In the previous post we examined the key elements of a successful claim and established 4 main requirements, these being:
Additionally we examined the role of the Programme, its function and how it is used in assessing delays.
In effect we can say the following about the Contract (Baseline) Programme, it is:
• The intentions of the Parties at the time of contract
• Shows the intended time and sequence of how the works are intended to progress
• Shows a clear critical path to completion
• Shows dates when the Employer’s input is required, linked to the critical path
As the Programme should be updated periodically in a claim situation the Programme will be:
• The Yardstick against which to measure the effect of delays
• Should be based on the works included in the contract at the time the contract was entered into.
• Should be revised to take into account Extensions of Time (EoT) or re-sequencing of the works.
The Principles of Delay Analysis
It must be borne in mind that a delay does not automatically lead to an EoT and generally “float” which is shown in the programme will be critical, particularly around who “owns” the float.
On most projects the project owns the float and this float will be used up first, in the event of any delays. Only after the float has been used up can the completion date be affected by any subsequent delays. It must also be remembered that a delay may occur that is not on the critical path of the project works.
When a delay takes place the first activity that should be undertaken is a delay analysis, this is to establish the effect of the delay event. For the Contractor or Sub-Contractor to establish an entitlement to an EoT, it is necessary to link the cause with the effect, in other words to establish that an Employer caused delay has actually affected the completion date.
There are two commonly used delay analysis, these being:
• Impacted As-Planned Delay Analysis
• Time Impact Analysis
We will now investigate both.
Impacted As-Planned Delay Analysis
This is the most commonly used delay analysis and is particularly useful where no contemporaneous records are available or are inconclusive and incomplete to demonstrate a delay. Generally employer cause delays are added to the Baseline Programme (See Typical Baseline Programme with float below) and the effect of this delay on the project Completion Date is assessed. A short coming of this delay analysis is that it is unable to identify concurrency, sequencing, mitigation or acceleration.
Under Impacted As-Planned Delay Analysis the delays should be impacted in a chronological order and the delays effect on the Completion Date. It is possible that a delay could crystallise that is not on the critical path of the programme, but it should be included as subsequent actions could result in this delay having an impact at a later stage.
In very general terms if the delay, once its impact has been assessed and included on the updated Baseline Programme does not extend the time required for completion, then the analysis demonstrates that an EoT is not warranted. However if the analysis demonstrates that the Completion Date has moved out into the future, than an EoT is warranted. (See Typical Impact As Planned Programme which has 4 delay events included)
Again in general terms if the Contractor completes his works earlier than the updated Baseline Programme (assuming there are no further delays) then this demonstrates that the Contractor has mitigated some of the delays. However if the delay has been properly analysed and its impact included in the updated Baseline Programme and the Contractor completes later than this updated programme, this demonstrates contractor caused delays which could leave the Contractor facing Liquidated and Ascertained Damages (LAD’s).
Time Impact Analysis
Time Impact Analysis is a recommended and accepted practice to be utilised for delay analysis. For Time Impact Analysis to be undertaken it is key that the Baseline Programme is updated on a regular and consistent basis to that when a delay event crystallises this can be analysed promptly and consecutively so that its impact can be analysed.
The Baseline Programme (as updated from time to time) should be brought fully up to date to the point immediately prior to the delay event taking place. This delay should then be evaluated and its impact inserted into the programme. (See Time Impact Analysis Programme which at the period update showed a 3 day delay and its impact analysed)
In simple terms the difference between the completion date predicted on the Baseline Programme, or last updated Programme prior to the delay event and the completion date predicted on the impacted update will demonstrate the EoT due to the delay event.