3) 1571.75 933,620.00 594 180,345.00 115 46,880.00 30 831,450.00 329,395.00 209.57 27-Jun-10
42.01(a) Cut and Borrow to fill (m3) 1447.80 846,960.00 585 106,846.00 74 58,600.00 40 765,920.00 246,486.00 170.25 19-May-10 Parallel with 41.01
42.01(g) Select fill Type A (m3) 2072.20 1,137,635.00 549 34,748.16 17 34,960.00 17 1,035,120.00 172,223.16 83.11 21-Feb-10 Parallel with 41.01
42.01(b) Select Fill Type B (m3) 669.32 365,450.00 546 21,172.48 32 22,386.00 33 333,270.00 75,738.48 113.16 23-Mar-10 Parallel with 41.01
51.01 Granular Subbase layer (m3) 849.60 472,803.00 557 9,236.05 11 7,415.00 9 387,590.00 101,864.05 119.90 29-Mar-10
52.02 Crushed stone base layer (m3) 624.60 285,754.00 457 11,374.00 18 2,760.00 4 219,600.00 80,288.00 128.54 7-Apr-10
64.01 DBM Course (m2) 3923.38 953,382.00 243 30,306.00 8 13,650.00 3 596,710.00 400,628.00 102.11 12-Mar-10
64.02 AC (m2) 5885.10 953,382.00 162 30,306.00 5 13,650.00 2 592,140.00 405,198.00 68.85 6-Feb-10
Original Date of Completion = 8-Jun-10

Revised Date of Completion = 27-Jun-10
EOT to be Granted = 21 Working Days
TABLE 3: Analysis Based on Actual Rates (From As Built Work Program) of Production
Original BOQ VO-1 VO-5 Duration Required 30-Nov-09

Actual Actual Quantity Balance Quantity for Remaining Revised Completion
Bill Item Work item Prod/day Quantity Duration Quantity Duration Quantity Duration Executed (Nov. 2009) by Nov. 2009 Works Date Remark
41.01 Removal of unsuitable material (m3) 1846.75 933,620.00 506 180,345.00 98 46,880.00 25 970,554.00 190,291.00 103.04 13-Mar-10
42.01(a) Cut and Borrow to fill (m3) 518.67 846,960.00 1633 106,846.00 206 58,600.00 113 214,518.00 797,888.00 1,538.33 15-Feb-14 Parallel with 41.01
42.01(g) Select fill Type A (m3) 940.79 1,137,635.00 1209 34,748.16 37 34,960.00 37 1,006,792.00 200,551.16 213.17 1-Jul-10 Parallel with 41.01
42.01(b) Select Fill Type B (m3) 900.03 365,450.00 406 21,172.48 24 22,386.00 25 262,864.00 146,144.48 162.38 11-May-10 Parallel with 41.01
51.01 Granular Subbase layer (m3) 1232.93 472,803.00 383 9,236.05 7 7,415.00 6 291,705.00 197,749.05 160.39 9-May-10
52.02 Crushed stone base layer (m3) 677.80 285,754.00 422 11,374.00 17 2,760.00 4 152,758.00 147,130.00 217.07 5-Jul-10
64.01 DBM Course (m2) 2337.74 953,382.00 408 30,306.00 13 13,650.00 6 566,848.00 430,490.00 184.15 2-Jun-10
64.02 AC (m2) 2238.58 953,382.00 426 30,306.00 14 13,650.00 6 172,386.00 824,952.00 368.52 3-Dec-10
Original Date of Completion = 8-Jun-10

Revised Date of Completion = 3-Dec-10
EOT to be Granted = 180 Working Days
TABLE 4: Analysis Based on both Planned Rates (From Sub-Clause 14.1 Work Program) and Actual Rates (From As Built Work Program) of Production
Original BOQ VO-1 VO-5 The Maximum of 30-Nov-09

Planned & Actual Duration Required
MAX Quantity Executed (Nov. Balance Quantity for Remaining Revised Completion
Bill Item Work item Prod/day Quantity Duration Quantity Duration Quantity Duration 2009) by Nov. 2009 Works Date Remark
41.01 Removal of unsuitable material (m3) 1846.75 933,620.00 506 180,345.00 98 46,880.00 25 970,554.00 190,291.00 103.04 13-Mar-10
42.01(a) Cut and Borrow to fill (m3) 1447.80 846,960.00 585 106,846.00 74 58,600.00 40 765,920.00 246,486.00 170.25 19-May-10 Parallel with 41.01
42.01(g) Select fill Type A (m3) 2072.20 1,137,635.00 549 34,748.16 17 34,960.00 17 1,035,120.00 172,223.16 83.11 21-Feb-10 Parallel with 41.01
42.01(b) Select Fill Type B (m3) 900.03 365,450.00 406 21,172.48 24 22,386.00 25 333,270.00 75,738.48 84.15 22-Feb-10 Parallel with 41.01
51.01 Granular Subbase layer (m3) 1232.93 472,803.00 383 9,236.05 7 7,415.00 6 387,590.00 101,864.05 82.62 20-Feb-10
52.02 Crushed stone base layer (m3) 677.80 285,754.00 422 11,374.00 17 2,760.00 4 219,600.00 80,288.00 118.45 28-Mar-10
64.01 DBM Course (m2) 3923.38 953,382.00 243 30,306.00 8 13,650.00 3 596,710.00 400,628.00 102.11 12-Mar-10
64.02 AC (m2) 5885.10 953,382.00 162 30,306.00 5 13,650.00 2 592,140.00 405,198.00 68.85 6-Feb-10
Original Date of Completion = 8-Jun-10 97

