The effect of time at large and waiver of the completion..., Const. L.J. 2018,...

For educational use only

The effect of time at large and waiver of the completion date on
CPM schedule delay analysis
Robert M D’Onofrio*

Table of Contents

1. SCL Protocol reversal of position in Second Edition

2. Example scenario

3. Time at large and waiver of the completion date

4. Offsetting delay and delays after the expiration of contract time

5. Reconciliation with CPM scheduling

Journal Article

Construction Law Journal

Const. L.J. 2018, 34(5), 299-312

Subject
Construction law

Other related subjects

Damages

Keywords
Concurrent causes; Construction projects; Delay; Extensions of time; Liquidated damages

Cases cited
Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd [2007] EWHC 447 (TCC); [2007] B.L.R. 195 (QBD
(TCC))
Framlau Corp, Re unreported 1971 (United States)
City Inn Ltd v Shepherd Construction Ltd [2010] CSIH 68; 2011 S.C. 127 (IH (Ex Div))
Martin Construction Inc v United States 102 Fed. Cl. 562 (2011) (United States)

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*Const. L.J. 299 1. SCL Protocol reversal of position in Second Edition

From 2002–2016, the Society of Construction Law’s (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:

"[T]he 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." 1

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: *Const. L.J. 300

Figure 1: Protocol graphic showing a time extension for owner delays to the contract completion date while contractor is
further behind schedule.

However, in February 2017, the SCL put out a second edition of the Delay and Disruption Protocol (Protocol 2nd edn). On
this topic, the Protocol 2nd edn 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 edn 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." 2

The Protocol 2nd edn 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
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." 3

The Protocol 2nd edn 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 *Const. L.J. 301 were already going to be delayed by a greater period because of the Contractor
Delay to Completion." 4

Finally, the Protocol 2nd edn 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".5

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In other words, the Protocol 2nd edn 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.

2. 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.

Figure 2: Baseline programme.

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 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: *Const. L.J. 302

Figure 2: Baseline programme.

Figure 3: Updated programme with prior contractor delay

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 data-centre 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.

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Figure 2: Baseline programme.

Figure 3: Updated programme with prior contractor delay

Figure 4: Updated programme incorporating employer directed instruction.

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.6 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.

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 edn 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 edn guidance in this
scenario, the owner could assess six months of liquidated damages. *Const. L.J. 303

3. 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.7 In Multiplex v Honeywell, Jackson J summarised 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." 8

Jackson J also summarised the long legal history of the concept, noting, amongst other cases, that in Peak Construction 9
Salmon LJ said:

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"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."

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, 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 *Const. L.J. 304
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 US 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 US Court of Claims described the concept as follows:

"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 follows:

"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
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: *Const. L.J. 305

"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

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4. 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 US, 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 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 US Board case directly *Const. L.J. 306 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, the court opined that, when evaluating time extensions, the real question was not whether 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 edn, Andrew Burr provided an analysis and excerpt of the case as follows22:

"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 *Const. L.J. 307 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:

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"[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."24

This view is consistent with the well-established proposition that the owner impliedly warrants that the plans and specifications
are buildable.25 Contract provisions typically allow the owner or employer to 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.26 For example, in the 2011 case Martin Construction, the Court of Federal Claims was
incredulous *Const. L.J. 308 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." 27

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 bass 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 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."28

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 *Const. L.J. 309 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

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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."29

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 English case Trollope & Colls, 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." 30

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.31 Second, variations that do prevent the contractor from completing by the "due date" do constitute an act of
prevention.32 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 US 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. *Const. L.J. 310

5. 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:

Figure 5: Effect of employer instruction on updated programme.

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.

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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, 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 2002–2016 was
summarised 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 *Const. L.J. 311 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." 33

Because the SCL Protocol 2nd edn 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.34

However, there may be a caveat in that the SCL Protocol 2nd edn 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." 35

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 edn does allow for reasonable time
extensions for offsetting delay, or at the least is subject to interpretation.36

By comparison, the US 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.
*Const. L.J. 312 " 37

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.

