THE EFFECT OF TIME AT LARGE AND WAIVER OF THE COMPLETION DATE ON

CPM SCHEDULE DELAY ANALYSIS

Robert M. D’Onofrio, P.E. 1

I. SCL Protocol Reversal of Position in Second Edition ........................................................................... 1

II. Example Scenario ................................................................................................................................ 3
III. Time at large and Waiver of the Completion Date ............................................................................. 5
IV. Offsetting delay and delays after the expiration of contract time ..................................................... 7
V. Reconciliation with CPM scheduling ................................................................................................. 12

I. SCL Protocol Reversal of Position in Second Edition

From 2002 through 2016, the Society of Construction Law (SCL) Delay and Disruption Protocol (Protocol)
recommended granting a time extension for employer/owner delay that was critical to the contract
completion date, even when the delay did not extend the longest path of the project due to prior
contractor delay:

the Protocol's position on concurrency prevents an Employer or CA taking advantage

of a Contractor's delay after the contract completion date to issue instructions and
make changes without having to give an EOT. It cannot be correct that an Employer
should be able to charge the Contractor with COs at a time when the Contractor is
carrying out extra work ordered by the Employer or CA. 2

The Protocol even included an explicit graphic explaining its recommendation that when the longest
path was delayed due to a prior contractor risk event, an additional employer delay on an alternate
lesser path that exceeded the contract completion date, but not the longest path should result in an
excusable, non-compensable time extension for the duration it extends past the contract completion
date:

1
Robert M. D’Onofrio, P.E. is a licensed Professional Engineer at Capital Project Management, Inc. (CPMI) in New
York, NY. He is co-author of Construction Schedule Delays, a comprehensive 1,100 page treatise on schedule delay
and disruption published by Thomson Reuters and available on Westlaw. Mr. D’Onofrio holds B.S. and M.Eng.
degrees in Civil Engineering from Cornell University.
2
U.K. Society of Construction Law Delay and Disruption Protocol, 1.4.13.

1
However, in February 2017, the SCL put out a Second Edition of the Delay and Disruption Protocol
(Protocol 2nd Edition). On this topic, the Protocol 2nd edition performed a full 180 degree reversal from
its prior recommendation, now recommending that in the same exact situation, no time extension
should be given, resulting in full assessment of liquidated damages. The Protocol 2nd edition enumerates
the two options with a hypothetical scenario:

10.7 From a legal perspective, there are two competing views as to whether an
Employer Delay is an effective cause of Delay to Completion where it occurs after the
commencement of the Contractor Delay to Completion but continues in parallel with
the Contractor Delay. This can be illustrated by the following example: a Contractor
Risk Event will result in five weeks Contractor Delay to Completion, delaying the
contract completion date from 21 January to 25 February. Independently and a few
weeks later, a variation is instructed on behalf of the Employer which, in the absence
of the preceding Contractor Delay to Completion, would result in Employer Delay to
Completion from 1 February to 14 February. 3

The Protocol 2nd Edition then outlines the viewpoint that both are critical to the contract
completion date espoused in its first edition, noting “On one view, the two events are both
effective causes of Delay to Completion for the two week period from 1 to 14 February

3
SCL Protocol 2nd Edition, Guidance Part B: Guidance on Core Principles, 10.7

2
because they each would have caused Delay to Completion in the absence of the other … if the
failure to complete the works is due in part to the fault of both the Employer and the
Contractor, liquidated damages will not be payable.” 4 The Protocol 2nd Edition next outlines
the opposite position “On the other view, the Employer Delay will not result in the works being
completed later than would otherwise have been the case because the works were already
going to be delayed by a greater period because of the Contractor Delay to Completion.” 5

Finally, the Protocol 2nd Edition espouses the reverse position from its predecessor, concluding:

The Protocol recommends the latter of these two views, i.e. that where an EOT
application relating to the situation referred to in paragraph 10.7 above is being
assessed, the Employer Risk Event should be seen as not causing Delay to
Completion (and therefore there is no concurrency). Concurrent delay only arises
where the Employer Risk Event is shown to have caused Delay to completion or, in
other words, caused critical delay (i.e. it is on the longest path) to completion. The
Protocol cautions that this recommendation would have to be re-considered were an
appeal court to take a different approach to this issue. 6

In other words, the Protocol 2nd Edition concludes that as long as the projected completion date is not
further extended, there is no extension of time, regardless of the project status in relation to the
required contract completion date.

