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Sub-Contract Delay and Disruption

If you have an urgent delay and disruption problem about which you would like some Free Advice** please call us now on 01773 712116.

Sub-Contract Delay and Disruption

At Streetwise we are always looking to solve Specialist Sub-Contractor's problems. That includes subcontractors delay and disruption problems.

Specialist Sub-Contracting can be a tough business and it's no surprise that at some point you are going to bump into some sort of problem involving delay and disruption.

Has someone said you have delayed the works? Have they deducted liquidated damages or other costs?

If so, you need to ACT FASTclick here for immediate solutions for you or call us on 01773 712116.

We understand the delay blame game and we can work with you to eliminate or dramatically reduce your chances of becoming a victim.

How To Avoid Being Blamed For Delay

There are some key measures that you can implement now:

  • Understand your programme obligations under the contract, in particular the start date, duration and completion date.
  • If you cannot proceed with your work due to preceding trades, record the fact with an email, letter or fax, doing nothing is fatal
  • Understand the requirements for submitting applications for extensions of time, as in some circumstances you may lose your entitlement with a late application.
  • If there are other delays being incurred in regard to information or variations, record the fact with an email letter or fax
  • Take dated photographs of anything that is delaying your progress.
  • If it becomes evident that you will not complete by the completion date, you must be able to demonstrate it's not your fault and you shoul apply immediately for an extension of time.

You Need To Secure Extensions of Time To Avoid Incurring Costs!

At its simplest, events which are beyond your control, and cause you to take longer to complete than originally planned entitle you to an extension to the contract period.

The amount of time to be added to the contract period for delaying events should be calculated logically and methodically by the Contractor, and in turn if those events have delayed the Contractor, they should be dealt with upstream by the Contract Administrator, or Architect.

All of this should be done impartially and objectively.

In other words, if it comes to a dispute as to whether a fair and reasonable extension of time has been granted and the Contractor (and/or the Contract Administrator or Architect) has determined the period of that extension of time instinctively, intuitively, or under the instructions of one of the parties, that decision is likely to be overturned.

In practice what regularly happens, is that the Contractor refuses to, or fails to grant extensions of time and reacts either adversely or apathetically to you having asked!

You need to be prepared for this and not be put off by it.

Unfortunately, none of the standard forms provide any indication of the sort of information or technique upon which a logical and methodical appreciation of the factual matrix upon which an extension of time should be calculated.

Most sub-contracts will require you to identify any cause of delay or likely delay to progress, and to notify the Contractor of that delay and estimate the effect on the date for completion. Even if it doesn’t say that, it is a good discipline to adopt in any event. Similarly, for each delay event, you will have to provide all the necessary particulars demonstrating how such an effect has been calculated.

However, it does not usually say how, i.e. which extension of time assessment technique should be used to demonstrate any such delay to the date for completion.

It is important to recognise that, generally, it is only a delay or likely delay to the progress of the Works that you have to notify, but it is the extent, or knock-on effect of such event to the date for completion that the Contractor has to certify.  One of the major difficulties is that the delay in the planned timing of an activity alone gives no clue as to whether it is likely to have an effect on the date for completion.

Neither is it of any importance that an activity took longer to achieve than that shown on your (or the Contractor’s) as-planned programme.  In the end, the deciding factor is the delay event has adversely affected the date for completion.

Except in the most obvious of circumstances, proving a chain of causation where many ongoing activities are being carried out concurrently is by no means a simple exercise. Therefore, even if you provide what is required under the contract, the Contractor ad will necessarily have to do an awful amount of work to determine your entitlement.

Not surprisingly perhaps, Contractors are generally reluctant to do anything that they are not obliged to do, and you will no doubt have to overcome this obstacle one way or another!

We are all familiar with the concept of a programme, but what is not widely known is that this should preferably only be used as an aid to the planning of a project and as a monitor of current performance. Under normal circumstances it should not be used to determine contractual obligations as to time.

What has become commonplace, is the use of the programme to provide a quick and simple means for appraising delays and showing entitlement for extensions of time. Quick and simple, perhaps, but open to abuse and without further analysis, not particularly meaningful.

