Online Training Programme

for Empanelment of
Arbitrators
QUASI LEGAL
TRAINING MODULE

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2018 RICS
RICS
 Programme, Extension of
Time and Basic Principles
of Delay Analysis

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2020 RICS
RICS DRS
Aim

This session will acquaint the participants with the concept

of a project schedule and the critical path, the elements of
delay analysis and concurrency, and the basic principles of
extension of time.

© 2020 RICS DRS

Broad Scope
• Importance of Contract programme and updates

• Concept of Float and its Ownership, Significance of Critical Path and its determination

• Concurrent Delay, Parallel Delay and Pacing

• Overview of Delay Analysis Methods

• Purpose and Procedure of Granting Extension of Time

© 2020 RICS DRS

Learning Outcomes
• The First Session will familiarise the participants with the importance of a construction programme in delay
analysis.

• The Second Session will clarify concepts such as float and critical path and explain why the concepts are
important to determine the parties’ liability for delay, or entitlement to time extension.

• The Third Session will acquaint participants with the principles of concurrency in delay events, and the
related concepts of parallelism, pacing and sequential delays.

• The Fourth Session will familiarise the participants with the various methods used in delay analysis and
explain the circumstances in which they could be useful to determine entitlement to extension of time and
compensation.

• The Fifth Session will clarify the purpose of granting extension of time for completion of a project, and
briefly explain the procedure for the award of an extension of time.

© 2020 RICS DRS

 Session 1 Importance of Contract
programme and updates

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Important Terms
• Critical delay: A delay that is responsible for extending project duration is a critical delay.

• Non Critical delay: A delay that is not the cause of extended project duration is a non-critical delay;
however, it will have an effect in terms of activities getting completed late than scheduled completion.

• Excusable & Compensable delay: May be entitled to Extension of Time (EOT) and Cost

• Excusable & Non compensable delay. Only EOT

• Non Excusable delay: No EOT. No Cost. But Liquidated Damages levied.

© 2020 RICS DRS

Important Terms
• Time is of essence: When time is the essence in construction contracts the standard rule is that the parties
have agreed to perform their obligation as per the time specified in a contract and there shall not be any
extension of time. Whereas, if time is not the essence of the contract, the court allows the parties to a
contract perform at some other time than agreed upon.

• Time at Large: Where there is a provision of Extension of Time and the date of completion is over but when
no Extension of Time is granted, there is no time fixed for completion. Time is at large. Meaning?

• Global Claim: “A global claim is one in which the Contractor seeks compensation for a group of Employer’s
Risk Events but does not or cannot demonstrate a direct link between the loss incurred and the individual
Employer Risk Events.” The Society of Construction Law (SCL) 2nd Edition Delay and Disruption Protocol

• Project Float: “ Project Float is the length of time between the contractor’s forecast early
completion and the contract required completion.” (AACE)

© 2020 RICS DRS

Importance of Planning and Scheduling

WBS (What) Specification

Work Breakdown s (How)
Structure

CBS (How Much) OBS (Who)

Cost Organizational
Breakdown Breakdown Structure
Structure

SCHEDULLING

© 2020 RICS DRS

Importance of Planning and Scheduling

What is the Importance of Planning & Scheduling?

• Schedule is the conversion of a project action plan into an operating timetable

• Basis for monitoring a project

• One of the major project management tools

• Work changes daily, so a detailed plan is essential

• Most of the scheduling is at the WBS level, not the work package level

• Most of the scheduling is based on network drawings

• Helps in delay analysis and evaluation of Extension of Time

© 2020 RICS DRS

Importance of Planning and Scheduling

What does Scheduling Involve?

A series of tasks and steps designed to help manage the time constrains of the project. It involves:-

• Defining the Schedule

• Publishing or Communication the Schedule

• Monitoring the Schedule

• Updating the Schedule

www.pm4dev.com

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Gantt Chart

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Variable durations

How a planner would schedule Joel’s journey home.

City Hall Commonwealth Plan:

27 mins
6 mins (500m) 13 mins (SMRT) 8 mins (750m)

Mon Tues Wed Thur Fri Ave:

26 mins 33 mins 27 mins 28mins 27 mins 28 mins

© 2020 RICS DRS

Activity durations

The duration for Joel’s journey can be expressed over 3 points.

Mon Tues Wed Thur Fri
26 mins 33 mins 27 mins 28 mins 27 mins

Min Max Most likely

© 2020 RICS DRS

Importance of Contract programme
Baseline programme
• If Indicative programme. Non-contractual, non binding-how work will be carried out or it can impose
obligations to deliver the works in a certain way and by certain dates.
• Contractual programme. If included in the list of contract documents- it will become binding on the
parties. Which portions? Dispute avoidance?
• Represents the contractor’s approach to execute the contract scope prior to the project commencement
date.
• Basis: Resources and planned productivity rates for all types of work as a benchmark for any future
claim.
• Contractor aware of expectations and can same impose on sub-contractors
• Owner may lay down key deliverable dates-better control over priority activities and progress-release fronts.
• Owner bound providing the contractor with site access, design documents and decisions on time to allow
the contractor to commence the next phase of the works- failure-contractor entitle to compensation.
• Multi party complexity
• Restricted flexibility in operations of contractor and owner…

© 2020 RICS DRS

Updating the Baseline programme
• Dynamic Nature: Construction projects by their nature are very dynamic and subjected to changes
compared with the original plans and assumptions.

