| Yes, the boys have done good (Building, 20 December 2002).
Congratulations to the drafting team of the SCL’s Delay
and Disruption Protocol. They have tackled and ‘put
their money where their mouth is’ in a document that
addresses the thorny area of delay and disruption. The gang
of 11 (the drafting team) have used three tests as the criteria
for judging the outcome of their endeavours and they consider
that their Protocol passes these tests with flying colours.
Does it?
Test one: “Is it clear? (Does it indeed bring
clarity to the legal grey areas?)”.
The Protocol covers three phases; namely, (i) pre-contract:
providing model clauses for inclusion in specifications
and contract documentation (ii) post-contract: guidelines
for dealing with extensions of time during the course of
the project, and (iii) disputes: guidelines for dealing
with disputed extensions of time after completion of the
project.
In principle, the model clauses should be adopted by the
industry; for if followed they will ensure that programmes
and record keeping will improve, thereby reducing areas
of conflict in the resolution of time-related disputes.
I do have reservations with the guidelines for dealing with
extensions, and disputed extensions of time and these are
expressed under test two below.
Test two: “Is it comprehensive? (Does it
assist you all the way from the change event to determination
of time and money entitlement)”.
This is where I part company with the gang of 11. They have
put their money on the ‘time impact analysis’
method of assessment using a ‘first past the post’
approach, (i.e. sequential analysis of individual delay
events).
The time impact analysis’ methodology is one form
of assessment that could be adopted, but as the ‘gang
of 11’ quite rightly point out, it relies on a credible
as-planned programme in network format and good as-built
records. More often than not, this information is not available
in the majority of disputes, and making good these deficiencies
makes the results of the analysis very subjective. In essence
this method uses the contractor’s intentions and sequence
in his as-planned programme (usually prepared on day 1 of
the project), and his as-built records which are derived
from his actual sequence of working, i.e. original thinking
and what actually happened. Apples and oranges. These are
then fed into the computer, and using the contractor’s
as-planned programme sequence and work durations for the
remaining works, hey presto – an extension of time
is mathematically calculated. Not only do we have apples
and oranges put pears as well!
A further major flaw with this methodology is that whilst
calculating the likely impact of employer caused delays,
it does not take into account contractor caused delays.
For example, whilst calculating the effect of, let’s
say, an employer’s design change on mechanical ductwork,
what about the affect of the contractor’s late submission
for approval of his mechanical subcontractor which is ongoing
and partly concurrent with the employer’s design change.
Another flaw is that future activities are not adjusted
to take into account the contractor’s actual progress.
Again, for example, his bricklayers may only be laying bricks
at an average of 60 number per hour against a planned rate
of 100 per hour.
In other words “what’s sauce for the goose (should
be) sauce for the gander”.
Further, the first past the post approach, analyses events
in sequential date order. What happens if two events, one
employer responsibility and one contractor responsibility,
occur on the same day? Is the one that happened at 8.30
am analysed before the one that occurred at 10.30? What
if the earlier one take up the entire available programme
float so that 2 hours later there is no float for the second
event?
Test three: “Is it, on the whole, fair?”.
No, mainly for the reasons I give in relation to test two.
I also consider that the Protocol should give more weight
to other methods of analysis, such as ‘collapsed as-built’
and ‘windows technique’. These are described
sparsely by the ‘gang of 11’, but cast aside
in favour of the ‘time impact analysis’ method.
However, as I said at the start of this article; the boys
have done good in tackling the thorny area of delay and
disruption, but greater consideration should be given to
other methods of analysis and the shortcomings of ‘time
impact analysis’ methodology and ‘first past
the post’ approach should be addressed.
I look forward to the SCL taking onboard these views and
those of others when they publish their first update of
the Protocol.
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