DIGEST | ISSUE 26An example of a well-structurednarrative is set out below:1. INTRODUCTIONThe introduction section shouldcontain a brief description of theevent, and the relevant facts thatclearly describe the event that hasoccurred or is occurring.2. CHRONOLOGYThe chronology establishes thefacts of the event in a detailedmanner. It should identify the startand end date of the event, or if theevent is ongoing, it should statethe same. It can be challenging tofind a balance between ‘too much’and ‘too little’ detail. In terms of‘too much’ detail, this can occurwhere the chronology is presentedin numerous pages of narrative,and in an unstructured mannerbecoming complex and confusingthe recipient. In the case of thechronology containing ‘too little’detail, the contractor can be at riskof failing to relay the facts of theevent accurately.3. BASIS OF ENTITLEMENTEstablishing the basis ofentitlement will depend on theprovisions of the contract. Acommon mistake in contractorclaims is referencing incorrectclause(s) when attempting toestablish entitlement, leading torejection of the claim.It is important for a contractor tounderstand the contract provisionsrelevant to the event to correctlyestablish its entitlement. By wayof example, for the FIDIC suite ofcontracts, a common error by thecontractor is where the contractorattempts to establish entitlementunder Clause 20.1 [ContractorClaims].1 This clause does notentitle the contractor to an EOT,rather it is the mechanism used1. Sub-Clause 20.1 of the Conditionsof Contract for Construction (FirstEd. 1999) For Building and Engineering Works designed by the Employer.for submitting the claim, whichalso contains specific provisionsand requirements that must beadhered to by the contractor aspart of the claim submissionprocess. The entitlement, fortime, is actually established underClause 8.4 [Extension of Time forCompletion].2THE EFFECTThe effect of a delay event mayresult in delays to the projectcompletion date and thereafterthe contractor incurring additionalcosts. The issue of cost recoveryis not tackled here but will be thetopic of a future article.There are several methods ofdelay analysis that can be used todemonstrate the effect of a delayevent on the project completiondate. In some cases, the contractmay prescribe the method of delayanalysis to be undertaken andthe contractor may either applythe required methodology or givevalid reasons for an alternativemethod of analysis being selected.Varying factors may also influencethe choice of the most suitabledelay analysis method such asthe availability and quality of thedata, records and information,the availability of the progressupdate programmes, as well asconsidering the nature, extent, andtiming of the event(s).Many leading industry publicationssuch as the Society of ConstructionLaw (SCL) Delay and DisruptionProtocol3 and the AmericanAssociation of Cost Engineer’s(AACE) recommended practiceNo.29R-034 provide guidance onappropriate methods of delayanalysis.2. Sub-Clause 8.4 of the Conditions ofContract for Construction (First Ed.1999) For Building and EngineeringWorks designed by the Employer.3. Society of Construction Law Delayand Disruption Protocol – 2nd edition– February 2017 – Guidance Part B:Guidance on Core Principals.Choosing the most suitable delayanalysis methodology will dependon the details provided withinthe contract and / or the level ofinformation available. However,some important elements ofconducting a delay analysisare discussed here, by way ofillustration.1. There must be a programme tomeasure the impact of the event,and evidence ideally that it is anapproved programme under thecontract.2. The analysis must firstly identifythe critical path of the programme,before then demonstrating theimpact of the event on the criticalpath of the programme.3. The impact of the delay may bedetermined either by prospectiveor retrospective delay analysis.Prospective delay analysisidentifies the likely effect of anongoing event on the time forcompletion where the event andits actual impact have not ended.Retrospective delay analysisidentifies the actual effect onthe time for completion wherethe event and its impact haveconcluded.4. Consideration should be givenas to whether the cause mustbe identified before establishingthe impact of the event (CauseEffect), or where the effect must beidentified before establishing thecause (Effect-Cause).5. Cause-Effect – Certain methodsof delay analysis will begin with theevent (the cause) and then look toestablish the impact (the effect).This method is generally adoptedwhere the event has occurred,but the works are ongoing andthe overall impact of the event isongoing, thereby avoiding a ‘waitand see’ approach.4. American Association of CostEngineer’s recommended practiceNo.29R-03 dated 25 April 2011,Section 3 ‘Method Implementation’31
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