II. Example Scenario

An example fact pattern outlining this issue is shown in the graphic below. The employer or owner signs
a contract with a contractor to build a new datacentre. The work consists of two relatively independent
paths of work, Path A through the datacentre construction, and Path B through the subsidiary building,
which has to tie back in to the datacentre prior to achieving substantial completion. The contractor has
an 18 month period to perform the work, resulting in a contract completion date at the end of month
18. In the baseline schedule, below, there are two paths of work along a timescale by month across the
top. Path B has six months of float, while the critical path runs through Path A work. The required
completion date is reflected by a diamond milestone.

After the start of the project, between months 6 and 11, the contractor fails to progress work on either
path of work. By status date as of month 12, Path A is projected to complete six months late, at the end
of month 24. Meanwhile, all float on Path B has been absorbed, and in order to finish the project by the

4
SCL Protocol 2nd Edition, Guidance Part B: Guidance on Core Principles, 10.8
5
SCL Protocol 2nd Edition, Guidance Part B: Guidance on Core Principles, 10.9
6
SCL Protocol 2nd Edition, Guidance Part B: Guidance on Core Principles, 10.10

3
contract completion date, Path B would not be able to be further delayed. The status of the project as of
month 12 is reflected in the schedule update as follows:

However, at the start of month 12, the owner makes a major design change to the project affecting the
subsidiary building, and directs the contractor to perform the changed work. The effect of this new
instruction is that Path B will require an additional six months of work. The added work does not extend
the projected completion date of the work, because due to the contractor’s earlier delay, the current
schedule was projecting completion at the end of month 24 prior to the change. The Path B subsidiary
building still connects to the Path A datacentre just prior to substantial completion of the project.
However, the added work would independently prevent completion of the work by the contract
completion date, which was still required at the end of month 18. Because the schedule is constrained
to the contract completion date, the float on Path B goes from 0 months of float before the change to -6
months of float after the change.

The primary question under consideration is whether or not the owner owes the contractor a time
extension of six months for the added work, or whether it does not owe a time extension and can assess
the six months of liquidated damages for late completion if the project finishes as scheduled.

From a technical critical path method (CPM) scheduling perspective, when there is a required contract
completion date, the schedule should be constrained to that date in the schedule software. 7 Because
the schedule is constrained to the contract completion date, the Path B work was critical, with 0 float,
even though it was not on the longest path, and was delayed to -6 months of float as a result of the
added work. However, if you ignore which activities are critical and only look at the longest path (Path
A), there was no additional delay to the scheduled completion date of the project.

7
See generally, §2:10 Float, Dale and D’Onofrio, Construction Schedule Delays (Thomson Reuters 2016).

4
Under the SCL Protocol 2002-2016 guidance, the Protocol would have recommended granting a six
month non-compensable extension of time in this scenario, so that the owner could not assess any
liquidated damages.

By contrast, the SCL Protocol 2nd Edition guidance recommends not granting any time extension for the
additional work, because the added work never extended the projected completion date of the work.
Under the SCL Protocol 2nd Edition guidance in this scenario, the owner could assess six months of
liquidated damages.

III. Time at large and Waiver of the Completion Date

The prevention principle is in concept that the promisee cannot insist upon the performance of an
obligation which the promisee has prevented the promisor from performing. 8 In Multiplex v Honeywell,
Jackson J summarized its application to construction contracts:

In the field of construction law, one consequence of the prevention principle is that
the employer cannot hold the contractor to a specified completion date, if the
employer has by act or omission prevented the contractor from completing by that
date. Instead, time becomes at large and the obligation to complete by the specified
date is replaced by an implied obligation to complete within a reasonable time. 9

Jackson J also summarized the long legal history of the concept, noting, amongst other cases, that in
Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111, Salmon LJ said:

No doubt if the extension of time clause provided for a postponement of the

completion date on account of delay caused by some breach or fault on the part of
the employer, the position would be different. This would mean that the parties had
intended that the employer could recover liquidated damages notwithstanding that
he was partly to blame for the failure to achieve the completion date. In such a case
the architect would extend the date for completion, and the contractor would then
be liable to pay liquidated damages for delay as from the extended completion date.
The liquidated damages and extension of time clauses in printed forms of contract
must be construed strictly contra proferentem. If the employer wishes to recover
liquidated damages for failure by the contractors to complete on time in spite of the
fact that some of the delay is due to the employers' own fault or breach of contract,
then the extension of time clause should provide, expressly or by necessary
inference, for an extension on account of such a fault or breach on the part of the
employer. I am unable to spell any such provision out of clause 23 of the contract in
the present case.