Robert M D’Onofrio

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Footnotes

1 UK Society of Construction
Law Delay and Disruption
Protocol, 1.4.13.
2 SCL Protocol 2nd edn,
Guidance Part B: Guidance on
Core Principles, 10.7.
3 SCL Protocol 2nd edn,
Guidance Part B: Guidance on
Core Principles, 10.8.
4 SCL Protocol 2nd edn,
Guidance Part B: Guidance on
Core Principles, 10.9.
5 SCL Protocol 2nd edn,
Guidance Part B: Guidance on
Core Principles, 10.10.
6 See generally, Float, Dale
and D’Onofrio, Construction
Schedule Delays (Thomson
Reuters 2016), §2:10.
7 See, e.g., Holme v Guppy 150
E.R. 1195; (1838) 3 M & W
387; Dodd v Churton [1897]
1 Q.B. 562; Westwood v
Secretary of State for India 11
WR 61; 7 LT (NS) 736; Peak
Construction (Liverpool) Ltd v
McKinney Foundations Ltd 1
B.L.R. 111; 69 L.G.R. 1; Wells
v Army and Navy Co-operative
Society Limited (1902) 86 LTR
764; Amalgamated Building
Contractors Ltd v Waltham
Holy Cross Urban DC [1952]
2 All E.R. 452; [1952] 2
T.L.R. 269; 50 L.G.R. 667;
Trollope & Colls Ltd v North
West Metropolitan Regional
Hospital Board [1973] 1
W.L.R. 601; [1973] 2 All E.R.
260; 9 B.L.R. 60.
8 Multiplex Constructions (UK)
Ltd v Honeywell Control
Systems Ltd (No.2) [2007]
EWHC 447 (TCC); [2007]
B.L.R. 195; 111 Con. L.R. 78.
9 Peak Construction 1 B.L.R.
111; 69 L.G.R. 1.
10 Dodd v Churton [1897] 1 Q.B.
562.
11 See, e.g., Dale and D’Onofrio,
Construction Schedule Delays
(2016), §3:16 Waiver of
completion.
12 DeVito v US, 188 Ct. Cl. 979,
990, 413 F 2d 1147 (1969).
13 See, e.g. Madden Phillips
Const Inc v GGAT
Development Corp, 315 SW
3d 800 (Tenn Ct App 2009)
("Madden Phillips owed
GGAT a duty to complete the
project within a reasonable
time regardless of whether

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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.).
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., Dale and D’Onofrio,
Construction Schedule Delays,
(2016), §3:12 Concurrency—
Offsetting delay.
17 Appeal of Framlau Corp,
ASBCA No 14479, 71-2
B.C.A. (CCH) 9082, 42106,
1971 WL 1269 (Armed Serv.
BCA 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 BCA 2002) (holding
that after the expiration of
contract time, all activities
are critical); In re Advanced
Engineering & Planning Corp,
Inc, ASBCA No 53366, ASBCA
No 54044, 05-1 BCA (CCH)
32806, 2004 WL 2677071
(Armed Serv B.C.A. 2004),
modified on reconsideration,
ASBCA No 53366, ASBCA
No 54044, 05-1 BCA (CCH)
32935, 2005 WL 874473
(Armed Serv BCA 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

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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 BCA (CCH) 31977,
2002 WL 1979118 (VABCA
2002 Aff’d ASBCA 2002).
21 Balfour Beatty Building Ltd v
Chestermount Properties Ltd
62 B.L.R. 1; 32 Con. L.R. 139;
(1993) 9 Const. L.J. 117.
22 Andrew Burr, Delay and
Disruption in Construction
Contracts, 5th edn (Routledge,
2016), Ch.6, para.6-103.
23 Balfour Beatty 62 B.L.R. 1; 32
Con. L.R. 139; (1993) 9 Const.
L.J. 117 at [30]–[31].
24 City Inn Ltd v Shepherd
Construction Ltd [2007]
CSOH 190; 2007 WL 4190646
(UK).
25 US v Spearin, 54 Ct Cl 187,
248 US 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 contractor
will not be responsible for the
consequences of defects in the
plans and specifications.");
Gilbert Engineering Co v City
of Asheville, 74 NC App 350,
328 SE 2d 849 (1985) (implied
warranty in every contract
that owner provided plans
will prove adequate for the
project).
26 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

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changed work. Jan R Smith

Contractor, FAACAP No. 66–
21 (65–2 BCA 5306)").
27 Martin Construction Inc v US,
102 Fed. Cl. 562, 592 (2011)
(emphasis in original).
28 City Inn Ltd v Shepherd
Construction Ltd [2007]
CSOH 190; 2007 WL 4190646
(UK).
29 City Inn Ltd v Shepherd
Construction Ltd [2007]
CSOH 190; 2007 WL 4190646
(UK).
30 Trollope & Colls Ltd v North
West Metropolitan Regional
Hospital Board [1973] 1
W.L.R. 601; [1973] 2 All E.R.
260; 9 B.L.R. 60; (1973) 117
S.J. 355 (emphasis added).
31 Multiplex v Honeywell [2007]
B.L.R. 195; 111 Con. L.R. 78
("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").
32 Multiplex v Honeywell [2007]
B.L.R. 195; 111 Con. L.R. 78
("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 Limited
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".").
33 Burr, Delay and Disruption in
Construction Contracts, 5th
edn (2016), Ch.6, para.6-105.
34 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] UKSC
67; [2016] A.C. 1172.
35 SCL Protocol 2nd edn, Core
Principle 5 (emphasis added).
36 Likewise, Core Principal
2 of the SCL Protocol 2nd
edn makes similar reference
to the contract completion

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date so as not to be confused

with the completion date of
the works: "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."
37 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."

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