• Nature of changes: A construction project could face many changes when it comes to the construction
phase such as but not limited to unforeseen soil conditions, delay to engineering and procurement
deliverables, adverse weather conditions, political issues, changes to scope of work.

• Status of changes: All parties such as employer, contractor, supervision consultant and any relevant
stakeholders are always keen to have accurate status reports of the project performance and to be
updated to envisage changes or delays to the original plan.

• Frequency as per contract: Project programme should be continually updated or revised whenever
required, in accordance with the frequency stated in the contract documents, to reflect the current site
conditions and constraints.

© 2020 RICS DRS

Importance of Contract programme
Programme updates: Purposes
• to determine the actual physical progress achieved compared to planned

• provide a complete and accurate record of the actual progress compared with original plan

• often a contract requirement and may be required for payment purposes (in case of lump-sum price
contracts)

• identifies the changes to the critical path and identifies out-of-sequence activities, which may require an
adjustment to the plan for completing the remaining work and

• predicts a more accurate completion date as of the date the project status is measured.

• measure the impact of change to the work and any changed methods or sequences of performance.

• programme updates should consider the impact of any disruption event which affects the efficiency of the
resources required to complete the work and thus increase the duration of the affected activity or group of
activities due to such disruption.

© 2020 RICS DRS

Importance of Contract programme
Programme updates: Purposes
• the project manager gets the opportunity to assess the impact of changes or unforeseen events and
implement timely remedial measure if required in order to mitigate/avoid the impact of such changes or
unforeseen events.
• when documenting a project’s history, a delay analysis could be easily performed to identify the causes of
delays, measure the contribution of each party to such delay and accordingly the impacts can be
calculated. When updated properly, the final updated schedules can be relied upon as an as-built schedule.
• If the anticipated completion date gets shifted beyond the contract completion date after completing the
programme update due to the contractor’s risk events, then the contractor is responsible to take all
necessary actions to bring back the completion date to the contractual completion date.
• in case of contractor’s failure to mitigate its delays, such delay is not compensable and the contractor will
have to bear damages or liquidated damages unless the contractor’s delays occur concurrently with the
employer’s delay.
• In all cases, the contractor is obligated to mitigate the impact of any risk event regardless of the
owner of the risk events and show what actions have been taken to mitigate such delays.

© 2020 RICS DRS

Importance of Contract programme
Revised programmes
• However, if the nature of delays are excusable, a Revised baseline programme would become
necessary.
• Major changes: Frequent scope changes and the delays which can occur during the execution phase, the
approved baseline programme becomes misleading and needs to be revised from time to time to
incorporate the changes, revise logic and sequence of work and to incorporate the mitigation measures.
• The interval of the programme revision depends mainly on the volume of changes received during the
period and validity of the construction sequence of work along with the current site conditions and
constraints.
• The revised program should be developed from the latest updated schedule including all the delays,
scope changes to that point of time and the proposed mitigation measures. In result the project
completion date may go beyond the contractual completion date.
• As the project completion date extends beyond the contractual completion date, the revised programme
will not be approved by the engineer/employer until the related extension of time claim is approved. The
engineer could give conditional approval only for progress monitoring purpose or sometimes delay the
approval requesting additional information and substantiations.

© 2020 RICS DRS

Importance of Contract programme
Revised programmes
• In general, the approval of extension of time claim by the employer is a very time consuming process and
normally takes four to six months and sometimes the extension of time will be granted only at the time of
expiry of the original contractual completion date.
• Thus in order to avoid or minimize the conflicts in measuring delay, it is preferable to update the baseline
programs simultaneously in the case that revised programs are approved for progress monitoring purpose
only.
• The contractor should submit the baseline and revised program updates to the employer or his
representative to see exactly how the delays are affecting the project execution.
• Although it is difficult to measure the delays on the baseline program updates (when there is revised
program in force with current logic and sequence of work), this will help the contractor to ease out some
of the problems until the revised programs are approved.