8
See, e.g., Holme v Guppy (1838) 3 M & W 387; Dodd v Churton [1897] 1 QB 562; Westwood v Secretary of State
for India 11 WR 61; 7 LT (NS) 736; Peak Construction (Liverpool) Ltd v McKinney Foundations Ltd (1970) 1 BLR 111;
Wells v Army and Navy Co-operative Society Ltd (1902) 86 LTR 764 ; Amalgamated Building Contractors Ltd v
Waltham Holy Cross Urban District Council [1952] 2 All ER 452; Trollope & Colls Ltd v North West Metropolitan
Regional Hospital Board [1973] 1 WLR 601.
9
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007] EWHC 447 (TCC)

5
As such, the remedy for any breach, such as added work by the employer, is that at a minimum the
contractor would be entitled to an extension of time, and at a maximum cannot claim any penalty or
liquidated damages for failure to timely complete within the contractual time period. In Dodd v Churton,
Lord Esher MR said:

a well recognised rule has been established in cases of this kind, beginning with
Holme v Guppy, to the effect that, if the building owner has ordered extra work
beyond that specified by the original contract which has necessarily increased the
time requisite for finishing the work, he is thereby disentitled to claim the penalties
for non-completion provided by the contract. 10

The equivalent concept to “Time At Large” in the United States is a concept called “Waiver of the
Completion Date.” 11

Waiver of the completion date has been articulated as an owner’s continuing to accept work and direct
changes after the expiration of contract time may waive the completion date provision of the contract
and the subsequent right to terminate for failure to timely perform. The U.S. court of claims described
the concept as:

Where the Government elects to permit a delinquent contractor to continue

performance past a due date, it surrenders its alternative and inconsistent right
under the Default clause to terminate, assuming the contractor has not abandoned
performance and a reasonable time has expired for a termination notice to be given.
This is popularly if inaccurately referred to as a “waiver” of the right to terminate.
The election is sometimes express, but more often is to be inferred from the conduct
of the non-defaulting party. The determination of what conduct constitutes such an
election is more conjectural than to prescribe the proper method of effecting a valid
termination once the election has occurred. 12

When waiver of the completion date is found, contract performance reverts to completion “within a
reasonable time,” as if there were no required completion date. 13 In those cases, an owner is typically
prevented from assessing liquidated damages, and a contractor may likewise be unable to recover
extended delay costs. For example, the 11th Circuit Court of Appeals explained the issue as:

RDP allowed the substantial completion date of February 28, 2000, to pass without
setting a new deadline and continued issuing change orders and construction change
directives requiring Clark to perform additional work. RDP's conduct in issuing

10
Dodd v Churton [1897] 1 QB 562
11
See, e.g., §3:16 Waiver of completion, Dale and D’Onofrio, Construction Schedule Delays, (Thomson Reuters
2016).
12
DeVito v. U.S., 188 Ct. Cl. 979, 990, 413 F.2d 1147 (1969)
13
See, e.g., Madden Phillips Const., Inc. v. GGAT Development Corp., 315 S.W.3d 800 (Tenn. Ct. App. 2009)
(”Madden Phillips owed GGAT a duty to complete the project within a reasonable time regardless of whether the
contract contained a date for completion. This Court has previously recognized that a party to a contract who
allows an obligor to continue performance beyond an agreed date for completion may not terminate the obligor
for such failure, but may nonetheless require the obligor to complete performance within a reasonable time. If
there is no agreed date for completion, courts may imply a reasonable time for performance.” Citations omitted.).

