Concurrent!delay!–In!Simple!Terms...Delay!Analysis!is!not!about!P6:! • P6!is!justaplanning!tool.! • P6!is!acomputer!model,!it’s!notthe!physical!works!outon!the!ground.!! Delay!Analysis!should!be

Concurrent delay – In Simple Terms

Tuesday 18th October 2016 DCC, Doha

Andrew Woodward

[email protected]

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Discussion to outline: •  A discussion around the contenAous topic of concurrent delay. •  What is Concurrent Delay? •  How can it be IdenAfied? •  And what does it mean?

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Concurrent Delay – In Simple Terms

Typical issues in the GCC include: •  Projects procured in a hurry – scope incomplete at the outset – playing catch-‐up.

•  40% of construcCon scope ill-‐defined – extended ‘Provisional Sums’. •  Change flowing from incomplete scope and a lack of decision making:

•  lack of design, lack of approval, lack of third party requirements. •  VOs provided late or not provided at all.

•  Lack of empowerment – the PMC not the decision maker. •  Third party interference – Lack of permits, uAliAes etc. •  Culture:

•  A deal’s a deal, where Contractor’s deemed responsible for everything. •  Strategy to defer agreements to beyond the comple?on date.

•  Contractor Poor Performance – Lack of resource, lack of engineering, error-‐strewn delivery, poor quality etc.

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ConstrucCon Projects – Issues at Hand

What does this all mean?

•  Projects faced with significant overruns: •  Contractor facing cash shor@all and threat of penal?es. •  Employer facing late handover – 100% overruns not uncommon.

So in the interim, what does the Contractor do?

•  The Contractor makes his claims: •  The Contract Agreement (CA) compels him to make claims. •  Claims made in the interim – project on-‐going. •  Main Claims typically for EOT and Prolonga?on Cost.

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ConstrucCon Projects – The ParCes Steps

In reply to the claims, what does the Employer do? •  Engineer/Employer considers the claims:

•  PMC will consider the claim. •  Focus usually on events that can be accepted. •  Conten?ous or uncomfortable events put to one side. •  PMC makes recommenda?ons to Engineer/Employer.

•  Offer made to the Contractor for an Interim EOT: •  Time offered for accepted events. •  Time offered with no Cost – So, condi?onal offer ?

•  ProlongaCon Claim Rejected: •  Reason – Claim not dealt with issues of ‘Contractor Concurrent Delay’.

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ConstrucCon Projects – The ParCes Steps

From the Contractor’s point of view: •  Cost and Ame pressures – project account in the red. •  Claims made for cost and Ame – believed to be made reasonably? •  The CA imparts a sense of urgency – the Ame bars, but •  The Engineer takes months to reach a decision – unreasonable? •  Contract says negoAate but Employer goes for his most favourable opAon? •  Decision to award Ame comes with no cost – viewed as bad faith?

From the Employer’s Point of view:

•  Arguments and claim only deal with Ame – So, what’s the big deal? •  Contractor ‘perceived’ to be performing poorly, so why should the Employer

compensate for that poor performance. The ‘Contractor Concurrent Delay’.

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Why is this ContenCous?

So, What is Contractor Concurrent Delay?

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Concurrent: •  [Things] occurring or exisAng simultaneously or side by side. •  AcAng in conjuncAon; cooperaAng. •  Having equal authority or jurisdicAon. •  Tending to or intersecAng at the same point. Concurrency: •  AcAng together, as agents or circumstances or events. Concurrence: •  CooperaAon, as of agents, circumstances, or events.

(merriam-‐webster.com)

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Start with DicConary DefiniCons

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Bridge Scenario

ExcavaAon Pre-‐cast Bridge deck Construct Abutments Install deck Complete landscaping

Longest Path

Delay Analysis is not about P6: •  P6 is just a planning tool. •  P6 is a computer model, it’s not the physical works out on the ground. Delay Analysis should be: •  Simple. •  Establishing what is the ‘Compelling Story’. •  A search for dominant or primary causes

– the CausaAve Potency. •  Based on a common-‐sense approach.

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Interim Delay Analysis – Before We Start

Walter Lilly & Company Ltd v Giles Patrick McKay Henry Boot (UK) Ltd v Malmaison Hotel (Manchester) Ltd SCL Delay and DisrupAon Protocol 2002

•  ExcavaAon – looks to be on Ame. •  Precast deck beams – started on Ame, prolonged, finished same Ame as Abutments. •  Abutments – started on Ame, prolonged, finished same Ame as Precast. •  InstallaAon – late start (driven by beams and abutments) and then becomes prolonged. •  Landscaping – Prolonged and swapped with Deck from being last item to complete. •  As of the Analysis Date – works remain incomplete.

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Interim Delay Analysis – Big Overrun, What Happened?


Overrun

Data Date

Non-‐CriCcal Delay

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Non-‐CriCcal Delay – a delay NOT HAVING an impact on the CompleAon date. A delay being parallel to the criAcal (longest) path: •  Landscaping started early (too early). •  Out of sequence – a miAgaAon? •  Prolonged but complete before the deck installaAon.

