The Great Delay Analysis Debate

THE GREAT DELAY
ANALYSIS DEBATE
A series of papers first presented by the
Society of Construction Law, in association with the
Centre of Construction Law & Management,
King’s College London,
at King’s College on 18th October 2005
Dr Julian Critchlow, Alastair Farr,
Steve Briggs, John Hammond, Keith
Pickavance and Professor Anthony Lavers
March 2006
130
www.scl.org.uk
The Society of Construction Law, in association with the
Centre of Construction Law & Management, King’s College London,
first presented the series of papers that follow to a capacity audience
in the Great Hall at King’s College on 18th October 2005.
The Great Delay Analysis Debate was a spirited contest, based on
a typical construction scenario; the protagonists presented divergent
views, basing their arguments on different delay analysis methodologies.
The motion was: ‘This house considers that the time impact method is
the most appropriate for the analysis of delay in construction disputes.’
THE GREAT DELAY
ANALYSIS DEBATE
Introduction
Dr Julian Critchlow ............................................................ 3
The materials .................................................................... 5
The Contractor’s claim –
using the impacted as-planned method
Alastair Farr ....................................................................... 9
The Employer’s defence –
using the as-planned versus as-built method
Steve Briggs ..................................................................... 15
The Engineer’s decision –
using the collapsed as-built method
John Hammond ................................................................ 19
Advice to the Adjudicator –
using the time impact method
Keith Pickavance ............................................................. 27
The Contractor’s response

Alastair Farr ..................................................................... 38
The Employer’s response

Steve Briggs ..................................................................... 41
The Engineer’s response

John Hammond ................................................................ 43
Response of the Adjudicator’s adviser

Keith Pickavance ............................................................. 45
Epilogue .................................................................................. 49
The authors ............................................................................ 53
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2
INTRODUCTION
Dr Julian Critchlow
It has been said that the only major construction project to finish on time and
to budget was a church where, presumably, divine intervention played a role.
Certainly, delay is one of the commonest causes of construction disputes and
also one of the most difficult to evaluate. Often, the position is complicated
by the absence of documentary evidence: not only may there be limited
correspondence, meeting minutes and returns, but there may not even be a
reliable as-planned programme.
Furthermore, even where record keeping is strong, establishing critical delay is

beset with legal and technical difficulties. Thus, numerous delays may be
identifiable but only some of them need have contributed to overall late
completion. Delaying events may have occurred concurrently, or their effects
may have been concurrent, making it difficult to decide which event was
critical. When a case comes to court, or before some other tribunal, some
delays may be held to be proved but not others: the consequence may be to
change the entire critical path network.
Some delay related issues may, to an extent, be resolvable in legal terms. For
example, the courts have considered various tests for determining causation
such as the ‘but for’ and ‘dominant cause’ tests, and there is some guidance as
to ownership of float, although the true position in respect of many of these
matters remains opaque; but even where the law and facts are clear,
demonstrating causation remains an immensely complicated process.
Advances in software over the last five or six years have made it practicable to
approach the problem far more rigorously than was previously the case.
However, whilst the potential for accuracy has increased, so has the scope for
argument over methodology. Questions arise such as whether delay should be
assessed by observing its impact on the Contractor’s intended programme (if
any), or whether the as-built programme should be taken as the starting point
and delaying events ‘collapsed’ out of it so as to establish their critical effect.
Further, the answers to these questions may vary according to the context in
which they arise: the appropriate methodology to establish an extension of
time in the course of a project may not be applicable to decide liquidated
damages after completion. The extent of the evidence and the amount of
money in issue may also be significant.
The importance of these issues is recognized in the Society of Construction

Law’s (SCL’s) Delay and Disruption Protocol1 which identifies four major
categories of methodology for the analysis of delay, being:
1 Delay and Disruption Protocol, Society of Construction Law, reprinted October 2004,
downloadable from www.scl.org.uk or www.eotprotocol.com.
3
o As-planned versus as-built;
o Impacted as-planned;
o Collapsed as-built; and
o Time impact analysis.
The Protocol briefly discusses the respective merits of each, concluding that
time impact analysis is the most thorough but also the most time-consuming
and costly. On the basis that there is no definitive answer as to which method
is best in any given circumstance, the Protocol proposes that the parties agree
a method of analysis before it is carried out, but experience suggests that this
may be a pious hope: when a dispute arises parties will often be unable to
agree the day of the week.
It was against this general background that the present authors decided to raise
awareness of delay issues in a debate. For the purposes of the debate (ie not
necessarily expressing their actual views), each of the participants spoke
briefly in favour of one or other of the methodologies identified in the
Protocol with reference to a hypothetical construction scenario, and
contributions were also solicited from the floor. A vote was taken as to the
most appropriate methodology that should be applied to the assumed facts.
A view was subsequently expressed that a permanent record of the

proceedings would be welcome and that record, somewhat modified by the
authors, is the subject matter of this publication. Whilst it is not intended
remotely to constitute a definitive analysis of this area of construction, it does
give an introduction to the issues and highlights some of their complexities.
4
THE MATERIALS
The delay scenario

The following is a delay scenario intended to provide a foundation for
identifying how we think about the way cause and effect are analysed and
entitlement measured. It provides the underlying factual basis for each of the
methods of analysis attempted by the Contractor in his claim, the Employer in
his response, the Engineer in his decision and in the advice tendered to the
Adjudicator.
The construction contract

The project consists of the construction of a below ground, reinforced concrete
slab designed to be waterproofed with an applied finish.
Under the contract the Contractor bears the risk of:

1. Carrying out the work with good quality materials and
workmanship;
2. Supplying labour, plant and materials;
3. Keeping the excavations free of water; and
4. Setting-out.
The Contractor is entitled to start on 15th March and must complete by 27th
April. Liquidated damages for failure to complete on time are set at £10
per day.
If the Contractor is caused delay by:

1. Variations;
2. Errors or ambiguities in the description of the works;
3. A failure to supply information, drawings or details in due time;
then the Employer must extend the date for completion by a fair and
reasonable period.
The planned programme

The Contractor does not intend to work weekends or over the Easter bank
holiday, Good Friday and Easter Monday, 26th and 29th March. Its planned
programme is illustrated at Figure 1.
Information necessary for the commencement of the fabrication of

reinforcement on 1st April is indicated as being required on 25th March.
5
Figure 1: The planned programme
The as-built programme

The parties have agreed that the as-built programme is that illustrated at
Figure 2.
Figure 2: The as-built programme
Summary of the facts

The Contractor’s site diary and progress records appear in Figure 3.
The following is an executive summary of the facts:

1. During the excavations the weather was very bad. The
Contractor’s water pumps also broke down on two occasions.
Work was brought to a standstill. The excavations collapsed,
resulting in the need for increased excavation work and
reconsolidation.
2. On 18th March the Employer announced his intention to redesign
the waterproofing. The Employer asked the Contractor for
suggestions and researched the adequacy of the Contractor’s
recommendation before deciding.
3. On 12th April the Contractor was instructed use Admix, a
proprietary waterproofing fluid to be added to the concrete during
placing. The Admix was not delivered until 22nd April.
4. The Contractor had allowed four days for the concrete pour and
five days for an applied waterproofing layer. The concreting with
Admix actually took seven days.
5. On 23rd March the Employer determined that there had been an