6
 hundreds of change orders and construction change directives after expiration of the
substantial completion date of February 28, 2000, constituted waiver of the “time is
of the essence” provision of the contract. In addition, RDP failed to set a new
substantial completion date, thus it failed to reserve its right to enforce the
liquidated damages provision for any date after February 28, 2000. 14

In another case, the Minnesota court of appeals similarly found that ordering change orders after the
expiration of contract time without granting a time extension resulted in waiver of the completion date,
and with that waiver the owner lost the right to assess liquidated damages:

As the district court stated, by the Hospital action of asking for extras, knowing that
completion of such would run beyond the completion date of the contract, and
giving some change orders after [that] date * * *, they had waived their right to
enforce the completion date and the resulting retention of monies for failure to
complete on time. 15

IV. Offsetting delay and delays after the expiration of contract time
In accordance with waiver of the completion date and associated cases, courts and boards have long
established that there is a different standard between requests for additional compensation (requiring
extension of the longest path) and just merely relief from liquidated damages (any critical delay). In the
U.S., the concept of time extensions for delays that impact the contract completion date but not the
longest path are referred to as offsetting delay, because a non-compensable time extension has the sole
purpose of offsetting liquidated damages. 16 This legal principle is best articulated by the Armed Services
Board of Contract Appeals (ASBCA) in Framlau. In that case, the Government argued it did not have to
grant a time extension for the 9 days of extra work it added after the extended contract completion date
because that added work had no effect on the longest path, which finished 166 days late, meaning it
could assess liquidated damages for all 166 days. However, the Armed Service Board of Contract
Appeals refuted this argument:

The Government does not deny that it took some additional time to perform the
extra work. It denies the request for an extension of time only on the ground that the
work could be performed concurrently with items of uncompleted work under the
basic contract. The Government's position fails to recognize a distinction between
requests for time extensions to support claims for relief from assessment of
liquidated damages, and to support claims for upward price adjustments. In
assessing liquidated damages, a contractor will not be charged for its delays which
are concurrent with Government-caused delays. Since the Government directed a
change and has assessed liquidated damages, appellant should not be charged for
the number of days it took to perform the additional work, even though the work
was performed concurrently with other work. On the other hand, appellant may not

14
RDP Royal Palm Hotel, L.P. ex rel. PADC Hospitality Corp. I v. Clark Const. Group, Inc., 168 Fed. Appx. 348, 354
(11th Cir. 2006).
15
A. Hedenberg & Co. v. St Luke's Hosp. of Duluth, C7-95-1683, 1996 WL 146732 (Minn. Ct. App. Apr. 2, 1996).
16
See, e.g., §3:12 Concurrency—Offsetting delay, Dale and D’Onofrio, Construction Schedule Delays, (Thomson
Reuters 2016).

7
 use these days for computing an equitable adjustment in price for the increased time
of performing the contract if the work was performed concurrently with other work
required by the contract or during an extended period of performance resulting from
delays caused by appellant. 17

Likewise, the definition of critical for time extensions is based upon whether or not the contract
completion date would be delayed. 18 A 2002 U.S. board case directly addressed this issue when one
side’s expert testified that only the longest path to the projected completion date was relevant, even
after the contract completion date, while the other expert testified that after the contract completion
date had expired, all work was critical for purposes of time extensions. 19 The board evaluated both
positions and concluded that criticality for excusable time extensions should be evaluated with respect
to the contract completion date, rather than the projected completion date, finding:

While it is logical that during the original (or contractually extended) performance
period, any work on parallel paths with significant amounts of float will not become
critical so long as critical path work is delayed, these characterizations become
meaningless once the Contract's completion date has been reached. Once past that
point, common sense dictates that any substantative work remaining becomes
critical to Contract completion. 20

Likewise, courts in other common law countries have come to similar determinations. For example, in
the England case Balfour Beatty v. Chestermount, the court opined that when evaluating time
extensions, the real question was not if a delay impacts the projected completion date, but rather the
required period in which the contract allowed for performance. 21 In Delay and Disruption in
Construction Contracts, 5th Edition, Andrew Burr provided an analysis and excerpt of the case as
follows: 22