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Non-‐CriCcal Delay


Overrun

Data Date

CriCcal Delay

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CriCcal Delay


Overrun

CriCcal Delay – a delay HAVING an impact on the CompleAon date. A delay to an acAvity residing on the criAcal (longest) path. •  InstallaAon has become extensively prolonged. •  InstallaAon of deck has become a criAcal item and is now driving the compleAon date.

Data Date

Concurrent Delay

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Concurrent Delay

Concurrent Delay – some key guidance:

... Concurrent delay is used to denote a period of project overrun which is caused by two or more effecAve causes of delay which are of approximately equal causaCve potency.

(KeaAng on ConstrucAon Contracts, SCL, john Marrin ‘Concurrent Delay Revisited’)

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

(The Society of ConstrucAon Law Delay and DisrupAon Protocol 2002, guidance at 1.4.4)

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Concurrent Delay – In Simple Terms


Overrun

Concurrent Delay – two or more delays, one being Contractor AND one being Employer: •  Events acAng together – but not necessarily at the same Ame. •  Events coming together, converging – impact is merging. •  Events being IndisCnguishable in effect – cannot decide between the events. •  Equal CausaCve Potency.

Data Date

One Concurrent Delay containing two events

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Total CriCcal Delay for the Bridge Works


•  Delay X Concurrent Delay

Delay Y Delay X

•  Plus •  Delay Y

Cri?cal Delay

Data Date

Overrun equals:

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Liability

Note: Discussion so far has been about idenAficaAon of the delay.

Now what about Liability?

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Liability – CriCcal Delay


Overrun

•  Employer Event: •  Contractor receives both Time and Cost.

•  Contractor Event: •  Contractor receives nothing. •  Employer recovers his PenalAes.

Data Date

Delay Y

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Liability – Concurrent Delay (SCL Approach)


Concurrent Delay, being indisCnguishable between Employer and Contractor: •  Contractor receives ‘Cme but no money’:

•  Contractor gets ?me for the period of delay. •  Contractor does not get compensa?on. •  Employer cannot collect penal?es or damages.

Overrun

Data Date

Delay X

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Liability – Concurrent Delay (ApporConment Approach)


Concurrent Delay, being indisCnguishable between Employer and Contractor: •  Liability is ‘ApporAoned’ between the parAes:

•  Contractor gets some EOT and some Cost, but suffers some Penalty. •  Employer gives some EOT and some Cost, but recovers some Penalty. •  An equitable split?

Overrun

Data Date

Delay X

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Liability – Non-‐CriCcal Delay


•  Employer Event: •  Contractor enAtled to costs – disrupAon claim – but no EOT.

•  Contractor Event: •  Contractor receives nothing. •  Employer NOT enAtled to relief from his liability for Cost arising from his other

accepted delays.

Overrun

Data Date

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Summary

CriCcal Delay: •  Employer Accepted – Contractor to receive Ame and money. •  Contractor Accepted – Employer receives penalAes / LDs. Non-‐CriCcal Delay: •  Employer Accepted – Contractor enAtled to money (disrupAon claim) but no Ame. •  Contractor Accepted – Employer’s liability to ProlongaAon cost elsewhere is not reduced

by the presence of the Contractor non-‐criAcal delay. Concurrent Delay (delays indisCnguishable): •  Employer is denied the right to recover penalAes. •  Contractor is provided protecAon from penalAes, but •  Contractor is denied right to recover costs. •  Alterna?vely (in GCC) the liability may be ‘appor?oned’ between the par?es.

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Final Thoughts 1.   There is no such thing as a Contractor Concurrent Delay – it’s a Contractor Delay

acAng concurrently with and indisAnguishable from, an Employer Delay.

2.   Contractor must make his claims for both Cme and cost – must be reasonable, fact-‐based, sensible and consistent with common sense. •  Equally, the Employer should not demand nth levels of detail.

3.   For Concurrent Delays, Contractor gets Cme but no cost – the SCL Approach, •  But beware that GCC may allow ApporAonment approach to split liability.

(ArAcle 257 CompensaAon decreased if Creditor parAcipated in damage)

4.  If the Employer accepts a criAcal delay, he accepts liability for both Cme and cost. •  But should the Employer consider there are other delays that relieve him of his

liability to cost, it is for the Employer to prove. (ArAcle 211 of Law 13 of 1990 under the Civil and Commercial Procedure Law) (ArAcle 256 CompensaAon decreased if Debtor was not responsible for the delay)

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Concurrent delay – In Simple Terms

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Documents

Concurrent!delay!–In!Simple!Terms...Delay!Analysis!is!not!about!P6:! • P6!is!justaplanning!tool.! • P6!is!acomputer!model,!it’s!notthe!physical!works!outon!the!ground.!! Delay!Analysis!should!be