Driver Trett Digest Issue 26 - Flipbook - Page 31
DIGEST | ISSUE 26
An example of a well-structured
narrative is set out below:
1. INTRODUCTION
The introduction section should
contain a brief description of the
event, and the relevant facts that
clearly describe the event that has
occurred or is occurring.
2. CHRONOLOGY
The chronology establishes the
facts of the event in a detailed
manner. It should identify the start
and end date of the event, or if the
event is ongoing, it should state
the same. It can be challenging to
find a balance between ‘too much’
and ‘too little’ detail. In terms of
‘too much’ detail, this can occur
where the chronology is presented
in numerous pages of narrative,
and in an unstructured manner
becoming complex and confusing
the recipient. In the case of the
chronology containing ‘too little’
detail, the contractor can be at risk
of failing to relay the facts of the
event accurately.
3. BASIS OF ENTITLEMENT
Establishing the basis of
entitlement will depend on the
provisions of the contract. A
common mistake in contractor
claims is referencing incorrect
clause(s) when attempting to
establish entitlement, leading to
rejection of the claim.
It is important for a contractor to
understand the contract provisions
relevant to the event to correctly
establish its entitlement. By way
of example, for the FIDIC suite of
contracts, a common error by the
contractor is where the contractor
attempts to establish entitlement
under Clause 20.1 [Contractor
Claims].1 This clause does not
entitle the contractor to an EOT,
rather it is the mechanism used
1. Sub-Clause 20.1 of the Conditions
of Contract for Construction (First
Ed. 1999) For Building and Engineering Works designed by the Employer.
for submitting the claim, which
also contains specific provisions
and requirements that must be
adhered to by the contractor as
part of the claim submission
process. The entitlement, for
time, is actually established under
Clause 8.4 [Extension of Time for
Completion].2
THE EFFECT
The effect of a delay event may
result in delays to the project
completion date and thereafter
the contractor incurring additional
costs. The issue of cost recovery
is not tackled here but will be the
topic of a future article.
There are several methods of
delay analysis that can be used to
demonstrate the effect of a delay
event on the project completion
date. In some cases, the contract
may prescribe the method of delay
analysis to be undertaken and
the contractor may either apply
the required methodology or give
valid reasons for an alternative
method of analysis being selected.
Varying factors may also influence
the choice of the most suitable
delay analysis method such as
the availability and quality of the
data, records and information,
the availability of the progress
update programmes, as well as
considering the nature, extent, and
timing of the event(s).
Many leading industry publications
such as the Society of Construction
Law (SCL) Delay and Disruption
Protocol3 and the American
Association of Cost Engineer’s
(AACE) recommended practice
No.29R-034 provide guidance on
appropriate methods of delay
analysis.
2. Sub-Clause 8.4 of the Conditions of
Contract for Construction (First Ed.
1999) For Building and Engineering
Works designed by the Employer.
3. Society of Construction Law Delay
and Disruption Protocol – 2nd edition
– February 2017 – Guidance Part B:
Guidance on Core Principals.
Choosing the most suitable delay
analysis methodology will depend
on the details provided within
the contract and / or the level of
information available. However,
some important elements of
conducting a delay analysis
are discussed here, by way of
illustration.
1. There must be a programme to
measure the impact of the event,
and evidence ideally that it is an
approved programme under the
contract.
2. The analysis must firstly identify
the critical path of the programme,
before then demonstrating the
impact of the event on the critical
path of the programme.
3. The impact of the delay may be
determined either by prospective
or retrospective delay analysis.
Prospective delay analysis
identifies the likely effect of an
ongoing event on the time for
completion where the event and
its actual impact have not ended.
Retrospective delay analysis
identifies the actual effect on
the time for completion where
the event and its impact have
concluded.
4. Consideration should be given
as to whether the cause must
be identified before establishing
the impact of the event (CauseEffect), or where the effect must be
identified before establishing the
cause (Effect-Cause).
5. Cause-Effect – Certain methods
of delay analysis will begin with the
event (the cause) and then look to
establish the impact (the effect).
This method is generally adopted
where the event has occurred,
but the works are ongoing and
the overall impact of the event is
ongoing, thereby avoiding a ‘wait
and see’ approach.
4. American Association of Cost
Engineer’s recommended practice
No.29R-03 dated 25 April 2011,
Section 3 ‘Method Implementation’
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