17
Appeal of Framlau Corp., A.S.B.C.A. No. 14479, 71-2 B.C.A. (CCH) ¶9082, 42106, 1971 WL 1269 (Armed Serv.
B.C.A. 1971)
18
See, e.g., See, e.g., Conner Bros. Const. Co., Inc. v. Brown, 113 F.3d 1256, 41 Cont. Cas. Fed. (CCH) ¶ 77119 (Fed.
Cir. 1997) (“The Board found that by the fall of 1986, most activities were critical because of the impending
completion date (December 28, 1986).”); In re Fire Security Systems, Inc., 02-2 B.C.A. (CCH) ¶ 31977, 2002 WL
1979118 (Veterans Admin. B.C.A. 2002) (holding that after the expiration of contract time, all activities are critical);
In re Advanced Engineering & Planning Corp., Inc., A.S.B.C.A. No. 53366, A.S.B.C.A. No. 54044, 05-1 B.C.A. (CCH) ¶
32806, 2004 WL 2677071 (Armed Serv. B.C.A. 2004), modified on reconsideration, A.S.B.C.A. No. 53366, A.S.B.C.A.
No. 54044, 05-1 B.C.A. (CCH) ¶ 32935, 2005 WL 874473 (Armed Serv. B.C.A. 2005) (evaluating delay based on the
contract completion date: “AEPCO has not challenged the CPM methodology Cummings employed in analyzing the
claim (finding 306). Its scheduling expert, Willis, acknowledged that a CPM analysis based on logic ties and
inserting causes of delay is useful in projecting impact on contract completion date (finding 282). We conclude that
Cummings' analysis is credible and supportable” (emphasis added)); Sauer Inc. v. Danzig, 224 F.3d 1340, 1345 (Fed.
Cir. 2000) (“In addition, the un-foreseeable cause must delay the overall contract completion; i.e., it must affect
the critical path of performance.”)
19
In re Fire Security Systems, Inc., 02-2 B.C.A. (CCH) ¶ 31977, 2002 WL 1979118 (VABCA 2002 Aff’d ASBCA 2002)
20
In re Fire Security Systems, Inc., 02-2 B.C.A. (CCH) ¶ 31977, 2002 WL 1979118 (VABCA 2002 Aff’d ASBCA 2002)
21
Balfour Beatty Building Ltd v Chestermount Properties Ltd, Queen's Bench Division, 62 B.L.R. 1 (1993)
22
Chapter 6, Paragraph 6-103, Andrew Burr, Delay and Disruption in Construction Contracts, 5th Edition
(Routledge, 2016).

8
 In regard to acts of prevention, the court in Chestermount saw no difficulty that
would prevent an extension of time producing a new completion date, which was
prior to that on which the variations were actually instructed. The precise nature of
the evidence offered in that case to prove the effect of a D’s time risk event does not
appear from the report. But the court’s exposition of the basis of C’s entitlement
when calculated retrospectively is, with respect, arguably correct:

“[T]he function of the completion date is to identify the end of the

period of time commencing with the date of possession within which
[C] must complete its works, including variations. The completion date
is thus not the date by which [C] ought to have achieved, or ought in
the future to achieve, practical completion, but the date which marks
the end of the total number of working days starting from the date of
possession within which [C] ought fairly and reasonably to have
completed the works.” 23

Consistent with the standard in “time at large” situations, Scottish courts have also acknowledged that
the definition of critical should be considered based upon the time contractually required to complete
the project. Lord Drummond Young performed an in-depth look at the issue in City Inn v. Shephard,
concluding that the contractual completion date was the relevant standard:

[With respect to] the time within which the contractor is contractually bound to
complete the works, a difference arose between the parties. Counsel for the
defender submitted that the contractual completion date, allowing for any
extension, must always set a criterion against which the timing of instructions should
be judged. Counsel for the pursuers, by contrast, submitted that, where the
contractor's progress was such that he clearly would not complete by the contractual
completion date, it was sufficient that the instructions were in sufficient time to
meet his actual progress. In my opinion the current contractual completion date
must normally be relevant, for two reasons. First, there is the possibility that the
contractor will take special measures to accelerate progress. That is no doubt subject
to an exception when the Completion Date is past, but in that event it may be that
instructions should have been given prior to the Completion Date. The second reason
is more general: the contractual provisions expressly envisage that information will
be provided by the architect to the contractor to enable completion in accordance
with the contractual Conditions (clause 5.4), and those conditions include the
important obligation (clause 23) to proceed regularly and diligently with the works
and to complete the works on or before the Completion Date.