Revised Date of Completion = 28-Mar-10
EOT to be Granted = 0 Calender Days Extension of Time Claims
Bill Planned Actual MAX
Item Work item Prod/day Prod/day Prod/day
Work Program As Built (C) =
(A) (B) Max (A, B)
41.01 Removal of unsuitable material (m3) 1,571.75 1,846.75 1,846.75
3
42.01(a) Cut and Borrow to fill (m ) 1,447.80 518.67 1,447.80
3
42.01(g) Select fill Type A (m ) 2,072.20 940.79 2,072.20
3
42.01(b) Select Fill Type B (m ) 669.32 900.03 900.03
3
51.01 Granular Sub-Base layer (m ) 849.60 1,232.93 1,232.93
3
52.02 Crushed stone base layer (m ) 624.60 677.80 677.80
2
64.01 DBM Course (m ) 3,923.38 2,337.74 3,923.38
2
64.02 AC (m ) 5,885.10 2,238.58 5,885.10
• The analysis is based on considering either the planned or actual work executed by
30th November 2009 to find out the remaining balance of work by the end of that
period and applying the original or Actual productivity rate, whichever applies for the
three cases mentioned above, to determine the amount of time required to complete
the balance work from 30th November 2009
• The first case results in an extended duration of 21 working days for the activity of
removal of unsuitable material. The second case where actual productivity as well as
executed work is used for analysis, an extended duration of 180 working days are
required to complete remaining asphalt works. Finally, taking either of the maximum of
planned and actual values, results in nil duration to be given to the Contractor
98
• Removal of unsuitable material is the critical activity on which the EOT
entitlement finds its base. Cut and borrow to fill and Select Fill Type A and
Select Fill Type B can be done concurrently with removal of unsuitable
material as shown in the Contractor’s original work program.
• To complete the subsequent activities, the Contractor needs additional time
S. Day
Description Remark
No. s
Time required to carry out removal of
1 21 From Table above
unsuitable material (working days)
Cut and borrow to fill, selected Type-A fill and
Time required to carry out the
selected Type-B fill are to be carried out
2 consecutive activities (working days) 55 simultaneously with removal of unsuitable material
Sub-Total 1 76 Working Days
3 Sundays/Weekly rest days 10 Counting from Calendar