error in setting out caused by the Contractor using the slab
reinforcement drawing for dimensions (on which an additional bay
had been shown in error), and gave instructions for the position of
the slab in relation to the boundary to be changed. This resulted in
the Contractor having to carry out additional excavation and
backfill and consolidate the incorrect excavation.
6. The reinforcing bar bending schedules were scheduled to be
delivered to the Contractor by 25th March for a commencement of
fabrication shortly after the bank holiday. However, because of a
sudden influx of work in the Employer’s design office, the bar
bending schedules were not released until 12th April.
7. On 15th April the Contractor instructed his reinforcement
fabricators to work overtime by weekend working.
8. The work eventually finished on 4th May, seven calendar days late.
7
Cum.%
Date Day
Description Activity ID comp.
Site set up completed full mobilisation 1000 100
15-Mar-04 Monday
Started setting out. Couldn't find site layout drawing so used slab drwg. 1010 7
16-Mar-04 Tuesday Excavation . Rained off late morning 1010 10
17-Mar-04 Wednesday No work today torrential rain all day 1010 10
No progress -rain. 1010 10
18-Mar-04 Thursday Discussed waterproofing with Employer. Instructed not to proceed with applied finish. We to advise on
alternatives E1060
Good progress today 1010
19-Mar-04 Friday
Provided Employer with suggestions for waterproofing. E1070 25
20-Mar-04 Saturday
21-Mar-04 Sunday
Weather clearing up started late morning good progress 1010 35
22-Mar-04 Monday
Employer considering Admix - requested test data E1070 40
rained off pm. 1010 50
23-Mar-04 Tuesday
E says setting out is wrong mistake in slab drwg. shows one bay too many E1100
heavy rain hampering progress, pumping ground water 1010 55
24-Mar-04 Wednesday
considering setting out problem E1110
heavy rain no progress, pump breakdown repaired pm. 1010 55
25-Mar-04 Thursday
Correcting setting out problem E1110
26-Mar-04 Friday Bank Holiday. Pumping excavations 1010
27-Mar-04 Saturday Pumping excavations 1010
28-Mar-04 Sunday Pumping excavations 1010
Bank Holiday. Pumping excavations 1010
29-Mar-04 Monday Should have received rebar schedules 1030
Test data for Admix requested from BRE E1080
Excavations collapsed, pumps failed over weekend 1010 40
30-Mar-04 Tuesday
Recommence excavation in new area E1110 50
Pumping and clearing collapsed exc. 1010 40
31-Mar-04 Wednesday
Complete new excavation E1110 100
Weather fine good progress 1010 55
01-Apr-04 Thursday
Formwork for fill in redundant excavation E1110 100
Weather showery progress maintained 1010 70
02-Apr-04 Friday
Mass concrete fill to redundant exc. E1110 100
03-Apr-04 Saturday
04-Apr-04 Sunday
05-Apr-04 Monday Weather fine good progress 1010 85
06-Apr-04 Tuesday Excavations completed today pumps still working 1010 100
07-Apr-04 Wednesday 2 Joiners start formwork.Admix data sent to CA. 1020 15
08-Apr-04 Thursday Formwork proceeding slowly request more joiners 1020 30
09-Apr-04 Friday 2 more joiners arrived.Good progress 1020 60
10-Apr-04 Saturday
11-Apr-04 Sunday
Formwork nearly finished ready to start rebar 1020 95
12-Apr-04 Monday Bar bending schedules arrived (at last!)
Instruction received to use Admix.checking with suppliers.
2 joiners am complete outstanding formwork 1020 100
13-Apr-04 Tuesday
Commence rebar fabrication 2 steelfixers. Order placed for Admix delivery expected 22Apr 1030 10
14-Apr-04 Wednesday Rebar Steelfixers have requested overtime 1030 20
15-Apr-04 Thursday Rebar Overtime approved for weekend 1030 30
16-Apr-04 Friday Rebar 1030 40
17-Apr-04 Saturday Rebar (12hrs weekend working) 1030 55
18-Apr-04 Sunday Rebar (12hrs weekend working) 1030 70
19-Apr-04 Monday Rebar incorrect fixings caried out over w/e 1030 80
20-Apr-04 Tuesday Rebar redo part reinfocement 1030 87
21-Apr-04 Wednesday Rebar progress poor no enthusiasm 1030 95
Rebar Completed 1030 100
22-Apr-04 Thursday
Admix arrives. E1180
23-Apr-04 Friday Started concreting only achieved two pours. 1040 15
24-Apr-04 Saturday
25-Apr-04 Sunday
Concrete 2 pours 1040 20
26-Apr-04 Monday
Admix Not good progress, there seems to be some difficulty in blending E1190
27-Apr-04 Tuesday
Admix Rep visited Admix now added to premix E1190
28-Apr-04 Wednesday
Admix We seem to have got the hang of this now. Much better progress E1190
Had to reject a load of concrete, could only achieve 1 pour 1040 50
29-Apr-04 Thursday
Admix E1190
3 pours achieved today 1040 75
30-Apr-04 Friday
Admix E1190
01-May-04 Saturday
02-May-04 Sunday
03-May-04 Monday Bank Holiday.
04-May-04 Tuesday Admix
E1190
Figure 3: The site diary and progress records
8
THE CONTRACTOR’S CLAIM
Using the impacted as-planned method
Alastair Farr
This was a very simple project for us. Groundworks and reinforced concrete
are our speciality, and we’ve been in this business for over 50 years. We had
never worked for this Employer before, but were told before we started that
they could be very difficult to deal with! Nevertheless we gave them the
benefit of doubt. In hindsight though, this was a big mistake.
The as-planned programme

Our as-planned programme, as you can see from Figure 4 below, was very
straightforward: five main activities, each of them logic linked with simple
finish to start relationships, and a single critical path. We allowed sufficient
time in our programme to carry out these works.
Figure 4: The as-planned programme
The works were to be carried out in the spring and we therefore knew the
weather conditions that we could reasonably expect. We didn’t have design
responsibility, and it was vital that the Employer provide prompt and accurate
design information. This included setting out drawings before we started, and
re-bar information by 25th March. You can see from our as-planned
programme that we added a milestone date for the release of re-bar schedules
and allowed two working days as lead-in for procurement.
The as-planned impacted method

The method we have used is known as the ‘as-planned impacted’ method.
This involves impacting delays into the original logic of our as-planned
programme. We have chosen this method because:
o It is simple to understand;
o It is cost-effective;
o It is a proportionate method (relative to the size of the claim);
o There are a limited number of activities and simple logic in the
programme;
o There are a limited number of events;
o The nature of the events suit this method of analysis;
o We want to show the effect of mitigation/acceleration.
For these reasons, we say that it is a perfectly acceptable and recognised

method of delay analysis, and is ideally suited to the circumstances of this
claim.
The Contractor’s claim

Our claim can be summarised as follows:
Intended project completion 27th April 2004
Actual project completion 4th May 2004
Over-run 7 days
Our claim is for the following delays:

1. Exceptionally inclement weather;
2. Incorrect setting-out details;
3. Late provision of bar-bending schedules;
4. Change in method of waterproofing.
Exceptionally inclement weather and setting out

Well, things went wrong from day one. We have dealt with the first two
delays together.
The first problem we encountered was the weather: the rain can only be
described as torrential. The pumps we supplied had duties designed for
seasonal rainfall, but not the conditions we experienced. At one point, on 30th
March, our excavations collapsed. We appreciate that the contract says that
we have to keep excavations free of water, but exceptional weather was not
our risk. Our solicitors have told us that the extension of time clause was
badly drafted and should have provided for extensions to be granted in these
circumstances. They have advised us that this gives rise to various legal
10
implications (but that’s another debate!) We calculate that between 16th
March and 2nd April there was a total of nine days downtime and delay due to
exceptional weather.
The second problem was the Employer’s failure to provide a full set of layout
drawings. In order to get on, we used the slab drawing. On 23rd March the
Employer informed us that our setting out was not right due to a mistake in
their own drawing. This meant that we had to carry out remedial works, and
the earliest we could complete these was 2nd April.
We have shown these delays on the following programme (see Figure 5).
grey = the original baseline
blue = impacted events that have become critical
red = the progressed baseline
diamonds = milestones.
Figure 5: Impacted programme - exceptional weather and setting out
Weather
We have impacted the effect of the weather and associated delays on the
programme, adding a further Activity 1011, and a finish to finish link with a
two day lag to Activity 1010 ‘Set out and excavate’ (to represent the work
remaining to be completed as at 2nd April).
11
Incorrect setting–out information

We have impacted the effect of incorrect setting-out information by adding a
new Activity 1012 with a completion date of 2nd April. This was the earliest
date by which we able to complete the remedial works. The activity has then
been linked into the programme with a finish to finish link to Activity 1010, to
represent the fact that setting-out and excavation could not be completed until
at least 2nd April. You can see that the effect on the overall completion date
is a delay until 11th May, seven days later than the actual completion date.
Late reinforcement details

Re-bar schedules were finally received on 12th April, a whole fortnight later
than the original milestone date of 23rd March. Fortunately (for the
Employer), knowing that their schedules were late, we took a decision to pre-
order reinforcement allowing us to begin fabrication the day after we got the
schedules. However, in our original programme we had allowed a period of
two working days as a reasonable procurement period. This was for our
benefit, not the Employer. The fact that we managed to mitigate this delay is
taken account of later in the analysis and for now we have shown the original
lead-in period to which we were entitled.
We have impacted the programme (see Figure 6) by changing the milestone

date from 25th March to 12th April to show the actual date of receipt of the re
bar schedules. A period of two working days for our lead-in period has been
maintained; and it can be seen that fabrication would have started but for
mitigation and acceleration on 15th April.
Figure 6: Impacted programme - late release of rebar schedules
12
The impact of Admix

Finally, there was a major variation to the system of waterproofing. We had
originally allowed in our programme for an applied waterproof finish (see
Activity 1050, Figure 7).
On 18th March we were instructed not to proceed with an applied finish. On

