What Can You Legally Do When Construction Takes Too Long?

By using the expertise he has gained over 50 years’ experience, firstly involved with on-site works, followed by managerial roles in construction, both in this country and overseas, Roger Gibson is a recognised and qualified Expert in the engineering and construction fields.

Roger states: “I think it is important for a ‘party’ involved in a delay and/or disruption construction claim to use an ‘expert’ who is experienced in this type of claim, and additionally ‘he’ is recognised as an ‘Expert’ by the Arbitrator, or Judiciary of the governing body.”

He speaks more below about construction disputes.

How important is a carefully constructed extension of time (‘EOT’) submission on a construction/engineering project?

The standard forms of contract set out a number of possible contingencies, the risk of which is to be borne not by the contractor but by the employer. For example, the Joint Contracts Tribunal (JCT) form, details relevant events which are beyond the control of the contractor.  If the occurrence of any of those contingencies occur so as to cause the work to take longer to complete then, because those contingencies are not at the contractor’s risk, more time must be added to the contract period.  Without provisions for more time to be granted, for example, for the effect on the contract period for late issue of information, time would become at large. This means that the contractor would have to complete, not within the contract period, but within a reasonable time – whatever that happened to be.  Furthermore, the employer would not be able to recover liquidated damages for any overrun of the contract period.  This is why there are provisions for time to be extended in the event that the contract period is adversely affected by those risks that are borne by the employer.

The amount of time to be added to the contract period for employer responsible delaying events which have caused delay to the completion date, should be calculated logically and methodically by the contract administrator, or architect, and he must form his judgement impartially and objectively.  This means that if it comes to a dispute as to whether a fair and reasonable extension of time has been granted and the contract administrator has determined the period of that extension of time instinctively, intuitively, or under the instructions of one of the parties, his decision is likely to be overturned.

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

Arising out of its role as an aid to the planning of a project and as a monitor of current performance, it was a short step to the programme being used to provide a quick and simple means for appraising delays and showing entitlement for extensions of time.  By the early 1970’s, the use of computers and project planning software meant that the Critical Path Method (CPM) was developed as a tool for assessing responsibility in delay and disruption construction disputes.

Since then there has been a proliferation of techniques which have evolved with increasing sophistication and ingenuity, but most of these suffer from weaknesses to adequately address a number of issues relating to the use of CPM for extension of time submissions and delay claims, such as programme float and concurrency.

The recognised EOT assessment techniques can be categorised into the following groups:

• ‘Impressionistic’;
• ‘Simplistic’; these are static models and do not provide the insights into impacts and relationships provided by critical path analysis methods.
• ‘Prospective Analysis’; these techniques use as planned programmes and essentially project the likely delay an event will cause.
• ‘Retrospective Analysis’; these techniques use as built programmes and establish the actual delay an event caused.

However, the critical importance of reliable documentation and records in establishing EOT entitlements cannot be over-emphasised, whatever the technique that is ultimately adopted.

What challenges have helped push the boundaries of your expertise in this field?

The ‘challenges’ to the Expert have always been,

• A thorough understanding of what constituted ‘the project’.
• How the Contractor planned to carry our ‘the works’ and achieve completion by the required date, i.e. ‘the detailed plan’.
• How ‘the works’ were actually carried out, i.e. ‘the detailed performance’.
• What caused items (ii) and (iii) to differ, by how much, the causes, and which party was responsible.