Neutral days for rainy season for year
4 76 From Contractor’s program
2010
5 Public Holidays 0 Counting from Calendar
Sub-Total 2 86
Time required for completion with
effect from 8th June 2010 = Sub-Total 162 Calendar Days
(1 + 2)
Revised Completion Date 17th November 2010
99
• (2) Adverse Weather Claim
• The Contractor alleges that his working progress has been frequently
disturbed by exceptionally adverse unseasonal rainfall.
• The Contractor based his claim on Sub-Clause 20.4 (d) (i) of the CoPA,
Employer Risks which states “any operation of the forces of nature (insofar as
it occurs on the site) which an experienced Contractor could not have
reasonably foreseen”.
• The Contractor has attached his detail particulars of the rainfall data from
1997 to 2009 at … Town Metrological station and the associated calculations
for the evaluation of the adverse rainy days.
• The Contractor based his calculation on the rainfall data jointly measured by
the Supervision Consultant and himself at Engineer’s Camp (from August
2009 to June 2010) which is located in the middle of the project stretch.
• The Contractor considers that if the actual daily rainfall is greater than the ten
years average monthly rainfall, that day shall be considered as exceptionally
adverse rainy day.
• EOT requested is equivalent to the number of rainy days having rainfall
amount greater than the ten years average monthly rainfall for each particular
month
100
Knock
Months Jan Feb Mar Apr May Jun July Aug Sep Oct Nov Dec Total
on effect
10 yrs avg 0.30 0.33 1.00 3.4 1.93 1.25 2.93 1.79 0.59 1.04
2007 Heavy 0
2008 0 0 0 4 5 0 3 seasonal 2 3 0 7 24
2009 2 0 3 3 5 2 4 rainy 3 0 0 7 29
2010 0 2 6 7 5 2 0 period 8 30
Total EOT 2 2 9 14 15 4 7 5 3 0 22 83
• Engineer’s Determination
– the seasonal heavy rainy days were considered in his Clause 14.1
programme but the unexpected heavy adverse rain has disrupted the
Contractor’s progress on different occasions
– The Contractor, however, has not given the specific details of such spell of
rainy days and the effect with evidence of disruption of work during such
periods
– The Engineer also stated that upon his request for clarification, the
Contractor submitted his basis of adverse climatic conditions which he
found to be unsatisfactory
– Therefore, the Engineer is of the opinion that no time extension be
granted to the Contractor under this claim head
101
• Employer’s Assessment
– Sub-Clause 44.1 (c) of the CoC which states that “In the event of
exceptionally adverse climatic conditions, being such as fairly to
entitle the Contractor to an extension of time for completion…”.
– the Contractor’s argument that if the actual daily rainfall is greater than
the ten years average monthly rainfall, that day will be considered as
exceptionally adverse rainy day is not admissible
– we have considered an EOT for the Contractor if the maximum rainfall
recorded for the current month is greater than the 10 years maximum
rainfall of the respective months
Maximum Monthly Rainfall (mm)
YEARS
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
2007 0 26.6 8 26.6 43.4 0 36 16.2 4 0
2006 11.5 13.4 32.4 24.4 19.4 20.1 5.9 43.5 16.8 32.9
2005 7 5.6 22.5 27.4 26.8 10 36.4 25 1.4 10
2004 10.4 0 25.4 40.4 14.7 6.6 12.2 Rainy Season as per 21.4 31.1 0
2003 11 7.5 10 59 38.2 17.7 21.6 Sub-Clause 14.1 0 0 0
2002 13 0 1.2 29.8 29.6 12.1 16.6 Program 22 0 19.8
2001 0 30.2 16.4 20.4 30 20.3 17 38 0 0
2000 0 0 0 31.3 11.8 33.3 25.5 19.2 19.4 8.3
1999 0 0 0 0 0 0 14.4 15.3 0 0
1998
Data Not Available
1997
10-years Peak 13 30.2 32.4 59 43.4 33.3 36.4 43.5 31.1 32.9
10-years Mean 5.88 9.26 12.88 28.81 23.77 13.34 20.62 22.29 8.08 7.89
– What constitutes exceptionally adverse weather condition that an
experienced Contractor could not have foreseen?
Max The 10 years Total working days > 10
Year Month Date Remark
Recorded Max years MAX rainfall.
Period before June 2008 will not be entitled any EOT as data is
2008 July 36 0
not provided by National Meteorological Agency
Jan 26 15.6 13 0
Feb 0 0 30.2 0
Mar 31 48 32.4 1
Apr 4 43 59 0
May 18 24.4 43.4 0
Jun 18 12.8 33.3 0 The Contractor is granted an EOT for Only the maximum rainfall
2009
Jul 6 25.5 36 0 in the respective month of greater than the 10 years
Aug
Rainy season
Sep
Oct 12 46 43.5 1
Nov 0 0 31.1 0
Dec 0 0 32.9 0
Jan 9 16 13 1
Feb 31 24 30.2 0
Mar 1 24 32.4 0
2010 Apr 14 and 25 36 59 0
May 9 14 43.4 0
Jun 17 18 33.3 0
Jul 15 19 36 0
EOT for Adverse weather based on 10-years peak rainfall 3 days

– What constitutes exceptionally adverse weather condition?
Max Recorded The 10 years
Year Month Date RF (mm) Mean RF (mm) IF(A>=B, 1, 0) Remark
(A) (B)
Period before June 2008 will not be entitled any EOT as data is
2008 July - - 20.62 0
not provided by National Meteorological Agency
Jan 26 15.6 5.88 1
Feb 0 0 9.26 0
Mar 31 48 12.88 1
Apr 4 43 28.81 1
May 18 24.4 23.77 1
Jun 18 12.8 13.34 0 The Contractor is granted an EOT for Only the maximum rainfall
2009
Jul 6 25.5 20.62 1 in the respective month of greater than the 10 years
Aug
Rainy season
Sep
Oct 12 46 22.29 1
Nov 0 0 8.08 0
Dec 0 0 7.89 0
Jan 9 16 5.88 1
Feb 31 24 9.26 1
Mar 1 24 12.88 1
2010 Apr 14 and 25 36 28.81 2
May 9 14 23.77 0
Jun 17 18 13.34 1
Jul 15 19 20.62 0
EOT for Adverse weather based on 10-years peak rainfall 13 days