12th April the system was instructed as a change to an Admix system. The
Admix did not arrive until 22nd April. When viewed against the as-built
programme, 22nd April was actually the date upon which we had completed
the re-bar and were ready to begin pouring concrete. Therefore, we accept
that there was no delay caused by the late instruction and delivery period at
this point. The impacted programme in Figure 7 shows this.
Figure 7 - Impacted programme - change of Admix
Nevertheless we have added the actual delivery date onto the programme as a
milestone on 22nd April (Activity 1049) to show that this would have been the
earliest we could have started to pour concrete with Admix, but for preceding
delays.
We recognise that the overall period for placing concrete and waterproofing
was reduced by the change to an Admix system. The actual period taken was
seven days, whereas the original programme allowed a period of nine days. It
should be noted that the original five day period for concrete was extended
within this period by two days due to the complexities of Admix.
Therefore, to show the Employer that we have taken the shortened period into
account, we have shown two alternatives on our programme. The first (the red
13
bars) shows the effect on the original programme based upon the original
periods for concrete and waterproofing, and a completion date of 12th May
(this is shown by activities 1040 and 1050). The second alternative shows a
completion date of 10th May (and this is represented by the green bar for
activity 1053).
Both completion dates are beyond the actual completion date of 4th May. The
difference between the impacted completion date and the actual completion
date is accounted for by the following:
o Mitigation of lead-in period for re-bar;
o Acceleration of re-bar fabrication by working weekends;
o Shortened period for the new method of waterproofing;
o Weekend of 8th/9th May (not previously included in the original
programme);
o Additional bank holiday of 3rd May (not foreseen in original
programme).
Summary
In summary, our as-planned impacted analysis shows that the delays above
would have meant that completion would not have been achieved until 12th
May had it not been for our acceleration and mitigation.
We therefore claim a full extension of time to 4th May 2004. We are hopeful
that the Employer will consider our claim fairly and objectively.
14
THE EMPLOYER’S DEFENCE
Using the as-planned versus as-built method
Steve Briggs
Alastair Farr mentioned in his opening that this was the first time they had
worked for us and I have to say that if their performance on this project is
anything to go by it will probably be the last! This project has great
significance for us in that it represents a prestigious new slab development for
which we had employed a high-profile architect and a top-drawer professional
team. We had invested a considerable amount of money in publicising this
new slab development, and had taken several advance bookings from
prospective tenants. We even had an expression of interest from the Office of
the Deputy Prime Minister but, sadly, it was withdrawn when they discovered
that the slab was only big enough to park one Jag. The fact that the handover
of the slab and the subsequent opening were delayed caused us significant
financial loss and more than a little embarrassment since we had a number of
reality TV celebrities lined up for the ceremony which ultimately had to be
cancelled.
I must also say at the outset that in reviewing and commenting on the
Contractor’s claim submission, I am at a disadvantage in that I do not have the
luxury of a trained professional programmer within my organisation.
Nevertheless, one of my quantity surveying team knows a bit about
programming and he has assisted me in coming to my conclusions by
preparing some programmes for me. On his recommendation my analysis will
be based upon the tried and tested method of as-planned versus as-built.
The as-planned versus as-built method

In this method a simple comparison is taken between the programme that
indicates the Contractor’s original intent at the outset, and the programme that
the Contractor actually achieves.
Figure 8: As- planned compared to as-built activity durations
15
If this comparison indicates a difference in completion which can positively be
said to have been caused by the Employer, then an entitlement to an extension
of time might arise. If the difference cannot be said to have been caused by
the Employer, and was in fact caused by the Contractor, then of course no
entitlement exists.
The as-planned programme

To examine our project, firstly I have the programme upon which basis I
contracted with the Contractor for the construction of the slab.
Figure 9: Contractor's as-planned programme
This programme clearly shows a logical sequence of events and indicates that
the Contractor was to start as agreed on 15th March, and should have
completed the setting out and excavation by 22nd March. As we shall see, this
was not achieved. The programme then shows a logical and achievable
sequence of activities and indicates that the Contractor could – and should –
have finished the work by 27th April.
Employer’s risks
The only requirement for information from me was to provide the Contractor
with information relating to the bending schedules for reinforcement; my
quantity surveyor informs me that there is in fact float on this activity. Now,
as can be seen clearly, that information was only required in time to allow the
Contractor to start fabricating the reinforcement. The programme also shows
that they couldn’t do that until they had constructed the formwork. In my
view then, as long as I provided the Contractor with the bending schedules
before they finished the formwork there would be no delay, no effect on the
programme and therefore no entitlement to an extension of time. The fact that
there is float on the activity for information release is obviously of benefit to
me, since I am the owner of the project and should therefore be the principal
beneficiary of any such float.
16
Contractor’s risks
Under the terms of the contract there are a number of items for which the
Contractor bears the risk and which are relevant to this review. Firstly, they
have an obligation to provide good quality materials and to ensure good
quality workmanship. Next, they are responsible for the provision of all
labour, plant and materials; and the plant in particular is to be reliable and
well-maintained. Thirdly, they are responsible for ensuring that any open
excavations are kept clear of water, for obvious reasons. Finally, they retain
responsibility for ensuring that setting-out is done accurately and from the
correct drawing.
The as-built programme

Now we come to the as-built programme. Everything was in place to allow
the Contractor to start on time on 15th March.
Figure 10: Causes of differences between as-planned and as-built
On 23rd March I discovered that the Contractor had incorrectly set out the
slab. This meant that they had to back-fill the incorrectly excavated area and
start again. The excavation then took far longer than it should have done, with
the excavation filling with water and the pumps that they provided to keep the
excavation clear of water breaking down at least twice – the second time
resulting in a collapse which required re-excavation and reconsolidation.
Accurate setting out, provision of reliable plant and keeping the excavation
clear of water were all at the Contractor’s risk.
Now, I accept that the information from my design team for the reinforcement
was supplied later than intended but I do not consider that it caused any delay.
The Contractor was not in a position to fabricate the reinforcement until they
had completed the formwork, which they could not do because of the delay to
the setting out and excavation. My obligation, as I see it, was only to ensure
that the information was with them before they finished the formwork. The
programme clearly shows that this was achieved.
17
I also talked about re-designing the waterproofing but the decision to use
Admix was taken well before the Contractor had finished the formwork and in
plenty of time to allow them to procure it. In fact, the records show that they
had obtained it by 2nd April, which was the day they finished the
reinforcement and the day before they were ready to start the concrete pour. If
I had not taken this timely and time-saving decision there can be little doubt
that they would have finished even later than they actually did because, under
the original programme, they were to have applied the waterproof finish after
the concrete pour and this was programmed to have taken a further five days.
Summary and conclusions

Under the contract the Contractor is only entitled to an extension of time if
delay is caused, and I stress that it must be actual delay, by:
o Variations;
o Errors or ambiguities in the description of the Works;
o Failure to supply information, drawings or details in time.
My analysis, which compares the Contractor’s as-planned programme with the

as-built programme, clearly shows that although the instruction to use Admix
could arguably be called a variation, its issue did not cause delay. There were
no errors on the face of the documents issued to the Contractor, and although
the bending schedules were issued later than intended, there was float in the
original programme (which was to my benefit). In any event they were issued
in time and clearly did not cause delay. My conclusion, therefore, is that the
Contractor must be responsible for the entire period of delay.
Figure 11: Summary effect of causative events
In my view the Contractor has no entitlement to an extension of time and,

accordingly, under the terms of the contract I intend to instruct my quantity
surveyor to deduct LADs in the sum of £80. However, I am reasonable and in
a spirit of reconciliation I am prepared, with the Contractor’s agreement, to
seek an independent view from a suitably qualified Engineer.
18
THE ENGINEER’S DECISION
Using the collapsed as-built method
John Hammond
The motion before the house is: ‘This house considers that the time impact
method is the most appropriate technique for the analysis of delay in
construction disputes.’ I invite you to agree not only that the time impact
method does not analyse delay (in its true sense) at all but that it is only the as-
built but-for (ABBF) method that does so. To do this, I must invite you to
review how a competent ABBF analysis addresses delay. ABBF addresses
delay by progressively removing (or, exceptionally, adding) events which
affected the progress of the Works and potentially give rise to entitlements
from (or to) the actual sequence of events and reconstructs what would have
happened but for those removed events.
Expressed simply, there are five basic steps in preparing an ABBF analysis:
1. Gather as-built information;
2. Identify as-built activities, their start and finish dates, and calculate
their actual durations;
3. Identify relationships and create a network;
4. Identify events to be ‘collapsed’;
5. Run ‘collapses’.
The first step is to find out what actually happened. Typically, it is by

compiling a database of records relating to progress. This database may be
conveniently viewed in the form of a bar chart as in Figure 12. This illustrates
some of the raw database records – in this case the ‘Contractor’s progress
records and site diary’ – reproduced in bar chart format.
Figure 12 – Database of progress records and diary in barchart format
19
A database prepared in such a format allows:

1. The preparation of working calendars to accord with days actually
worked;
2. The identification and addition to that database of relevant ‘as
built’ activities;
3. The allocation of relevant database records to their respective ‘as
built’ activity;
4. The identification of actual start and finish dates for each ‘as-built’
activity.
When this is done the activities in the database are the activities which form
the ‘as-built chart’ illustrated at Figure 13.
The as-built chart
WEEKENDS & BANK HOLIDAYS
DATABASE RECORDS
RELEVANT ‘AS-BUILT’ CODED AND GROUPED
BAR ADDED (NOT WITH RELEVANT
NETWORKED) AS-BUILT ACTIVITIES
DAYS DURING WHICH

WORK RAINED OFF :
WORKING CALENDARS
PREPARED TO SUIT
START AND FINISH

DATES ADDED
Figure 13: Deduction of activity durations from record database
Figure 13 illustrates:
o Non-working days (weekends, bank holidays and days rained off)
identified;
o The relevant as-built activities (identified from the progress
records);
o Relevant progress records sorted to appear against the ‘as-built’
activities to which they refer;
o Start and finish dates identified for each activity.
20
The ‘as-built chart’ is the foundation of an ABBF analysis, but it is no more

than an illustration.
In order to reconstruct the effect of events affecting progress, the inter

relationships that existed between the relevant as-built activities have to be
added. In so doing the actual relationships will be sought and (for the
avoidance of doubt) the relationships shown on a Contractor’s programme
(which shows predicted relationships between predicted activities) will be
disregarded.
Our ‘as-built network’ looks like that illustrated at Figure 14.
Figure 14: As-built network
Here we can see –

o The ‘as-built’ bars, previously identified from the progress data,
brought forward (as static bars); and
o The networked bars and the inter-relationships between them.
‘Collapsing’ the as-built network