© 2020 RICS DRS

Work Breakdown Structure
Lev Schedule
Level
el 0
0 Project Summary
Proj Summarised by
• Project Phase
ect • Project Keydates
Pha

FOR MANAGEMENT
< 15 activities
se/
KD 1 Contract Summary
(<1 Summarised by
• Contract Phase
5
<150 activities
acti
Level
viti 1
es) Phase
Contract
(<150 activities)
2 Project Key/Milestones Dates/Phases
Summarised by
• Keydates
Level 2 • Contract Milestones

<150 activities
Contract Keydates/ Milestones
(<150 activities)
3 Project Major Items
Summarised by
Level 3

CONTRACTOR’S SUBMISSION
• Contract Major Items
• Summarisation from Level 4
Contract Major Items summarized from activities

Level 4 (< 300 activities) <300 activities

4 Project Baseline Critical Path Method

Network
• Cost-loaded and Resource-loaded
activities (Not to be defined as
Level 4 hammocks)
• Critical Path to be identified
Contract Baseline CPM Network (< 5,000 activities) • Logic to follow method of
construction
With cost and resource loaded activities <5,000 activities
(Cost-Loaded)

Level 5 5 Working Program

WORKING PROGRAM
• Detailed work sequence for day-to-
day operation
Working Level Program breakdown from Level 4 for site usage (> 5,000
<5,000 activities
activities) (Cost-Loaded)

© 2020 RICS DRS

Schedule Quality
Performance measured DCMA Metric
Pass Criteria
The percentage of incomplete activities that do not have a predecessor or
Logic successor. 5%
The percentage of relationships in the project with negative lags.
Leads 0%
The percentage of incomplete activities that have schedule lags assigned to their
Lags relationships 5%

Relationship Types Start- to-Start (SS) or Finish-to-Finish (FF)

10%
Finish-to-Start relationships (FS) 90%
‘Hard’ Constraints Number of date restraints that constrain scheduling engine.
5%
High Float Percentage of activities with Total Float > 44 days. 5%
Negative Float The percentage of activities with a Total Float < zero (0) days.
0%
High Durations Durations greater than 44 days. 5%
Invalid Dates Actual start or finish dates beyond the Data Date 0%
Resources Activities without resource allocation N/A
Missed Activities Activities that failed to start or finish on-time 5%

© 2020 RICS DRS

Preparation of CPM schedule:
Elements: Effective schedule What?

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 Review Importance of
Programmes/Schedules
Standard Forms of
Contracts

(Annexure 1)
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 Session 2 Concept of Float and its
Ownership, Significance of
Critical Path and its
determination

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Float
How long an activity can be delayed before it affects is successor?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15
A
1

A2

A3

A4

A3 delayed by 6 days
Has no effect of A4

© 2020 RICS DRS

Float
How long an activity can be delayed before it affects is successor?

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

A3

A3 delayed by 7 days
Now drives A4. It had 6 days float.

© 2020 RICS DRS

Float
Float as contingency?

• “In budgets: an “allowance for contingencies”, through “contingency account”, to often a simple
“contingency” amount–setting aside for uncertain costs or unknown risks in project scopes.

• “A “schedule contingency” exists as an explicit setting-aside of time to address uncertain durations or

risks in project schedules.”

(Merriam Webster)

• “an amount of time included in the project or program schedule to mitigate (dampen/buffer) the effects
of risks or uncertainties identified or associated with specific elements of the project schedule.
Schedule contingency is not float (i.e. neither project float* nor total float). (AACE)

© 2020 RICS DRS

Ownership of Float

“If completion . . . is delayed beyond its available ‘float’ time,

then it becomes a critical path item on which further delay
shall delay the project completion . . . (and) becomes
important who has a right to control this ‘float’?”

© 2020 RICS DRS

Critical Path and Float
Ownership of Float

• As with many construction issues, the ownership of the float is a matter which can be clearly settled by
a specific contract provision.

• The discretion to use float time is something a contractor should consider bargaining for in the
contract.

• Where the contract is silent, however, established legal principles suggest that the discretion to
use the float lies with the contractor.

• However, failing a clear allocation of this resource or even worse facing a contract document
allocating float to the owner, the contractor should consider preparing his schedule to show minimal
float so that he can exercise greater control over his work activities.

© 2020 RICS DRS

Critical Path and Float
Ownership of Float: Owner?

• If the owner retains control of the float, then he would have the right to delay any work item and
consume the “float” without incurring any liability to the contractor for the resulting additional expense
of performance or for additional contract time.

• Any use of the “float” by the contractor is at his own peril since it would belong to the owner. If
neither party has exclusive use of the “float:’ then either could consume all or part of the slack on a
first come first served basis without responsibility for delay to the other.

• However, Under as in case of clause 23.1 of JCT Contract IF the employer is entitled to
completion on or before the Completion Date so the employer is ultimately entitled to the benefit
of any unused float that the contractor does not need.

• Similarly under the provisions of any contract if the Contractor is entitled to bonus for early
completion, it would tantamount to prevention by Employer, if he used the Float which may delay
completion and deprive the contractor of bonus….!!

© 2020 RICS DRS

Critical Path and Float
Ownership of Float: Contractor?

• Should the contractor own the float, then he can control the time and sequencing of work items not on
the critical path.

• Any delay or disruption of that activity by the owner could entitle the contractor to compensation for
any additional costs of delaying performance of that event even though it does not delay completion
of the project.

• Where the contractor caused delays occurred on items which did not lie on the critical path, the
necessary implication is that the contractor had the right to delay those items to the extent of their
“float:’ and thus that the float was his.