This view is consistent with the well-established proposition that the owner impliedly warrants that the
plans and specifications are buildable. 24 Contract provisions typically allow the owner or employer to

23
Balfour Beatty Building Ltd (1993) 62 BLR 1 at 30-31.
24
U.S. v. Spearin, 54 Ct. Cl. 187, 248 U.S. 132, 136, 39 S. Ct. 59, 63 L. Ed. 166, 42 Cont. Cas. Fed. (CCH) ¶ 77225
(1918) (“[I]f the contractor is bound to build according to plans and specifications prepared by the owner, the

9
make a change, but if that change has a critical path impact, the owner is responsible for paying for the
costs associated with the change. When the change does not keep the contractor on site longer, such as
on an alternate path of work when the contractor was already delayed, the owner gets the benefit of
not having to pay extended general conditions costs for the change. However, if, at the same time, it
would have impacted the current adjusted contract completion date, the owner cannot simultaneously
assess liquidated damages while causing delay or adding extra work. 25 For example, in the 2011 case
Martin Construction v. United States, the Court of Federal Claims was incredulous that the Government
would add extra work while simultaneously assessing liquidated damages during a period after the
contract completion date:

When the contract completion date passed, and the Corps faced the question of
whether to terminate Martin’s contract or allow Martin to complete the project, the
Corps attempted to retain its ability to do both. Although Martin deserved a
significant time extension to complete the project, the Corps began assessing
liquidated damages and reserved its right to terminate the contract for default.
Beginning a few weeks later, the Corps issued two modifications altering the scope of
work but failed to grant Martin any additional time to perform the work. The Corps’
message to Martin was “we want you to perform the additional work specified in the
modifications, but you are still in default because the completion date (already
passed) remains the same.” The Court cannot accept this nonsensical position. The
doctrine of waiver is seldom applied in construction contracts, but this contract
might well present the rare or exceptional circumstances in which waiver should be
found. 26

In City Inn, Lord Young continued to evaluate the issue, dispelling the pursuers criticism that the added
work was not critical because it impacted the contract completion date but not the longest path in the
current schedule:

On this basis it was said that the lateness or otherwise of an instruction can only be
assessed against the actual progress of the works at the relevant time, not against
the current contractual completion date. I do not think that this criticism is well
founded. It is true that [contractor’s expert]'s analysis was based on a completion
date of 25 January, but that was the current contractual completion date.
Consequently, in calculating the delay that was caused by any particular late
instruction, the starting point had to be the original completion date. The reason,
discussed more fully at paragraph [23] above, is that that was the date by which the
defenders were contractually obliged to complete the works; in terms of clause 5.4

contractor will not be responsible for the consequences of defects in the plans and specifications.”); Gilbert
Engineering Co. v. City of Asheville, 74 N.C. App. 350, 328 S.E.2d 849 (1985) (implied warranty in every contract
that owner provided plans will prove adequate for the project).
25
See, e.g., Appeal of A. Brindis Co., 70-2 BCA P 8527 (1970) (“change orders were issued subsequent to the
completion date. The Government, under contract law, does not have the right to assess all of the liquidated
damages in view of the changes in the work directed by the Contracting Officer after the contract completion date
… Appellant is entitled to an extension of time to cover the period required to perform the changed work. Jan R.
Smith, Contractor, FAACAP No. 66–21 (65–2 BCA 5306).”)
26
Martin Const., Inc. v. U.S., 102 Fed. Cl. 562, 592 (2011) (emphasis in original).

10
 of the Conditions of Contract it is envisaged that information will be provided by the
architect in such a way as to enable completion in accordance with the contractual
Conditions. Those Conditions include the obligation, in clause 23, to complete by the
completion date.

Lord Young then took to examining the schedule update prepared by the contractor that showed a later
projected completion date than the then-contract completion date. In his decision, Lord Young found
that the then-current scheduled programme did not amend the required contract completion date in
effect at that point in time from which delay is measured:

The 57-week programme was, for this purpose, an internal document of the
defenders. It obviously reflected delays that have already occurred in the project.
The architect, however, had retained the original completion date, despite
applications for an extension of time under clause 25. In my opinion the pursuers
must accept the consequences of that decision. It is true that various other causes of
delay were operating at the same time as the delay caused by the late instruction
relating to the bathroom fittings, and the analysis carried out by [contractor’s expert]
in relation to the bathroom fittings does not take account of these. In my opinion
that is the correct procedure. The delays caused by the individual late instructions
must first be analyzed, and an estimate formed of the length of the delay caused by
each such instruction. It is only then that the Architect, or the court, can proceed to
the second stage of estimating the relative significance of the various causes of
delay. Those must of course be taken into account as concurrent causes of delay.