Collapsing the as-built network is the act of removing (or adding) an event
which affected the regular progress of the Works or reducing (or increasing)
the duration of an activity, so as to:
1. Reconstruct what would be likely to have happened ‘but-for’ that
event; and
2. Calculate the likely effect of that event.
Collapsing is a mirror of the technique used in conventional planning (and

prospective methods used for delay analysis, such as as-planned impacted or
time impacted) where events are added to (or removed from) a networked
programme to predict their likely effect.
In the case of programme-based methods, the events affecting progress are

added in chronological order; when collapsing, those events are removed in
reverse chronological order.
21
‘Sorting the wheat from the chaff’

Although not a necessary step, before collapsing it may be (and is for the
purposes of this illustration) helpful to identify those events which either:
o Were likely to have affected progress but did not actually do so; or
o Did not give rise to an entitlement to either an extension of time or
compensation.
Whether an interruption to progress gives rise to an entitlement (to either an

extension of time or compensation) depends on the terms of the contract.
In the case of the scenario provided, the parties agreed that in relation to relief
from LADs:
‘If the Contractor is caused delay by –
1. Variations;
2. Errors or ambiguities in the description of the Works;
3. A failure to supply of (sic) information, drawings or details in due
time;
then the Employer must extend the date for completion by a fair and
reasonable period.’
In relation to compensation, in the absence of provisions for loss and/or

expense, the parties left the usual terms as to hindrance or prevention to be
implied.
In the scenario provided, the following ‘events’ fell under the head of ‘chaff’:
xx-Mar-04 Inclement weather No entitlement to either extension of

time or compensation
23-Mar-04 Effect of aborted work No evidence of progress to new

excavation having been actually
affected
29-Mar-04 Rebar schedules due No evidence of actual delay
09-Apr-04 Two more joiners No agreement to accelerate
12-Apr-04 Schedules arrived No evidence of actual delay
17-Apr-04 Weekend working No agreement to accelerate
22-Apr-04 Admix arrives No evidence of actual delay
22
Events that actually affected progress
The events which actually affected the regular progress of the Works, listed in
reverse chronological order, are:
1. Instruction dated 12th April to incorporate Admix in concrete to

slab;
2. Instruction dated 23rd March to excavate in new location;
3. Instruction dated 18th March to omit applied waterproof finish to
slab.
Collapse No. 1
Instruction dated 12th April to incorporate Admix in concrete to slab
After comprehensive research (in this case it is no more than my excuse to

illustrate the effect of reducing a duration), I am satisfied that the instruction
requiring ‘Admix’ to be incorporated in the concrete delayed the completion
of the slab by one working day.
We can reconstruct what would have been likely to have happened but for that
delay to completion of the slab by reducing the networked duration of the
activity ‘concrete pour’ by one working day, as illustrated in Figure 15.
BARS AFTER CURRENT

TIME-ANALYSIS
BARS FROM
AS-BUILT
CHART
DURATION REDUCED BY 1 W/ DAY
‘MOVEMENT’ OF ANALYSED BAR

AGAINST AS-BUILT BAR RECONSTRUCTS (-1) W/DAY
LIKELY EFFECT OF INTERVENING EVENT
Figure 15: Collapsed as-built - stage 1
o The networked duration of as-built activity ‘concrete pour’ reduced
by one working day to simulate what would have happened but for
the instruction to incorporate the Admix in the concrete to the base;
and
o The activity ‘project completion’ advancing by one working day
against the as-built bar, demonstrating that the calculated effect on
completion was one working day.
23
Collapse No. 2
Instruction dated 23rd March to excavate in new location
The evidence supports the argument that, but for the instruction to excavate in
the original location, the Contractor would have commenced its excavation in
the revised location when it actually commenced the aborted work.
We can reconstruct what would have been likely to have happened but for
delay to the commencement of the revised excavation by removing the (as
built) activity ‘aborted original excavation’ from the network (together with,
for completeness, the associated (as-built) activity ‘backfill original
excavation). The effect of this is illustrated at Figure 16.
BARS AFTER CURRENT

TIME-ANALYSIS
BARS FROM
AS-BUILT
CHART
DELETED
ACTIVITIES
(NO BARS)
‘MOVEMENT’ OF ANALYSED BAR AGAINST

AS-BUILT BAR RECONSTRUCTS LIKELY (-4½) W/DAYS
AGGREGATE EFFECT OF ‘COLLAPSED’ EVENTS
Figure 16: Collapsed as-built - stage 2
o The networked bars to activities ‘aborted original excavation’ and
‘backfill original excavation’ deleted from the network (the as-built
bars remain, of course); and
o The activity ‘project completion’ advancing by a total of 4½
working days against the as-built, demonstrating that the calculated
aggregate effect on completion (ie of delays analysed to date) is 4½
working days.
Collapse No. 3
Instruction dated 18th March to omit applied waterproof finish to slab
Instructions requiring the omission or substitution of work present the as-built

analyst with a situation not encountered elsewhere. In the main he deals in
facts, and where the facts are not clear, his task is to get as close to the truth as
he is able.
But what does he do when there are no facts to consider?
24
A view I share is that it is permissible to examine the Contractor’s most recent

programme and, as long as satisfied that the data is not unreasonable against
the Employer, to adopt it; but if the analyst is not so satisfied, he should make
his own assessment.
The Contractor’s programme data
Figure 17: The Contractor's planned programme
At Figure 17 we see a print of the Contractor’s programme data showing the

duration of its activity ‘apply waterproof finish’ and its predicted relationships
with ‘concrete pour’ and ‘project completion’. I am satisfied that the
Contractor’s data is not unreasonable against the Employer and accordingly
add it to my network. Turning now to the reconstruction of what would have
been likely to have happened but for the instruction to omit the applied finish,
o A new activity ‘apply waterproof finish’ added to the network to

simulate what would have happened but for the omission of the
applied finish; and
o The activity ‘project completion’ delayed by an aggregate of half a
working day against actual completion.
BARS AFTER CURRENT

TIME-ANALYSIS
BARS FROM
AS-BUILT
CHART
NOTE : NETWORKED BAR ADDED

& NO BAR B/F FROM AS-BUILT
‘MOVEMENT’ OF ANALYSED BAR AGAINST

AS-BUILT BAR RECONSTRUCTS LIKELY + ½ W/DAY
AGGREGATE EFFECT OF INTERVENING EVENTS
Figure 18: The but-for effect of the omission of applied finishes
25
Conclusions
Analysis by the as-built but-for method of the effects of the events that
actually affected the regular progress of the Works (including instructions
requiring omissions from the Works) shows that but for those events the
Contractor would have completed its work half a working day later than it
actually did.
Accordingly, the contract would not authorise me to give an extension of time

for completion, and no entitlement to compensation for delay to completion
(as opposed to compensation for disruption) arises.
26
ADVICE TO THE ADJUDICATOR
Using the time impact method
Keith Pickavance
Well, that was all very interesting. So far, we have heard the Employer and
the Contractor cherry-picking the facts to suit their respective cases and the
Engineer having to make up his own evidence of precedence to produce his
answer to the problem.
The principle elements of the dispute

What has not yet been analysed is the effect of all the evidence in the case.
But before proceeding to analyse the factual evidence of delay, let us consider
for a moment what this dispute is all about.
Figure 19: Principle characteristics of the matter
Figure 19 illustrates that for the purposes of an analysis of causation, the

principle characteristics of the matter are:
1. A simple programme of five activities;
2. All of which comprise a single critical path;
3. An as-built programme of four activities of different durations and
timing from the planned programme;
4. The planned programme illustrates that there is a single
information supply date of 25th March, two working days before
the activity for which it is required is due to start. The information
was actually received on 12th April.
27
Figure 20: Apparent concurrency of delay to activities
Figure 20 illustrates that the available evidence suggest concurrency of delay

to progress in particular activities:
1. Bad weather and plant failure at the Contractor’s risk affecting the
same activity as was affected by additional excavation caused by
inconsistencies between the drawings.
2. Poor management and defective materials causing delay to
completion of the same activity as was affected by a variation order
to change the method of working.
Figure 21: Acceleration by Contractor and Employer
Figure 21 illustrates that there is also acceleration effected by the Contractor

and acceleration effected by the Employer to be considered.
28
Figure 22: Concurrency or parallelism
Figure 22 illustrates that, apart from that, there is also a delay in the receipt of
information, which is partially concurrent with the effects of bad weather or
defective plant (or it is in parallel with the effect of inconsistent drawings).
However, neither the Contractor nor the Employer have even mentioned
concurrency, both arguing that the other is the sole cause of the delay to
completion – and the Engineer has failed to address it.
Time impact analysis is the method of analysis I have adopted to break down
concurrency and parallelism into particular causes having calculable effects,
event by event, chronologically, taking into consideration the Contractor’s
progress between the occurrence of each event.
First update and impact of first event