Since the early 1970’s the use of computers and project planning software has meant that the Critical Path Method (CPM) has developed as a tool for assessing responsibility for delay and disruption in construction disputes.

A corresponding proliferation of techniques has also evolved with increasing sophistication and ingenuity but most of these suffer from weaknesses to adequately address a number of issues such as programme float and concurrency.

Retrospective Delay Analysis Techniques

Here is a very useful analysis of retrospective delay analysis for Specialist Contractors, reproduced with the kind permission of Alway associates.

In the Society of Construction Law Delay and Disruption Protocol, four retrospective delay analysis techniques are referred to, as follows;

1. As-Planned v As-Built.

2. Impacted As-Planned.

3. Collapsed As-Built.

4. Time Impact Analysis.

A brief analysis of each of these delay analysis techniques is given below.

As-Planned v As-Built

What is the basis of the method?

This method compares the duration of an As-planned activity (or the duration of all As-planned activities) on the original programme with the As-built duration for that same activity (or those same activities) on the As-built programme.

How is the method used to assess Extension of Time entitlement?

The difference in time between the duration on the As-built programme and the duration on the As-planned programme is taken as the period of delay to which a Contractor is entitled to an Extension of Time as a result of an excusable delay event (or delay events) (otherwise known as Employer delay events).

What is needed to make this method work effectively?

The activity or activities need to be clearly on the critical path.

The delay event or events need to be clearly identified.

There should be no other delay events to the activities in question that are non-excusable delay events (otherwise known as Contractor delay events).

What are the strengths of this method?

It is inexpensive to use.

It is simple to use and understand.

What are the weaknesses of this method?

Because no detailed analysis is possible it can only be used on the most simple of construction projects.

It cannot deal with (a) the issue of concurrent or parallel delays, (b) the matter of consequential delay or re-sequencing of works, or © the effects of mitigation and/or acceleration measures.

Impacted As-Planned

What is the basis of the method?

This method adds an identified excusable delay event (or events), either as a separate activity (or activities), or onto the duration of an existing activity (or activities), into the As-planned programme. The duration of the activity is derived (where possible) from the resource allowances on the As-planned programme.

How is the method used to assess Extension of Time entitlement?

The As-planned programme with the delay event (or events) incorporated is then re-run, to show a resultant revised Completion Date on what is then called the Impacted As-planned programme.

The period between the Completion Date shown on the As-planned programme and that shown on the Impacted As-planned programme, is taken as being the period of delay to which a Contractor is entitled to an Extension of Time as a result of an excusable delay event (or events) (otherwise known as Employer delay events).

What is needed to make this method work effectively?

A simple contract or, in the case of more complex projects, delay events that occur only over limited periods or where the As-planned programme has been affected by a limited number of delays only.

An accurate and realistic As-planned programme.

Sufficient details on the As-planned programme to allow a reasonable estimate to be made of the resources necessary (based upon the allowances included in the As-planned programme) to assess the time to be added for the task resulting from the excusable delay event (or events).

What are the strengths of this method?

As-built information is not needed at all.

As the As-planned Impacted programme rarely bears any relationship to what actually happened on site, it can be used to illustrate areas where the Contractor took acceleration measures (or conversely where the Contractor’s actions were deleterious).

What are the weaknesses of this method?

It is a very theoretical method.

It relies heavily on the As-planned programme, and can show misleading results if the As-planned programme is incorrect (either in terms of durations for activities or in respect of logic linking).

As the As-planned Impacted programme rarely bears any relationship to what actually happened on site, it is difficult to use the results to ascertain a Contractor's actual extension of time entitlement.

If records are available for an As-built programme , then it is unlikely that a tribunal would accept this theoretical method as being a basis for assessing a Contractor’s Extension of Time entitlement.

Collapsed As-Built (also known as 'As-Built But For' method)

What is the basis of the method?

This method involves removing from the As-built programme identified excusable delays to show what the Completion Date would have been if those delay events had not occurred.

How is the method used to assess Extension of Time entitlement?

The period between the Completion Date on the As-built programme and the Completion Date on the Collapsed As-built programme, is taken as being the period of delay to which a Contractor is entitled to an Extension of Time as a result of an excusable delay event (or events) (otherwise known as Employer delay events).