– Sub-Clause 44.1 (c) of the CoC states that “In the event of exceptionally
adverse climatic conditions, being such as fairly to entitle the Contractor
to an extension of time for completion…”.
– Sub-Clause 44.1 (c) of the COPA states that ….>5mm RF?
• Check for representativeness of the provided data of the project situation
– Historical data must be obtained from a representative meteorological
station pertinent to project location
– Rain gauge data (e.g. from Contractors’ Camps) must be representative
of the project stretch
• Contract clause must be reviewed to determine the risk already assumed by
the Contractor in his tender & programs
• Determine days which are considered as adverse based on COC for potential
EOT entitlement
• Estimate the likely impact (disruption potential & knock-on effect) of the
adverse weather condition to the Contractor’s operations (e.g. from AS-BUILT
Program)
• Identify which days overlap with non-working days (e.g. weekends, holidays,
etc) in the applicable AS-PLANNED Program to determine the excusable
delay incurred by the Contractor
The WAY Forward
• The Claim Industry will continue to be manipulated
• In order to avoid Time-AT-Large scenario, it should be
sufficient for the Engineer/Employer to:
– determine a bona fide and reasonable extension of time
• based on the information available to him at the time, and
• within a reasonable time, or the contractually-required time of the contractor’s
application and
– to leave the parties subsequently to contest responsibility for the
remaining delays before the DRE or other mechanism.
• Pro-active Claims Management is necessary both by the
Engineer and the Employer
• Program is useful not only for the contract administrator
but also the Claimant himself to ascertain his claims
• Records are very important for both the Engineer &
Contractor to keep before events give rise to claims
106
The WAY Forward
• Productivity Rates applicable to EOT assessment must be
based on Contractor's tender & programs
• Float must be treated as a commodity in the program
• In case of concurrency b/n ERE and CRE, the analyst must
ascertain that their effect is felt at the same period
• Work Program requirements should not be too demanding
for the Contractor to produce & their approval should not be
unreasonably delayed
• Mitigation of damage is a subjective matter which requires a
balanced & impartial view to decide upon
• Constructive Acceleration Claims are difficult to prove
• Contractor & Engineer Representatives must work together
through claim situation in partnership than developing
adversarial relationship
107
References
• Building Contract Claims, D. Chappell & V. Powell-Smith, Backwell Publishing,
United Kingdom, Fourth Edition, 2005
• Common Law “Time at Large” Arguments in a Civil Law Context, John Bellhouse
and Paul Cowan, White & Case LLP, 2007, London
• Delay Analysis in Construction Contracts, P.J. Keane & A.F. Caletka, 2008, First
Edition, United Kingdom
• Evaluating Contract Claims, R.P. Davidson & J. Mullen, 2009, Second Edition,
United Kingdom
• Liquidated Damages and Extensions of Time, B. Eggleston, Third Edition, United

Kingdom
• SCL Delay & Disruption Protocol, October 2002, www.scl.org.uk, United Kingdom
108
Thank You !!
THE END

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Construction Contract Claims

Extension of Time for Completion

Why Extend Completion Date?

• Sub-Clause 1.1 (c)(ii) : "Time for Completion“

• Sub-Clause 53.5 Payment of Claims

• Art. 1802 - Duty to limit the extent of the damage

• Art. 1863 - Lapse of time

• Art. 1865 - Benefit of Period of Time

• Art. 1865 - Loss of Benefit of Time

• Art. 3175 – Time (2) Prerogative of Administrative

– The benefit to the Employer is two-fold:

2. Liability for the Event: Once an event has been identified

• Needless to mention, the assessment of EOT claims by

– Program of Works: AS-PLANNED and

AS-PLANNED Program Total Total

Delay Mapping for EOT Analysis Total Total

Tender Documents Tender program Drawings issued for construction

Non-Integrated IAP NED

ACTIVITY A Add progress upto start of

ACTIVITY E Add ERE and reschedule Impacted CD

ACTIVITY A Develop AS-BUILT Program and determine

ACTIVITY E Identify ERE delaying the

ACTIVITY A Remove ERE delaying the project

Identify AS-BUILT Critical Path

Extension of Time Claims 90

– Evaluation of Selected Claim

Original BOQ VO-1 VO-5 Duration Required 30-Nov-09

Original Date of Completion = 8-Jun-10

Original BOQ VO-1 VO-5 Duration Required 30-Nov-09

Original Date of Completion = 8-Jun-10

Original BOQ VO-1 VO-5 The Maximum of 30-Nov-09

Original Date of Completion = 8-Jun-10 97

3 Sundays/Weekly rest days 10 Counting from Calendar

EOT for Adverse weather based on 10-years peak rainfall 3 days

EOT for Adverse weather based on 10-years peak rainfall 13 days

• Liquidated Damages and Extensions of Time, B. Eggleston, Third Edition, United

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