• The other principle is the rule that a contractor has the right to finish a project early, and may
recover damages if the owner delays his planned early completion date — even if the project still
meets the contractual completion date.

© 2020 RICS DRS

Float
Who owns the float?

• Contractor would like to argue that since they have built-in the ‘float’ into the programme of works-they
have the right to use it to accommodate its own risk.

• Owner would like to argue the ‘float’ belongs to him.

• A third view: It belongs to the Project. To be shared or belongs to the first party that utilises it.

• Such differing arguments have been put before the courts of law and decisions of the courts shed
some light on this question as to who owns the ‘float’……

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 Review How Courts have
Interpreted it?

(Annexure 2A)

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Critical
Manage the Works’ critical path

© 2020 RICS DRS

Significance of Critical Path and determination
Determination of Critical path in construction schedule

• Critical Path is the longest sequence of tasks in a project plan that must be completed on time in
order for the project to meet its deadline-any delay in any task on the critical path-delays whole
project.

• It identifies tasks that are critical, time-wise, in completing the project.

• Although many projects have only one critical path, some projects may have multiple critical paths.

• An approach to project scheduling that breaks project into several work tasks, displays them in a flow
chart, and then calculates the project duration based on estimated durations for each task.

© 2020 RICS DRS

Preparation of CPM Schedules: Varieties
Historical Perspective

• PERT was developed for the Polaris missile/submarine project in 1958

• CPM developed by DuPont during the same time

• Initially, CPM and PERT were two different approaches: CPM used deterministic time estimates and
allowed project crunching while PERT used probabilistic time estimates.

• Microsoft Project (and others) have blended CPM and PERT into one approach

• PDM (The precedence diagram method)- A tool for scheduling activities in a project plan-a project
schedule network diagram that uses boxes, referred to as nodes, to represent activities and connects
them with arrows that show the dependencies. It is also called the activity-on-node method (AON) of
Critical Path Methodology.

© 2020 RICS DRS

Preparation of CPM Schedules: Varieties
Types of CPM Networks:

• PERT applies an “Activity-on-Arrow” network diagram

• Activity-on-Arrow means the network diagram depicts each milestone event as a node, and shows
the activity information on the arrows joining each milestone event.

• Precedence Diagrammatic Diagram (PDM) is an “Activity-on-Node” network diagram.

• Activity-on-Node shows the activity information as a node, and links one activity to the next, rather
than linking one milestone to the next.

© 2020 RICS DRS

Significance of Critical Path and determination
Definition and Types of Float
• Those activities with Total Float=0 are those for which ANY delay will cascade directly to delay of the
project – this is the Critical Path.

Common Types of Float

• Total Float (TF):
The amount of time that a schedule activity can be delayed or extended from its early start date
without delaying the project finish date or violating a schedule constraint.
• Late Finish – Early Finish = Total Float or Late Start –Early Start
• Free Float (FF):
The amount of time that a schedule activity can be delayed without delaying the early start
date of any successor or violating a schedule constraint.
• Earliest Successors’ Early Start – Activity’s Early Finish = Free Float

© 2020 RICS DRS

Preparation of CPM Schedules: PDM
Step by Step

• Step 1: List out activities in logical sequence. Some are sequential and some are simultaneous.
Sequential activities have preceding and succeeding activities. Estimate duration based on
resources/previous experience. Tabulate them

• Step 2: Draw Network of above using activities in Nodes (boxes).

• Step 3: Forward Pass: Starting with First activity fix Early Start date (ES). Add duration and fix Early
Finish (EF) date. Early Start date of next activity will be Early Finish date of previous activity. If
more than one activity is converging in a Node use HIGHER value. Repeat the process till the last
activity.

• Step 4: Backward Pass: Starting with Last activity fix Late Finish date (LF) which will be same as ES.
Subtract duration and fix Late Start (LS) date. Late Finish (LF) date of next activity will be Late Start
(LS) date of previous activity. If more than one activity is converging in a Node use LOWER value.
Repeat the process till the First activity.

© 2020 RICS DRS

Preparation of CPM Schedules: PDM

DURATIO
N
ES-EARLY START ES EF
EF-EARLY FINISH A
LS-LATE START LS LF
LF-LATE FINISH

© 2020 RICS DRS

Preparation of CPM Schedules: PDM Network

Source: Project Cubicle, Kathy Feb 2018

© 2020 RICS DRS

Preparation of CPM Schedules: PDM Network

Source: Project Cubicle, Kathy Feb 2018

© 2020 RICS DRS

Preparation of CPM Schedules: PDM Network

Source: Project Cubicle, Kathy Feb 2018

© 2020 RICS DRS

 Session 3 Purpose and Procedures of
Extension of Time (EOT)

Session 4 Overview of Delay Analysis

Methods

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 Purpose and Procedures of
Extension of Time (EOT)

© 2020 RICS
Purpose of EOT
• Contractor: Benefit-EOT relieves 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.

• Employer: Benefit-EOT for the Employer- 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.