What is needed to make this method work?

An accurate As-built programme.

Clear identification of delay events.

What are the strengths of this method?

As this is based upon the As-built programme, there is certainty that the outcome coincides with the events on site.

It is easy to understand.

What are the weaknesses of this method?

The removal of sometimes arbitrarily established delays from the As-built programme can conceal the true effect of the Contractor’s delays, and cannot allow for (a) the issue of concurrent or parallel delays, (b) the matter of the re-sequnecing of the works, or © the effects of mitigation and/or acceleration measures.

The re-creation of a critical path following the removal of delay events may not be the same as the critical path that actually existed at the time of the delay event since the process involves the re-construction of the as-built logic.

In respect of both of the above items, criticisms may be made of the subjective approach that must be used.

Time Impact Analysis

Time impact analysis can be considered under two heads, i.e. Window Analysis (also known as Time Slice analysis) and Snapshot analysis.

As Snapshot Analysis is used primarily only in the event of contemporaneous Extension of Time awards, we will not deal with this method in this Article, and we will only deal with the Window Analysis method.

What is the basis of the method?

Window analysis is based on the analysis of the effects of delay events over the entire length of a project by looking at the events which have affected progress within ‘windows’ of the contract period sequentially.

The duration of each ‘window’ is not pre-determined, but is frequently taken as being one month.

At the end of each ‘window’ the As-planned programme is updated to take account of any delaying inefficiency which is the Contractor’s risk, any necessary logic or duration revisions because of mitigation measures undertaken, together with all excusable and/or compensable events during the period since the last update.

The closing of a window in this way forms an As-built programme at the end of that window which effectively becomes the As-planned programme for the next window in sequence.

How is the method used to assess Extension of Time entitlement?

At the end of each window a projection is made to the Completion Date. At the end of the last window a final revised Completion Date is provided which, when compared to the original As-planned Completion Date, indicates the Extension of Time entitlement of the Contractor.

What is needed to make this method work effectively?

When being used retrospectively, accurate progress information at the time of the windows must be available.

An accurate As-planned programme that reflects all of the activities that should have been included within the original programme.

What are the strengths of this method?

This method is the method recommended within the Society of Construction Law Delay and Disruption Protocol.

In each window there are relatively few activities to be analysed (as compared to the over-all programme) and therefore the delay analysis is easier.

It is the best technique for determining the amount of Extension of Time that the Contractor should have been granted at the time that an excusable risk occurred.

What are the weaknesses of this method?

Accurate progress information at the time of the windows must be available, otherwise the analysis cannot be properly or accurately completed.

The less accurate the programme and progress information available is, the more likely that results will be obtained that are clearly inaccurate, that will require to be amended by manipulating any obvious errors in the original As-planned programme.

Conclusion

There does seem to be some unnecessary confusion regarding the various delay analysis techniques. They are all relatively simple to understand in principle, but (in some cases) are perhaps rather more difficult to operate in practice.

As noted above, each of the techniques has its own strengths and weaknesses, but in reality the delay analysis that is used is often not dictated by the appropriateness of the technique itself but by factors such as, the relevant conditions of contract, the nature of the causative events, the value of the dispute, the time available, the records available, the programme information available, and the programmer’s skill level and familiarity with the project.

Urgent Sub-Contract Delay and Disruption Problem?

If all this seems somewhat confusing, then don’t be put off. There is a lot of nonsense talked about extensions of time and delay analysis. So, our best advice is to give us a call and talk it over with us.

Our initial advice is free!** Call us now on 01773 712116.

You will be pleased to know that you can also find a wealth of information on Streetwisesubbie.com about avoiding delay and disruption problems.

Please click here to go to the Contractual section.

If you already have a problem with a Contractor or Client regarding delay and disruption and you need help to find a solution please check out the Dispute Resolution Section for information that may help you to resolve the situation.

Please click here to go to the Dispute Resolution section.

If you simply haven't got time to look or have any other problem whatsoever and you can't find what you are looking for, then why not use the Ask Streetwise or Streetwise Confidential feature on this site to ask our Virtual Team of experts for help on delay and disruption?

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