In other cases, the same focus for evaluating time extensions has also applied to the contractual
completion date as opposed to the scheduled or projected completion date. In the 2007 English case
Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board, Lord Denning MR stated that
the standard for evaluating time extensions for extra work was the contractual time period:

It is well settled that in building contracts—and in other contracts too—when there

is a stipulation for work to be done in a limited time, if one party by his conduct—it
may be quite legitimate conduct, such as ordering extra work— renders it impossible
or impracticable for the other party to do his work within the stipulated time, then
the one whose conduct caused the trouble can no longer insist upon strict
adherence to the time stated. He cannot claim any penalties or liquidated damages
for non-completion in that time. 27

In the 2007 English case Multiplex v. Honeywell, Jackson J noted two important points. First, the fact
that variations, permitted by the contract, are measured as to whether it “prevents Honeywell from
completing on the due date” as opposed to the projected completion date. 28 Second, variations that do

27
Trollope & Colls Ltd v North West Metropolitan Regional Hospital Board [1973] 1 WLR 601 (emphasis added).
28
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007] EWHC 447 (TCC) (“Nevertheless,
if Multiplex issues a direction under clause 4.2 which constitutes a variation and which leads to completion on a
later date, then such variation prevents Honeywell from completing on the due date. Thus, such a direction
constitutes an act of prevention within the meaning of clause 11.10.7.”)

11
prevent the contractor from completing by the “due date” do constitute an act of prevention. 29 While
Multiplex v. Honeywell stands for the proposition that time does not become at large as long as there is
a contractual recourse for the act of prevention, the contractual recourse—an extension of time—needs
to be enacted in order to trigger the contractual machinery. In accordance with Multiplex v Honeywell,
the contractual recourse of an extension of time would be due when a change or other act of prevention
would affect completion by the contractual due date. Much the same as under United States law,
interference with a contractual completion date would, at a minimum, result in an extension of time for
the measure of impact to that required date.

V. Reconciliation with CPM scheduling

CPM scheduling is the use of logic relationships between activities that reflect a critical path. CPM
schedules should be constrained to any required contractual completion date in order to measure the
impact of delay to that contract date, as adjusted for prior excusable delay. As shown in the examples
above, the application of time at large, the prevention principle, waiver of the completion date, and
offsetting delay repeatedly occur in cases long after the advent of critical path method (CPM) scheduling
in 1956. Turning back to the above referenced fact pattern, let us return to the point in time where the
owner adds the additional six months of work:

Regardless of the fact that the contractor would have finished the project six months late, the
employer’s added work would independently prevent completion of the work from meeting the
contract completion date by six months. To put it another way, if the contractor was not entitled to a
time extension for the added six months, the owner would essentially be telling the contractor that not
only does the contractor have to accelerate its own work by six months on Path A, but it also has to
make up six months of work the owner just added on Path B in order to avoid assessment of liquidated
damages. This situation creates the setup that originated the concepts of the prevention principle, time
at large, and waiver of the completion date.

Even if the contract is worded to say “unless the projected completion date is extended, no time
extension is granted,” it may well be the case that the equity principles above take precedence,

29
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No 2) [2007] EWHC 447 (TCC) (“The fact that
such a direction is permitted by the contract does not prevent it being an act of prevention: see Dodd v Churton
[1897] 1 QB 562 and Trollope & Colls Ltd v North West Metropolitan Hospital Board [1973] 1 WLR 601. If a
variation instruction affects the date upon which Honeywell is going to complete by a small period, one may say
that this is a hindrance; it does not in any sense make the installation of the electronic systems impossible. On the
other hand, that matter does prevent completion on the due date and it should be characterised as
“prevention”.”)

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disallowing retention of liquidated damages in that jurisdiction. In an offsetting delay scenario, had the
contractor not been behind schedule, the owner would have had to pay full delay costs to the
contractor in order to make the same change to the contract. Because the contractor happened to be
behind schedule, the owner gets the benefit of adding extra work to the contract without having to pay
additional costs. However, it would be unfair for the owner to simultaneously assess liquidated damages
while adding the extra work.