© 2020 RICS DRS

EOT Mechanism
Generally, the EOT process include:

Entitlement Claim CA Assessment ADR

© 2020 RICS DRS

EOT entitlement

The contractual or legal basis Entitlement

The factual basis

Show the event, delayed the Works’ progress and prevented the Contractor
from achieving the time for completion (delay analysis) Claim

© 2020 RICS DRS

Legal Basis to an EOT
• Event must be an Employer risk event as set-out in the contract

 What is a events entitle the Contractor to an EOT?

© 2020 RICS DRS

Delays and Disruption
Contract provisions – examples of relevant events

• Variations
• Instructions from the Architect / CA / SO
• Deferred Possession of Site
• Inaccurate Approximate Quantities
• Suspension of the Works if Client fails to pay
• Exceptionally Adverse Weather
• Impediment, Prevention or Default by Employer
• Civil Commotion
• Strikes, Lock Out
• Force Majeure

© 2020 RICS DRS

Notices
Notice requirements and time-bar

• Contracts require the claimant to serve notice as a pre-requisite of a claim.

• Great importance should be placed on this notice and its associated contract clause; particularly, as it
may be a condition precedent to the EOT mechanism’s operation.

• Notice clause often contain timescales for compliance – be aware, failure could mean being time-
barred!

© 2020 RICS DRS

Notices: condition precedent?
What if a notice clause is a condition precedent?

• If a notice clause is a condition precedent, the Contractor will lose its right to bring the claim if the
notice is not issued in full accordance with that clause.

• A clause can still be a condition precedent, even if it has ambiguities (Steria Ltd v Sigma Wireless
Communications Ltd)

• Even if a notice clause does not appear to be a condition precedent, it does not mean a Contractor
can disregard its notice obligations. (London Borough of Merton v Stanley Hugh Leach)

© 2020 RICS DRS

Notices: what is a notice?
What form should the notice take?

Compliance with a notice clause is clearly essential. Need to consider:

• What matters need to be notified?

• How much detail needs to be given?
• What type of evidence needs to be with the notice?
• When does the notice need to be given?
• The form of notice: oral, or written? If written, does it need to be given in a special or agreed format?
To which address does it need to be sent.
• How often (if at all) does the notice need to be up-dated?
• To whom should the notice be given: the employer, CA, lenders or any other interested parties?

© 2020 RICS DRS

Grant of Extension of Time (EOT)
Procedures

• The different methods that are used to prove delays, as explained in industry standards and
handbooks, are theoretical and could be applied in the small simple projects with few numbers of
activities but the same methods cannot easily be applied on mega/complex projects.
• When any degree of complexity in the project is examined, it becomes more difficult for the project
team to record the delays and disruption events properly because they are always busy dealing with
the site issues and other project pressures.
• Mega Projects and Interfaces: Most such project face delays and disruptions especially the
mega/complex projects of today.
• Time consuming and complicated: thousands of activities, interfaces and numerous stakeholders.
Require Primavera Software Support.
• To be successful, a time extension claim or disruption claims contractors should adequately establish
causation and liability and assist in demonstrating the extent of time-related damages experienced
as a direct result of the delay events relied upon.

© 2020 RICS DRS

Grant of Extension of Time
Delay and cause and effect relationship

• In order to have a successful claim, the contractor should define causation, liability, and damages
related to each risk event.

• Liability is always defined within the contract documents which state in detail the obligations of each
party.

• It also requires the demonstration of the cause–effect analysis for each risk event, i.e. one which is
an employer’s liability “the cause” and the resulting “impact” on the contractor’s ability to carry
out the project works “the effect”.

© 2020 RICS DRS

Identification of Casual Event
Proving, Assessing or Rejecting Claims: Practical Steps

Project participants to collect and maintain evidence during the delivery phase of a project in addition
to preparing current construction programs updated on a periodic basis:

• prepare and maintain record of events relevant to potential delay claims;

• update site diary precedents so that they require the identification of delay events and affected
successor activities; and
• if project economics permit, engage construction surveillance officers to record delivery phase
progress and delay and disruption events (including by written notes and time-stamped photographs).
• In a claim for delay damages for breach of contract, assessed by reference to common law
principles: Extension of time, delay costs and disruption claims that are made under sophisticated
construction contracts will be influenced by the precise language used in the relevant provisions,
including perhaps the degree of causation and the kind of proof required.

© 2020 RICS DRS

When Completion prevented?
• The SCL Protocol approach The general principle used by the SLC Protocol is that provided one of the
causes of delay in any given situation affords grounds for extension of time under the contract, then the
contractor should be given a time extension notwithstanding any default on his part.

• The approach supports the prevention principle that states a person asking another to do something
cannot insist upon a condition if it is his own fault that the condition has not been fulfilled. Therefore,
denying the contractor a time extension in such circumstances could make him liable to the payment of
damages even though the project would have been delayed anyway due to employer’s default.