The first event to occur that is at the Employer’s risk, was initiated on 18th
March. This was an orally instructed variation to omit the applied
waterproofing finish. In order to identify the true effect of this at the time, it is
necessary to first update the programme to 18th March.
From Figure 23 we can observe that there has been some slow progress as a
result of bad weather for which the Contractor is not entitled to time.
It is clear from Figure 23 that in the absence of subsequent recovery, poor

progress was likely to cause some delay to completion. It is also apparent that
as a result of the delay to progress, the information which hitherto had been
required in time to start the reinforcement on 1st April was only required in
time for the expected new start date of 3rd April.
29
Figure 23: Update to 18th March
Figure 24: Effect of variation to omit applied waterproofing
On 18th March there was an oral instruction to vary the works by omitting the
applied waterproof finish, for which five days had been included in the
planned programme.2 Figure 24 illustrates that the effect of this variation was
to break the chain of causation between the Contractor’s delay to progress and
2 Activity ID 1050.
30
what had previously been its likely effect (a delay to completion) and to
produce a likely early completion. Thus, the effect of the variation was to
produce an advanced completion date.
Second update and impact of second event

The next event was initiated on 23rd March, when the setting out was
discovered to be in error.
Figure 25: Update to 23rd March
Figure 25 illustrates an update of the programme to 23rd March. This

demonstrates that between 18th and 23rd March the Contractor had suffered
further delay to progress, which had eaten into the predicted early completion,
reducing the total float created by the omission and predicting a less early
completion. By now, the earliest the reinforcement activity3 was expected to
be started was 4th April.
When on 23rd March the Employer found the setting out to be incorrect, the
facts were that the Contractor was in possession of two drawings, each of
which gave him different information. There was an inconsistency between
two drawings. Whilst that probably falls within the risk defined as ‘errors or
ambiguities in the description of the Works’,4 the unresolved question is
whether it was the inconsistency between the drawings that caused the
defective work (an Employer’s risk) or the Contractor’s knowing failure to use
the correct drawing (a Contractor’s risk). Whether the additional work was
caused by an event at the Contractor’s risk or the Employer’s risk is a matter
3 Activity ID 1030.
4 Employer’s risk number two.
31
for the Adjudicator to decide, but for the purpose of the analysis, in the first
instance it will be assumed to be one at the Employer’s risk.
Figure 26: Error in setting out
Figure 26 illustrates that after the Employer identified that there was a fault in
setting out, two days elapsed while the Employer and Contractor agreed what
to do about it. Two days were then spent correcting the setting out errors and
after that there were three days’ more contract work to be done before the
excavation activity could be completed.
The effect of that was to take up all the remaining time saved by the omission
of waterproofing and to demonstrate that in the absence of subsequent
recovery, this was likely to cause delay to completion by two days. By now
the reinforcement activity was not expected to start before 12th April.
Third update and impact of third event

The next event to occur was a delay in the receipt of information needed for
the commencement of the ‘fabricate reinforcement bars’ activity.5 The
information release was supposed to have been achieved by 25th March but it
was not made until 12th April. Bearing in mind that the Contractor had
planned to use two days in procuring the steel, this meant that the earliest that
‘fabricate reinforcement bars’ could be expected to start was 14th April.
5 Activity ID 1030.
32
Figure 27: Delay in receipt of information
Figure 27 illustrates that the effect of this was to demonstrate that in the
absence of subsequent recovery, the delay in receipt of information was likely
to cause seven days delay to completion. The earliest date on which
completion could then be expected was the date that completion was actually
achieved, 4th May.
Figure 28: Effect of accelerated procurement
33
However, Figure 28 illustrates that in fact the Contractor did not use the two
planned days to procure the steel. The Contractor achieved some recovery of
potential delay to completion in that it actually only used one day to procure
the steel, permitting the ‘fabricate reinforcement bars’ activity to commence
on 13th April, the earliest date it was possible for it to commence as a result of
previous delays to progress.
Thus the delay to progress expected to result from the information release
occurring when it did, never actually happened. The acceleration in the
procurement process demonstrated, in fact, that the delay in receipt of
information had no effect at all on the completion date then predicted.
Fourth update and impact of fourth event

Figure 29 illustrates that the next event to be initiated was the instruction to
use Admix, which took a period of eight working days to procure.
From the updated programme it is apparent that by the time the Admix was
ordered, the concreting activity6 for which it was required was not expected to
commence until much later than the date on which it was delivered.
Thus, the procurement of Admix also had no effect on the completion date.
Figure 29: Procurement of Admix
Figure 30 illustrates that during the time in which the Admix was being
procured, the Contractor accelerated the fabrication of reinforcement which
reduced the likely delay to completion by one day.
6 Activity ID 1040.
34
Figure 30: Accelerated fabrication of reinforcement
Calculating the time effect of lost productivity

However, when the Contractor came to use the Admix he suffered some
further delay to progress as a result of lost productivity. This appears to have
been a result of poor management in not taking the suppliers advice before
starting the process, poor deliveries of concrete and a different method of
working caused by the addition of the Admix.
In order to calculate the degree of productivity lost as a result of the Admix,

rather than the poor management or poor material supplies, a slightly different
analysis is needed.
In order to calculate the effect of lost productivity arising out of the use of
Admix as opposed to anything else it is first necessary to find a productivity
baseline. Because there was no period during the execution of this activity
that was not disrupted, the planned productivity will be used.
The evidence shows that the Contractor planned to make 16 pours7 in four
days.8 In other words the Contractor was planning to achieve productivity of
four pours per day. The best productivity it actually achieved was three days
at three pours per day, 75% of efficiency.
However it is not possible to apportion a concrete pour between successive

days, the Contractor must either achieve a full pour or nothing; so in order to
achieve 16 pours at the rate of three per day, the process will take six days.
Thus, as the planned period was four days, the effect of adding the Admix is
7 One on 29th April, two on each of 23rd, 26th and 27th April, and three on each of 28th,
30th April and 4th May.
8 Activity ID 1040.
35
two additional days for pouring the concrete. Therefore the additional time
required for the change of working method caused by the instruction to use
Admix is two days.
In order to identify how that additional two days affects the likely completion
date it has to be added to the period for the activity ‘concrete pour’.
Fifth update and impact of sixth event

Figure 31 illustrates that when two days for the Admix are added to activity
‘concrete pour’, the time impact analysis predicts that in the absence of
recovery, it will cause two more days delay to completion, making the likely
delay to date three days.
Figure 31: Effect of lost productivity at Employer’s risk
Figure 32 illustrates that when the Contractor came to carry out the concreting
work he used up more time than that. In fact, he used seven days for that
activity in total (four days planned, two days entitlement for variation and one
at the Contractor’s risk).
36
Figure 32: Effect of lost productivity at Contractor's risk
Summary and conclusions

So, in the end the Contractor actually lost three days caused by the Employer
(which has already been calculated), and then the Contractor lost another day
in productivity caused by poor management and materials deliveries. The
effect of that additional day was that the work had to continue over a bank
holiday, causing the contract to extend to 4th May, seven calendar days late.
In summary, under this contract the Contractor is entitled to relief for delay to
completion that is caused by an event. The actual effect is:
o One day caused by errors in setting out; and
o Two days caused by the variation to use Admix.
Therefore the Contractor is entitled to an extension of time of three days,

provided always that the inconsistency in the drawings was the operative
cause of the error in setting out.
37
THE CONTRACTOR’S RESPONSE

Alastair Farr
I’d like to quickly re-cap on the reasons why we chose the impacted as-
planned method. These were as follows:
o Simple to understand;
o Cost-effective;
o Proportionate;
o Limited number of activities;
o Simple logic in the programme;
o Limited number of events;
o Nature of the events can be represented;
o We want to show the effect of mitigation/acceleration;
o It’s a perfectly acceptable and recognised method.
The Employer’s view - as-planned versus as-built

The Employer’s method showed that we have no entitlement. However, I
would like to make the following points:
1. The Engineer’s analysis shows that the biggest problem with their
method is that it is entirely subjective. For example, it was their
setting-out details which were clearly provided late. Other
drawings provided by them were incorrect. Furthermore, they have
taken our lead-in periods and assumed these to be periods of ‘float’
and to the Employer’s benefit.
2. The method does not properly take account of concurrency. For
example, problems encountered with their setting-out information
ran concurrently with weather related issues. Regardless of the
position they take on weather and related issues, there was
concurrent delay due to incorrect setting out information.
3. The method does not always show and give credit for mitigation
and acceleration of Employer delays. For example; they have
made no allowance for the fact that we commenced re-bar
fabrication the day after information release – reducing the lead-in
period allowed in our planned programme and mitigating the delay
which would have been caused by the late re-bar schedules.
I would also like to point out that the Employer’s analysis is factually
incorrect. For example, the concrete pour had an actual duration of seven
days. A more significant error is that the actual completion is shown as
5th May, not 4th May.
38
The Engineer’s method – collapsed as-built
My first observation is that the Engineer’s collapsed as-built method is
incredibly complex, and complexity means time and expense in preparing the
analysis. I feel certain that the Employer will agree with us on this point: after
all he will have to pay the Engineer for his time in preparing the analysis! The
as-planned-impacted method is more suitable, particularly in this case, where
the programme has few activities, simple logic and there are only a few delay
issues.
Secondly, the collapsed as-built method requires logic to be ‘created’

subjectively by adding logic to an as-built programme, with lags and floats. In
effect the Engineer has had to compose the logic to make it ‘fit’ the as-built
programme. Our view is that our as-planned programme is the proper baseline
from which to measure the effect of delay, and its effect on our intended
critical path.
My third observation is that the method requires the subjective subtraction of

delays and is therefore open to interpretation.
Fourthly, there are limitations as to how you ‘subtract’ delays. In the main
this seems to have been achieved by increasing or shortening activities, but
this does not seem to accurately model the effects of the delays. Deleting or
adding logic links retrospectively can seriously undermine credibility of the
analysis, and the method.
The fifth point is that the method requires all events to be taken into account:
Employer and Contractor delays. In many cases the delay events have been
disregarded as ‘chaff’.
Finally, it seems to me that the method does not adequately allow for re-
sequencing to be taken into account, and it therefore produced unreliable
results. For example the Engineer has attempted to take into account the
change from an applied system of waterproofing to an Admix system but the
result is a completion date that is half a day later than the actual completion
date.
The Adjudicator’s adviser – time impact analysis