That sense of fairness was the reason that the first edition of the SCL Protocol recommended granting a
non-compensable time extension during a period of culpable delay. The original thinking behind the SCL
Protocol guidance from 2002 through 2016 was summarized by Keith Pickavance and subsequently
Andrew Burr in Delay and Disruption in Construction Contracts, finding on this point that “The drafters of
the SCL Protocol considered this to be unfair and recommended that, after the completion date has
passed, C’s entitlement to more time should be calculated not by reference to its effect upon the critical
path to the then date for completion, but by reference to the period of time taken up on site by the
work, or suspension caused by D’s risk event. This is also the way the CMS address the issue.” 30

Because the SCL Protocol 2nd Edition now recommends not granting any time extension in the same
situation, allowing full assessment of liquidated damages where it previously recommended granting a
time extension, one could argue that the SCL Protocol went from “fair and balanced” to “owner-biased”
with the second edition. Assessing liquidated damages while simultaneously adding extra work after the
expiration of contract time may even constitute a penalty, depriving the employer of collection of any
moneys for failure to perform. 31

However, there may be a caveat in that the SCL Protocol 2nd Edition Core Principles include the
following:

5. Procedure for granting EOT

Subject to the contract requirements, the EOT should be granted to the extent that
the Employer Risk Event is reasonably predicted to prevent the works being
completed by the then prevailing contract completion date. In general, this will be
where the Employer Risk Event impacts the critical path of the works and thus
extends the contract completion date. This assessment should be based upon an
appropriate delay analysis, the conclusions derived from which must be sound from
a common sense perspective. 32

By both referencing a sound common sense analysis and referencing the “contract completion date” as
opposed to the “projected” or “scheduled” completion date, one may conclude that the Protocol 2nd
Edition does allow for reasonable time extensions for offsetting delay, or at the least is subject to
interpretation. 33

30
Chapter 6, Paragraph 6-105, Andrew Burr, Delay and Disruption in Construction Contracts, 5th Edition
(Routledge, 2016).
31
If determined to be a penalty, liquidated damages may not be able to be assessed. See, e.g., Makdessi v
Cavendish Square Holdings BV, 2015 WL 6655167 (2015).
32
SCL Protocol 2nd Edition, Core Principle 5 (emphasis added).
33
Likewise, Core Principal 2 of the SCL Protocol 2nd Edition makes similar reference to the contract completion
date so as not to be confused with the completion date of the works:

13
By comparison, the United States industry standard for schedule delay analysis, ANSI/ASCE/CI 67-17
does not take a specific position on this topic, but opines in Guideline 4.6 that in certain circumstances
offsetting delay may apply:

4.6 In situations where the completion date is adjusted properly for change orders
and the contractor is behind schedule, owner delays that occur thereafter on a
separate path may have a mitigating effect on assessment of damages. 34

Whether or not a delay results in a time extension in a given instance may well depend upon the
circumstances of that case. However, given the legal principles of time at large, waiver of the completion
date, offsetting delay, and the prevention principle, an owner may be wary to deny an extension of time
simply because its own delay is critical to the contract completion date but not on the longest path and
expect to collect liquidated damages during the period of its own delay. Advice to the contrary has its
risks.

2. Purpose of EOT
The benefit to the Contractor of an EOT is to relieve the Contractor of liability for damages for
delay (usually liquidated damages or LDs) for any period prior to the extended contract
completion date and allows for reprogramming of the works to completion. The benefit of an
EOT for the Employer is that it establishes a new contract completion date, prevents time for
completion of the works becoming 'at large' and allows for coordination / planning of its own
activities.
34
ANSI/ASCE/CI 67-17 Schedule Delay Analysis; The US standard also adds the following commentary associated
with Guideline 4.6:
In certain situations when the current, as adjusted contract completion date has passed or the
current, updated schedule is projecting a completion date that is later than the contract
completion date, owner-responsible delays occurring thereafter may mitigate the assessment of
liquidated damages. This type of delay is referred to as “offsetting delay,” recognizing that an
owner-caused delay may result in recognizing a noncompensable time extension to offset all or a
portion of any potential liquidated damages. Delay damages can be measured and determined
by the effect of each path of activities that impact the current contract completion date, based
on chronology of delay, responsibility for delay, magnitude of delay, and how both contractor
and owner delays affect the current contract completion date at specific times. Such situations
may affect the assessment of owner damages previously projected as a result of the contractor’s
late performance and the owner’s right to assess damages for late completion.

14