© 2020 RICS DRS

Delay Analysis methods

© 2020 RICS DRS

Methods of Delay Analysis
Predictive
• Impacted As-Planned
• Time Impact Analysis

Retrospective (Forensic)
• Collapsed As-Built
• Time Slice “Windows”
• As-Planned versus As-Built

Word of Caution
• Because the existing delay methodologies are based on CPM schedules, the resource load and
constraints are relevant aspects often disregarded during the application of a delay analysis
technique
• These factors may influence the final outcome of the analysis since the project completion time can be
affected by resource availability. ...
(Ibbs and Nguyen 2007;Braimah 2013).

© 2020 RICS DRS

Impacted-As Planned Analysis
Predictive

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Time Impact Analysis
Prospective

Adds delays or changes to the schedule which are updated up to the day before the delay occurred. The
Purpose of the Analysis:

• To determine whether the overall completion date of the project is delayed, or remains the same as a
result of the delays;

• To demonstrate a Contractor’s entitlement to a time extension;

• To demonstrate a potential schedule acceleration;

• To demonstrate an Owner’s entitlement to receive liquidated damages.

© 2020 RICS DRS

Time Impact Analysis

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Time Slice Window Analysis
Retrospective

• Focuses on comparing as-planned, updated and as-built project schedules to identify and quantify
delays to the critical path of the project.

• Analysis uses the project schedule updates to quantify the slippage to the critical path during a select
period of time;

• Once all critical path activity delays have been quantified, the origins and causes of each delay are
determined.

• The responsibility for each delay is then apportioned to either the Contractor, Owner, a third party,
if appropriate, and to force majeure or other excusable delays defined by the contract.

© 2020 RICS DRS

Time Slice Window Analysis

© 2020 RICS DRS

Collapsed As Built
Retrospective

Determines the earliest date that the project completion date, or a required milestone could have been
achieved but-for the owner-caused / contractor-caused delays that occurred during the project. The
Purpose of the Analysis:

• To determine the compensable time extension by taking into account the concurrent delay situation;

• The Collapsed As-Built Analysis that removes contractor-caused delays is used to determine the
time period between the actual completion date and the Collapsed As-Built completion date for
assessment of liquidated damages by the owner.

© 2020 RICS DRS

Collapsed-As Built

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As Planned-As Built

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Appropriate Delay Analysis Method

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 Case Study Delay Analysis and EOT

(Annexure 4)

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 Case Study Discussion
Determination of Critical
Path Schedule

(Annexure 2)

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 Session 5 Concurrent Delays, Parallel
Delays and Pacing Delays

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Interrelationship of Delays
• Independent delays are delays that occur in isolation or without other consecutive or simultaneous
delays.

• Serial delays occur in sequence consecutively and not overlapping with each other on a particular
network path.

• Concurrent delays refer to two or more delays in which either their time of occurrence or their effects
overlap.

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Concurrent Delays
The Concept

• Concurrent delay issue on most construction projects.

• Both events must independently cause an actual critical delay to the progress of the works.

• “the effects of which are felt at the same time” (SCL Delay and Disruption Protocol 2nd Edition,
February 2017).

• True concurrency under English law is therefore quite rare.

• Always depends on the contract.

• Most contracts do not clearly stipulate how the issue of concurrent delays is to be dealt with

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“True” Concurrency
• There is no single generally accepted definition of concurrent delay. A narrow definition of concurrent
delay is ‘true concurrency’:

• “where the employer and contractor delay events occur at the same time and cause a delay to
progress for the same period sharing the same start and finish dates, either of which, in the
absence of the other, is likely to cause the same delay to the completion of the works.”

• If the owner-caused and contractor-caused delays are concurrent and of equal duration, and if they
equally affected the critical path to project completion, the contractor would not be entitled to
compensable delay damages and the owner would not be entitled to its actual delay or liquidated
damages.

www.fticonsulting-asia.com; what is concurrent delay

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Concurrent Delays
Definition of Concurrency

• The issue arises where a project has not been completed on time because of two or more
delaying events that operate at the same time—one of the delaying events is the responsibility of
the project owner and the other is the responsibility of the contractor. Both events are on
CRITICAL PATH. Example:

• An owner instructs a contractor to undertake additional work via a change order: parties
acknowledge that completion of the project will be delayed because of the extra work.

• However, at the time of carrying out the additional work, the contractor has deliberately reduced
its labour resources for reasons unrelated to the variation but, in the event the delay caused by
the additional work and the insufficient resources run concurrently and delay completion of the
project by one month.

• Because the additional work (owner caused delay) would have delayed the project anyway,
contractor’s delay has not contributed to it. Hence the latter will be entitled to EOT. As regards lost
time due to reduction of labour, Contractor has to catch up by increasing resources to catch up…

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Concurrent Delays
Apportionment of Concurrent Delay

• The question to be answered is, WHO is responsible for the one-month delay to completion of the
project and WHAT is likely impact?

• Option 1: The contractor? The owner will be entitled to claim its delay-related damages, which are
usually in the form of liquidated damages. Or

• Option 2: The owner? If so-subject to terms of the contract between the parties, the contractor will
be entitled to EOT and relieved from liquidated damages. But may also recover its delay-related
losses, such as prolongation, disruption, and acceleration costs.