I have the following observations on the time impact method used by the
Adjudicator’s advisor.
1. Time impact analysis is also complex, time consuming and
therefore costly. I maintain that the impacted as-planned method is
much more suitable due to their being few activities, simple logic
and a limited number of events.
2. I do not consider it proportionate to the case: the damages are, after
all, only £10 per day.
3. Time impact analysis seems to me to be no more than the impacted
as-planned method with periodic progress updates. The as-planned
39
programme is used and the principle of impacting delays is the
same. The only difference is that the adviser uses periodic updates,
which of course does not show the delay(s) that would have been
incurred had we not mitigated and accelerated our works.
For these reasons, I do not consider time-impact analysis to be the most

appropriate method in this case.
Summary
In conclusion, having heard the submissions of the Employer, the Engineer,
and the Adjudicator’s adviser, I still submit that the appropriate method in the
circumstances of this case is impacted as-planned.
40
THE EMPLOYER’S RESPONSE
Steve Briggs
As-planned impacted
Firstly, I would like to look at the Contractor’s position, which is based on the
impacted as-planned method. My primary concern regarding its use as a tool
in the resolution of the dispute is that it introduces new unapproved activities
which have not been agreed with us. Furthermore, the logic used in the
analysis is designed to suit the Contractor’s case – we only agreed to the
overall programme period and did not approve the programme as such. In our
view therefore the results are entirely theoretical and take no account of what
actually happened. The analysis also ignores the Contractor’s culpable delay,
which we say is the real cause of the delay to the project.
As-built but-for
The Engineer’s view, using the as-built but for method, is in my view far too
complex for ordinary mortals to understand. I gather that it is also called the
collapsed as-built method – and when our accountants see the bill for the
Engineer’s time I have no doubt there will be a few more collapses! My other
concerns are that the analysis relies upon records that were only kept by the
Contractor (we had no need to keep records of anything other than start and
finish dates), and it requires an impressionistic interpretation of the as-built
logic. Finally, the method by which the Contractor’s delays are removed from
the programme conceals the effect of Contractor’s delays. Although we have
suffered significant delay on this project, we nevertheless feel that such a
complex analysis is disproportionate to the scale of the dispute. On the plus
side – the analysis did come to the correct conclusion.
Time impact analysis

With regard to the time-impact analysis carried out to assist the Adjudicator, I
would restate my comments about complexity and proportionality. The
method itself requires detailed and accurate progress records, which I have
already stated we did not keep; but above all, it introduces other new and
contentious factors that we have not agreed upon. These are that in the
Contractor’s programme there was no mention of the time required to procure
reinforcing bars, ‘consider’ the setting out problem (in our view the
Contractor’s fault anyway), and rectify the setting out fault. Finally, the
analysis didn’t seem to me to consider the actual progress position at the time
the re-bar information was released to the Contractor, but only considered it at
the time it was supposed to have been released.
41
As-planned versus as-built
In summary, I would therefore restate our belief that the only way to analyse
these matters is the as-planned versus as-built method, simply because it
considers the actual events, is proportionate to the dispute and easily
understood. We are also told that the courts like it (although I don’t know if
those two factors are connected). I submit that it is therefore the right method
in the circumstances.
42
THE ENGINEER’S RESPONSE
John Hammond
Both the Contractor and Employer have criticised the other methods. In
particular, Steve Briggs for the Employer criticises the Contractor’s approach,
the impacted as-planned method. He alleges it introduces new unapproved
activities which have not been agreed. I’m not sure that I follow why he
criticises that: what has the ‘agreement’ and ‘approval’ of activities got to do
with delay analysis?
He says the logic is designed to suit the Contractor’s case. In the case of the
impacted as-planned method, the logic comes from the Contractor’s original
programme. I agree that is difficult to justify.
He says it’s entirely theoretical: perhaps that’s right. He says it takes no

account of what actually happened. Yes, that is right. He says it ignores the
Contractor’s culpable delay. I would say it buries the Contractor’s culpable
delay.
In terms of the as-built-but-for, he says (and Alastair Farr for the Contractor
says the same): it is far too complex.
The difficulty that we’re often faced with is that we are confronted with
complex projects and people try to over simplify the effect of delays. They
invent headlines. They do not look at the facts.
The as-built-but-for method, I contend, is far less complicated or complex than

either the as-planned impacted or the time-impacted methods, because the
critical path that is derived from the as-built programme enables the relevant
events to be identified, and the ‘chaff’ ignored. (‘Chaff’ in a slightly different
sense from the one that I used it earlier, because there it was limited to the
items that were in the example.)
He says it relies on the Contractor’s records. Now, if you bash into somebody
else’s car, you know that you are going to be responsible. So you will do what
you can to make sure the other chap doesn’t take you for a ride.
The Employer bashes into the Contractor’s car when he delays him. When he
does this, the Employer knows he’s going to be faced with a bill, and to turn
round at the end of the day and say ‘I did not keep any records’ is a criticism
of his own team, not the Contractor’s.
But he criticises it because it relies on the Contractor’s records. In today’s

environment with QA records, there’s limited scope for playing ‘silly
whatsits’ with Contractor’s records.
He says it’s impressionistic logic. But the logic comes from what actually
happened. You can’t invent logic to suit something that did not happen.
43
He says it conceals the effect of the Contractor’s delays. I would like to see
that illustrated, because concealing the effect of Contractor’s delays is not easy
in a competent as-built analysis.
He say’s it’s disproportionate. With respect, nowadays we’re getting massive

LAD figures: I had one recently where LADs were of the order of £100,000
per week (which works out at £2,500 per hour), yet people demand the
analysis on one side of a sheet of paper. It will not work.
In relation to time impact analysis, it’s referred to as being complex and

disproportionate. With respect, I disagree. Effective delay management is
priceless.
I’d like to turn now to what I believe to be the fundamental difference between
both the impacted as-planned and time impact methods and the as-built. The
essential difference between them is that the first two are based on the
Contractor’s programme. They utilise predicted activities, predicted
relationships and predicted durations. And so is it any wonder is that what
you get at the end of the day is a result that is based on assumptions? Both of
those methods do have a place, particularly time impact, but their place is in
the context of delay management not delay analysis.
44
RESPONSE OF THE ADJUDICATOR’S
ADVISER
Keith Pickavance
In order to understand why the different methods of analysis provide different

answers, we need first to understand what the Contractor, Employer and
Engineer are in fact doing rather than what they say they are doing. Let us
first consider the Employer’s as-planned versus as-built solution.
As-planned versus as-built

As-planned versus as-built is not impact analysis: it is causation by inference.
Basically this method follows the process of finding an effect (a delay to
progress), asserting a cause for it, which is at the other side’s risk, and then
inferring that the delay to completion is caused by the delay to progress found.
That is all there is to it – see Figure 33.
Figure 33: As planned versus as built - causation by inference
What are the problems with this method?

1. It is easy to manipulate to suit the preferred case (as here).
2. It is unrelated to the critical path. Indeed, a critical path is not
necessary. All this is done with bar charts. The fact that the
programme has a critical path in this case is irrelevant, it has not
been used.
3. It cannot deal effectively with concurrency, which has been
ignored.
4. It cannot deal with acceleration or re-sequencing.
45
In summary it is a straight forward ‘what do you want me to say caused the

delay?’ type of analysis.
As –planned impacted
Impacted as-planned is a real impact analysis process, but it is a static process
based on a planned intent. The as-built programme is not used, so this
analysis gets rid of all the as-built facts (including evidence of Contractor’s
slippage).
Figure 34 illustrates that the method starts with the planned programme; a
causal event is identified and added to the planned programme. The critical
path is then recalculated to identify the impact of that event on the planned
sequence of work and on completion.
Figure 34: Impacted as-planned analysis
What are the problems with this method?