• Option 3: To be shared between both contractor & owner? Upon what basis is this determined?

• Despite the prevalence of concurrent delays on construction projects, there has been a dearth of
judicial guidance in Commonwealth jurisdictions on how to resolve the vexing question of
responsibility.

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Concurrent Delays: Courts?
Consequences of Concurrent Delay

• Time: “if there are two concurrent causes of delay, one of which is a relevant event, and the other
is not, then the contractor is entitled to an extension of time for the period of delay caused by the
relevant event, notwithstanding the concurrent effect of the other event”.

[The ‘Malmaison approach’ (Henry Boot v Malmaison. See also De Beers UK Ltd v Atos Origin IT Services UK Ltd; Walter Lilly &
Co Ltd v Giles Patrick Cyril Mackay and DMW Developments Limited).

• Money: “…where there is concurrent delay to completion caused by matters for which both employer
and contractor are responsible, the contractor is entitled to an extension of time but he cannot
recover in respect of the loss caused by delay…the contractor cannot recover damages for delay
in circumstances where he would have suffered exactly the same loss as a result of causes within his
control for which he is contractually responsible”

• General Rule: EOT but not compensation

(SCL Delay and Disruption Protocol)

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Definition: Concurrency
Two respected sources

• “the expression ‘concurrent delay’ is used to denote a period of project overrun which is caused by two
or more effective causes of delay which are of approximately equal causative potency”.

(John Marrin QC, ‘Concurrent Delay’, SCL paper 179 (February 2013) & Keating, note 3, para 8-025 and adopted in Adyard Abu
Dhabi v SD Marine [2011] BLR 384 and others.)

• “situation where two or more delay events arise at different times, but the effects of them are felt (in
whole or in part) at the same time”

(Society of Construction Law. October 2002, Reprint October 2004. The Society of Construction Law Delay and Disruption
Protocol)

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Concurrency: Example 1

Day 1 – Fire one starts

Fire one reaches house first

Day 2 – Fire two starts

Day 3

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Concurrency: Example 2

Day 1 – Fire one starts

Fire two reaches house first

Day 2 – Fire two starts

Day 3

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Concurrency: Example 3

Day 1 – Fire one starts

Fires cross paths and merge

Day 2 – Fire two starts

Day 3

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Concurrency: key elements
In summary, concurrent delay requires:

• No less than two delay events, one of which is an Employer risk and one a culpable delay;

• Both must impact the Time for Completion; and

• Both must have ‘equal causative potency’.

“It has been pointed out that true concurrency in this sense will only arise in exceptional factual
situations”.

(Keating, note 3, para 8-025.)

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 Review Concurrency and Extension
of Time: How Courts have
Interpreted it?

(Annexure 3)

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Concurrent Delays
Relief and compensation

• Concurrent delays occur when both parties bear some of the responsibility for the construction delays
or when there are multiple delays that occur during the same time period.

• Where, because both parties are at fault, most courts find that neither party is entitled to monetary
compensation unless the contractor can segregate the portion of its delays from those that are
attributable to the employer risk events.

• In those circumstances, however, most courts will add time for the completion of the project.

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Concurrent Delays
Relief and compensation

• Whether such delays are excusable and compensable depends on:-

 the terms of the contract

 the cause of the delays

 the timing and duration of the delays

 the party or parties responsible for the delays and

 the availability of float (contingency time in critical path analysis that allows the non-critical activity
or activities to be delayed beyond its planned date without impacting the project completion date).

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Concurrent Delays and EOT
Effect of Concurrent Delay

• True concurrent delay is the occurrence of two or more delay events at the same time, one an
Employer Risk Event, the other a Contractor Risk Event, and the effects of which are felt at the
same time.

• For concurrent delay to exist, each of the Employer Risk Event and the Contractor Risk Event must
be an effective cause of Delay to Completion (i.e. the delays must both affect the critical path).

• Where Contractor Delay to Completion occurs or has an effect concurrently with Employer Delay to
Completion, the Contractor’s concurrent delay should not reduce any EOT due.

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Parallel Delay
• “…..where just one party (say the employer) is liable to the other (say the contractor) for more than one
cause of the same delay.

• “Where parallelism occurs, two or more causes of delay will be at the employer’s risk, for which one of
the causes may give the contractor entitlement to both an extension of time and loss and expense, and
the other an entitlement to an extension of time only.

• An issue arises therefore as to whether the contractor is entitled to:

 an extension of time only; or

 an extension of time and loss and expense?

• Where the contract does not set out the parties’ position in such a situation, then the loss will lie
where it falls, in this case upon the contractor.

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Pacing Delay
• A situation which may appear to be concurrent delay-an employer causes delay to the construction of
a project and the contractor then decides to reduce its resources for part or all of the delay period
knowing that its rate of progress can be slower than planned without causing any further delay to
that caused by the employer. (SCL Protocol)
• “deceleration of the work of the project, by one of the parties to a contract, due to a delay caused by
the other party, so as to maintain steady progress with the revised overall project schedule.”
Examples:
• Contractors may adjust the pace of their work in light of delays in:
 owner-furnished equipment

 delays by other multiple prime contractors

 delays in permits

 limited access or differing site conditions.

• Owners may slow down their response time to requests for information or submittals, or
postpone the delivery of owner-furnished equipment or the processing of change orders.

Zack, Pacing Delays–The Practical Effect, Construction Specifier 47, 48 (Jan. 2000).

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 Review Extension of Time And
Standard Forms of Contract

(Annexure 5)

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RICS DRS
 Session 6 Demonstration Disruption

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RICS DRS
Disruption
• A Disruption is loss of productivity, disturbance, hindrance or interruption to a Contractor’s normal
working methods, resulting in lower efficiency.

• Disrupted work is work that is carried out less efficiently than it would have been, had it not been for the
cause of the disruption.

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Productivity

 
𝑂𝑢𝑡𝑝𝑢𝑡
𝑃𝑟𝑜𝑑𝑢𝑐𝑡𝑖𝑣𝑖𝑡𝑦=
𝑇𝑖𝑚𝑒

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Disruption analysis methods

Total Cost
Modified Total Cost

Certainty/acceptance
Industry studies

Comparison/Sampling studies

Earned Value Analysis

Measured Mile
Baseline Productivity
Systems Dynamics

Records/Expertise

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Disruption analysis methods
Productivity Loss

Project
Y Records N
sufficient?
Physical units
periodically N Industrial Studies
N
recorded? available?

% of work
Y periodically N
recorded? Y

Non-impacted
period
statistically Y Sampling studies Cause
important? adequate? compatible with
study?

Y N
Contractor and
Employer Y N
disruption?
Specific industry General industry
Study Study

Y N

Baseline productivity
Measured Mile Earned Value Total Loss

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“Measured Mile” - Background
• Suggested by Zink (1986)

• Not a specific method – more a concept

 No clearly agreed approach

 Caution / independence required in analysis

• Significant research done following Zink

• Subtle nuances to be appreciated

• Now a generally accepted approach

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What are we measuring?

Loss of productivity
Productivity during

Units / Hours
normal working

Productivity during
disrupted working

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The “Measured Mile”

Start Up

Measured Mile
Productivity
Units / Hours

Impacted
period
Un-impacted
Period

Time Close down

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“Measured Mile” - Considerations
• Collection of records – data and WBS

• Work should be similar to work affected

• Should have comparable skill levels

• Consider supervision levels

• Working environments need to be similar

• Look at Productivity not Production

• Consider eliminating start and finish 10%

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Challenges with implementing a “Measured Mile” analysis
• Difficult with unique and complex work

• Where disruption is very pervasive

• Where a clear measured mile cannot be established

• Significant changes in environment

• Rapid increases in overtime and sub-contractors

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Overtime

Production

Overtime ordered

Time

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Additional Labour

Production

Additional labour

Time

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Rework

Production

Rework

Time

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Out of sequence work

Production

Out of sequence work

Time

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Overall?

Production

Time

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 Conclusion

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2020 RICS
RICS DRS
REFERENCES
Construction Delay Claims, Third Edition, Barry B. Bramble & Michael T. Callahan, 1999
Society of Construction Law, Delay and Disruption Protocol (2nd ed, 2017)
Construction Delays: Documenting Causes, Winning Claims, Recovering Costs, Theodore J. Trauner, 1990
Construction Scheduling: Preparation, Liability, and Claims, John M. Wickshire, Thomas J. Driscoll, Stephen B. Hurlbut, 2008
Delay Analysis in Construction Contracts, P. J. Keane & A. F. Caletka, Blackwell Publishing, 2008
CPM in Construction Management, Seventh Edition, Fredric Plotnick & James O’Brien, 2009
Proving and Pricing Construction Claims, Robert F. Cushman, 2000
Recommended Practice No. 29R-03, Forensic Schedule Analysis, AACE International, 2007
Performing a Time Impact Analysis in Construction, Juan Rodriguez Aug 2019
Performing Impacted As Planned Analysis in Construction, Michael Lepage, JAN 2018
SCHEDULE DELAY IN CONSTRUCTION PROJECT USING TIME IMPACT ANALYSIS, ENAS FATHI TAHER1 & R. K. PANDEY2 , INTERNATIONAL JOURNAL OF CIVIL,
STRUCTURAL, ENVIRONMENTAL AND INFRASTRUCTURE ENGINEERING, DEC 2013.
General Conditions of Contract, CPWD, New Delhi (2019)
General Conditions of Contract, MES (IAFW 2249)
FIDIC Conditions of Contract for Construction for Buildings and Engineering Works Designed by the , Employer, Second Edition 2017, ISBN 978-2-88432-084-9
NEC Engineering Construction Contracts
JCT Contracts Complete 2016 Edition
Project Planning, Scheduling & Control, Lewis, James P. 2001 New York: McGraw-Hill.

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 Thank You

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