1. It is a static method based on a single base line that does not
change, notwithstanding that the Contractor’s baseline did change
as it progressed.
2. It takes no account of the Contractor’s slippage for which the
Contractor is itself liable. In fact it basically says: ‘whatever I did,
I am not to blame, it is only what you did to me that counts’. But
that is not what the contract says.
3. It is difficult to deal effectively with concurrency, which it did not
address.
4. It cannot deal effectively with acceleration or re-sequencing, which
in this case it also did not address.
46
Collapsed as-built analysis

The collapsed as-built method used by the Engineer is another true impact
method. It is also a static method in that it is also based on a single baseline.
However, in this case it is a baseline not based upon the planned programme
but reconstructed from the as-built records of what actually happened. The as-
planned programme is ignored. In this process, the as-built records are
converted to a critical path by inferred logical predecessors to activities;
delays to progress are identified and a cause attributed; the duration of the
delay to progress ascribed to the cause is subtracted from the network and the
critical path recalculated.
Figure 35: Collapsed as-built analysis
Figure 35 illustrates that if the critical path (and hence the completion date)
then changes, the event ascribed to the delay is said to cause the delay to
completion so calculated.
What are the problems of using this method?
1. The critical path must usually be inferred. The logic by which one
activity preceded another in whole or in part is not usually in
evidence, and it is not in evidence in this case. It has been dreamt
up by the Engineer. In this case the critical path is very simple. He
has probably got it right but it has not come from the facts
available. Generally, what the logical predecessors and successors
are is a matter of opinion – on a subject on which there will often
be many other different but equally valid opinions, each leading to
a different result.
2. The conversion from the as-built records to a network programme
fit for analytical purposes is often difficult and time consuming.
3. It is difficult to deal effectively with concurrency, which in this
case it did not.
47
4. It cannot deal effectively with acceleration or re-sequencing, which

in this case were not addressed.
Time impact analysis

In this case the factual evidence includes a critical path planned programme
and as-built records, and there is prima facie evidence of concurrency,
acceleration or re-sequencing. It is thus not possible to arrive at a satisfactory
answer to the question of what caused delay to completion with anything other
than a time impact analysis which uses all that factual evidence and deals
effectively with those issues.
A true answer to the question of what is the Contractor’s entitlement cannot be

achieved by any other method. The advantages of time impact analysis are:
1. The effect is measured from the cause, as opposed to the cause
being inferred from the effect.
2. It deals with all the facts, not just those that are convenient to a
party’s case.
3. Cause and effect are transparent; each event can be traced
throughout the course of the job. Hence this method can be used to
identify precisely when losses were actually suffered and whether
there was any true concurrency. No other method of analysis can
do this.
In summary, it is a method which is often criticised as being complex and

expensive. These criticisms are often levelled against the method by those
who want to conceal the facts that are inconvenient to their case. If all that is
required is something quick and cheap in defiance of the facts of the case, my
advice is to flip a coin: it is as likely to achieve the same measure of justice as
any of the other ‘methods’ that adopt inference from partial facts – and it is
cheaper and quicker than any of them.
On the other hand, if you want justice based on all the available evidence, use
time impact analysis.
48
EPILOGUE
Professor Anthony Lavers
Julian Critchlow notes in his introduction that, ‘delay is one of the commonest
causes of construction disputes and also one of the most difficult to evaluate.’
It is indeed this combination of routine occurrence and complexity which has
made delay a preoccupation in the construction industry and the legal
profession which serves it. Because it is such a preoccupation for so many of
its members, it is desirable that SCL cater for it. This has happened, and
continues, in a number of ways.
The most obvious way in which SCL has participated in the process of dealing
with delay issues is through the publication of the Delay and Disruption
Protocol.9 Published on 16th October 2002, the Protocol was drafted by a
group of experienced professionals (a combination of engineers, solicitors,
quantity surveyors and an architect) several of them dual-qualified. Setting
out a body of suggested core principles, guidance on preparation/maintenance
of programmes and records, and guidance on dealing with extension of time
issues both during and after completion, the Protocol has attracted widespread
interest.
Not all of the attention the Protocol has received has been laudatory. Not
being a member of the drafting committee or otherwise involved in its
production, I had no proprietorial feelings to be hurt by criticisms of it. But I
must confess to having been at least mildly surprised by the scathing, if not
intemperate, language adopted by some of its critics. Anyway, the substance
of many of their points, if not always the tone, is to be welcomed as
contributing to the debate, as are the many supportive articles and comments
received. My view of the Protocol now is what it has been throughout, that it
offers a very significant, probably unique contribution to the discussion of
delay problems; equally, that it cannot hope to resolve them all. The number
of registrations recorded on the dedicated website at the time of writing is just
under 12,000, eloquent testimony to the interest generated and a reward for the
hard work invested by the drafting committee.
SCL also promotes study and discussion of delay issues through its
programme of lectures and presentation of papers. Remarkably, during the
four years 2002-2005, no fewer than 17 lectures have been given by 14
different speakers, in London, Edinburgh, Manchester, Oxford, Sheffield,
Bristol, Derby and Cork and to our sibling societies in Singapore and
Malaysia. This amounts to something over 10% of the entire SCL talks
programme, and is only partly to be explained by the attention paid to the
Protocol. Delay has also been a strongly recurrent theme in the entries for the
annual SCL Hudson Prize essay competition. Australian lawyer Adrian Baron
9 See note 1.
49
took first prize in the 2001 competition with his piece on penalty clauses,10
while Hamish Lal was joint second with an essay on extensions of time;11
since then two more delay-based entries have received awards.12
So it can be seen that SCL has provided many opportunities to study and
discuss the problems of time in construction contracts. If one theme can be
said to underlie all (or most) of the outputs, it is the inherent uncertainty of the
mechanisms for evaluating delays and apportionment of the cost
consequences. John Marrin QC’s paper Concurent Delay highlights the
problem in the context of concurrent delay.13 John Marrin takes the
hypothetical example of the construction of a UK shopping centre, where an
overrun of one month has occurred on a 12 month contract. Given that the
causes of the delay are on the one hand extra work ordered by the architect,
and on the other the carrying out of the remedial work necessary to correct the
contractor’s defective workmanship, (ie two causes assumed to be ‘of
approximately equal causative potency’) John Marrin inquires whether, under
the JCT 1998 Standard Form of Building Contract,14 the following results
would occur:
o The contractor would be granted a month’s extension of time;
o The contractor would be entitled to a month’s worth of
prolongation costs;
o The employer would be entitled to a month’s worth of liquidated
damages.
The short answer is that under English law there is no simple authoritative
right answer and in the paper John Marrin is obliged to consider five possible
ways in which the matter could be approached. These are, in brief:
apportionment, the ‘American’ approach, the ‘but for’ test, the ‘dominant
cause’ approach and the Malmaison approach.15 16
10 Damages in the shadow of a penalty clause–– tripping over policy in the search for logic
and legal principle, Adrian Baron, 101, Society of Construction Law, April 2002,
downloadable from www.scl.org.uk.
11 Extensions of time: the conflict between the ‘prevention principle’ and notice
requirement as a condition precedent, Hamish Lal, 103, Society of Construction Law,
April 2002, downloadable from www.scl.org.uk.
12 The doctrine of penalties and the ‘absurd paradox’, Hamish Lal, 113, Society of
Construction Law, Mary 2003 and ‘Completion’ is the key to liquidated damages: but
what is completion? John Nestor, D48, Society of Construction Law, May 2004.
13 Concurrent Delay, John Marrin QC, 100, Society of Construction Law, February 2002,
downloadable from www.scl.org.uk.
14 Standard Form of Building Contract, Private with Quantities, 1998 edition, The Joint
Contract Tribunal Ltd.
15 The last deriving its name from Henry Boot Construction (UK) Ltd v Malmaison Hotel
(Manchester) Ltd [1999] 70 ConLR 32, QBD (TCC).
16 See also further papers published by the Society, Delay and disruption: Legal
considerations, Stuart Nash, D14, August 2002; Putting the SCL Delay and Disruption
Protocol into Practice – is it what the industry wants? Keith Pickavance, D52,
September 2004 and A Little of Time at Large, Keith Pickavance and Wendy
MacLaughlin, 127, October 2005, all downloadable from www.scl.org.uk
50
A stranger to the industry advised of the frequency of occurrence of delay
problems might be excused for assuming that at least the technical analysts
would have done better than the lawyers in perfecting a single definitive
model to be used for routine analysis. Such a stranger would be bemused by
the table included in the Protocol which shows the principal types of analysis
available to demonstrate the effect of the different factors upon delay, shown
in Figure 36.
Type of analysis as-planned networked updated as-built

programme as-planned as-planned records
without programme networked
network programme
as-planned versus
X or X and X or X
as-built
impacted as-planned X
collapsed as-built X
time impact X or X and X
Figure 36: The principal types of analysis available
This, of course, is the background to the Great Delay Analysis Debate in

which the Society joined with the Centre of Construction Law & Management
at King’s College to try to illustrate the comparative merits and deficiencies of
the respective methods and the results they would each lead to.
For me and many other members of the large audience to whom I have
spoken, the debate was fascinating. The four experts presented the options
with skill and clarity. Alastair Farr (representing the Contractor) argued for
the impacted as-planned analysis of the events, which would not only free the
Contractor from liability for liquidated damages, but would give rise to a
substantial delay and disruption claim and could ground an acceleration claim.
Opposing this on behalf of the Employer, Steve Briggs adopted the as-planned
versus as-built method, which showed the Contractor to be in serious trouble
and obliged to accept full responsibility for the delay. John Hammond, acting
as the Engineer, agreed neither with Alastair Farr nor Steve Briggs; he
proposed to resolve the dispute using the as-built but-for test. This left neither
party satisfied and so the matter was referred to adjudication. The
Adjudicator’s advisor, Keith Pickavance, favoured the use of the time impact
method of analysis.
The process was instructive, and sometimes entertaining, but the greatest
significance for me was the results. The audience rejected the motion ‘This
house considers that the time impact method is the most appropriate for the
analysis of delay in construction disputes.’ However, when the audience was
51
asked in turn which of the four methods offered they favoured, none could
command a clear majority and each had a committed band of supporters.
While it is accepted that this was only an academic exercise, two points struck
me, and others, with some force. First, one of the most influential writers and
practitioners in the field, Keith Pickavance, twice failed to secure even a bare
majority in favour of time impact analysis (although a second vote on the
motion after further argument showed a decreasing vote against the method).
Second, in an audience of around 300, including some of the UK’s leading

experts in delay analysis, nothing approaching consensus could be found as to
the correct methodology; indeed, the vote was split into four significant
minorities.
It is hardly necessary to emphasise the difficulty which this is capable of

causing. Parties are likely to adopt the methods which best suit their
respective positions, which is a recipe for conflict between at least two
approaches; in multi-party disputes it could well be more.
The effect must be an increased volume of disputes, and even worse

uncertainty as to their outcome. This benefits no-one; not the contractors who
embark upon costly claims without being certain that they will even recoup
their expenses, not the owners who do not know whether they should pay up
or fight and not the adjudicators, arbitrators and judges who have to decide
between inconsistent approaches often equally deficient in authority.
The Delay and Disruption Protocol has not been able to banish this
uncertainty, although it has been widely welcomed as a contribution to the
debate.
The Great Delay Analysis Debate has been a reminder that there is still much
to do before delay analysis can be undertaken as a matter of routine according
to an established method. It has also been an excellent illustration of the
propensity for conflict which still weighs down the construction industry.
52
THE AUTHORS
Dr Julian Critchlow LLB, MSc is a partner of Fenwick Elliott solicitors.

He lectures on matters relating to construction law and arbitration and has
produced numerous published articles. He is author of Making Partnering
Work in the Construction Industry (Chandos (Oxford)); joint author (with
Professor Rob Merkin) of Arbitration Forms and Precedents (LLP); joint
author (with Keith Pickavance and Nick Gould) of the Change Management
Supplement; contributor to the Construction Law Handbook (Thomas
Telford); contributor to Law for Construction Professionals (Croner); former
joint editor (with Paul Darling QC) of Construction Law Newsletter (LLP);
and an arbitration editor of Amicus Curiae (the journal of the Society for
Advanced Legal Studies). He is a tutor on the MSc course at King’s College
London and a Commissioner of the Foundation for International Commercial
Arbitration. He also acts as an arbitrator, adjudicator and mediator.
Alastair Farr LLB, MCIArb, barrister (non-practising) is Regional

Director of Trett Consulting, covering London, the South and East Anglia. He
has 20 years experience in preparing and defending delay claims across
various disciplines including building, civil engineering, structural
engineering, mechanical and electrical engineering, offshore, and oil and gas.
Over this time he has acted for employers, contractors, subcontractors and
developers, and has also been appointed as expert witness. He has extensive
experience of most forms of dispute resolution, including ADR, and has acted
as party representative in numerous adjudications.
Steve Briggs DipArb, FCIArb, MAE, MAPM is an Associate Director

and Head of Planning at Brewer Consulting. He has over 18 years experience
of acting as expert witness on time related issues in both arbitration and
litigation, and has given evidence on a number of occasions. His background
is cross-industry. Following a two-year spell in the Navy he trained as an
engineer in shipbuilding, then in 1974 moved to the oil and gas industry where
he worked for 12 years, starting as an engineer and later becoming a project
manager. He joined Trett Consulting in 1986, and since then he has worked
extensively in dispute resolution in construction, building, civil engineering,
petrochemical and process plant projects, as well as in the strategic planning
of infrastructure and facilities projects both internationally and in the UK. He
has written and presented a number of articles on programming matters such
as the ownership of float, the preparation of standard methods of
programming, and the use of ICT in the preparation of claims.
John Hammond MCIOB, MCMI is a consultant delay analyst with a

background in management and planning. He has more than 15 years’
experience in the development and use of network analysis for the resolution
of disputes and the preparation of reports for negotiation and formal
determination. He is the author of a number of published articles and book
reviews in the technical press, and contributed to discussions during the
drafting of the SCL Delay and Disruption Protocol. During the past 15 years
53
he has progressively refined established as-built but-for techniques, using
standard software, one variant of which now enables non-critical delays to
progress to be identified and disregarded where delay to completion is the core
issue, thereby helping to reduce the complex claim to one of manageable,
triable, proportions.
Keith Pickavance LLB, DipArch, DipICArb, RIBA, FAE, FCIOB

is a Director of Pickavance Consulting Ltd and Senior Vice-President of Hill
International. He practices world-wide as an arbitrator, adjudicator and expert
in delay-related disputes and as a consultant in the pro-active management of
time-related risks of development. His professional background is that of a
chartered architect but in 1974 he took an honours degree in law at the
University of London and in 1996 was awarded the Diploma in International
Commercial Arbitration by the Chartered Institute of Arbitrators. He is also a
TeCSA registered adjudicator. He has been admitted as an International
Associate of the American Bar Association. He is the author of Delay and
Disruption in Construction Contracts (3rd edition, 2005) and was a member of
the drafting committee of the SCL Delay and Disruption Protocol.
Professor Anthony Lavers LLB, MRICS, MCIArb, PhD divides his

time between the London office of US law firm White & Case, where he
works in the Construction and Engineering Practice Group, and Keating
Chambers, where he is Director of Research. He is also Visiting Professor of
Law at Oxford Brookes University. He read law at University College,
London, where he won the Joseph Hellyer Faculty Moot Prize. After
obtaining an MPhil at Southampton University, he taught at Portsmouth
Polytechnic (now the University of Portsmouth) for four years and at the
National University of Singapore for three years. He obtained his PhD in
Singapore in 1988 for a thesis on professional negligence in the construction
and property professions. After a year’s post-doctoral work as Visiting
Scholar at Wolfson College Cambridge, he became Senior Lecturer in Law at
Oxford Polytechnic and then successively Reader in Law (1990) and Professor
of Law (1995) at Oxford Brookes University. During this time, he was
consultant to London law firms Fishburn Boxer (1989-93) and Barlow Lyde
and Gilbert (1996-2001). He is the Chairman of the Society of Construction
Law (2004-2006).
© Individual authors and the Society of Construction Law 2006
The views expressed by the authors in this paper are theirs alone, and do not
necessarily represent the views of the Society of Construction Law or the editor.
Neither the authors, the Society, nor the editor can accept any liability in respect of
any use to which this paper or any information or views expressed in it may be put,
whether arising through negligence or otherwise.
54
‘The object of the Society
is to promote the study and understanding of
construction law amongst all those involved
in the construction industry’
MEMBERSHIP/ADMINISTRATION ENQUIRIES
Jackie Morris
67 Newbury Street
Wantage, Oxon OX12 8DJ
Tel: 01235 770606
Fax: 01235 770580
E-mail: admin@scl.org.uk
Website: www.scl.org.uk
55

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THE GREAT DELAY

A series of papers first presented by the

Society of Construction Law, in association with the

Centre of Construction Law & Management,

King’s College London,

at King’s College on 18th October 2005

Dr Julian Critchlow, Alastair Farr,

Steve Briggs, John Hammond, Keith

Pickavance and Professor Anthony Lavers

Centre of Construction Law & Management, King’s College London,

first presented the series of papers that follow to a capacity audience

in the Great Hall at King’s College on 18th October 2005.

The Great Delay Analysis Debate was a spirited contest, based on

a typical construction scenario; the protagonists presented divergent

views, basing their arguments on different delay analysis methodologies.

THE GREAT DELAY

The Contractor’s response

The Employer’s response

The Engineer’s response

Response of the Adjudicator’s adviser

The authors ............................................................................ 53

Hard copies of this document can be purchased

Furthermore, even where record keeping is strong, establishing critical delay is

The importance of these issues is recognized in the Society of Construction

A view was subsequently expressed that a permanent record of the

The delay scenario

The construction contract

Under the contract the Contractor bears the risk of:

If the Contractor is caused delay by:

The planned programme

Information necessary for the commencement of the fabrication of

The as-built programme

Figure 2: The as-built programme

Summary of the facts

The following is an executive summary of the facts:

5. On 23rd March the Employer determined that there had been an

Figure 3: The site diary and progress records

The as-planned programme

Figure 4: The as-planned programme

The as-planned impacted method

For these reasons, we say that it is a perfectly acceptable and recognised

The Contractor’s claim

Our claim is for the following delays:

Exceptionally inclement weather and setting out

Figure 5: Impacted programme - exceptional weather and setting out

Incorrect setting–out information

Late reinforcement details

We have impacted the programme (see Figure 6) by changing the milestone

Figure 6: Impacted programme - late release of rebar schedules

The impact of Admix

On 18th March we were instructed not to proceed with an applied finish. On

Figure 7 - Impacted programme - change of Admix

Using the as-planned versus as-built method

The as-planned versus as-built method

Figure 8: As- planned compared to as-built activity durations

The as-planned programme

Figure 9: Contractor's as-planned programme

The as-built programme

Figure 10: Causes of differences between as-planned and as-built

Summary and conclusions

My analysis, which compares the Contractor’s as-planned programme with the

Figure 11: Summary effect of causative events

In my view the Contractor has no entitlement to an extension of time and,

The first step is to find out what actually happened. Typically, it is by

In order to reconstruct the effect of events affecting progress, the inter