RICS professional guidance, UK Extensions of time · 2018-07-26 · 1 Introduction Delays occur on most construction projects, and always have done. At some point during a project,

RICS professional guidance, UK

Extensions of time1st edition

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RICS guidance note

Extensions of timeRICS guidance note

1st edition

AcknowledgmentsRICS would like to thank the following for theircontribution to this guidance note.

Technical author:

Christopher M Linnett FRICS, Christopher Linnet Limited

Co-authors:

Camilla de Moraes, K&L Gates LLP

Stephen Lowsley, Driver Trett

Matthew Smith, K&L Gates LLP

Working group:

Chair: Andrew Smith MRICS, Laing O’Rourke

John G Campbell, BAM Construction Limited

David Cohen, Amicus Development Solutions

Stuart Earl FRICS, Gleeds

Roland Finch FRICS, NBS

Christopher Green, Capita Symonds Ltd

William Hall MRICS, Lend Lease

Roy Morledge, Nottingham Trent University

Michelle Murray, Turner & Townsend plc

Michael T O’Connor, Carillion Construction Limited

Kevin Whitehead, McBains Cooper Consulting Limited

Alan Muse, RICS

Published by the Royal Institution of Chartered Surveyors (RICS)Parliament Square, London, SW1P 3AD, UKwww.rics.orgNo responsibility for loss or damage caused to any person acting orrefraining from action as a result of the material included in thispublication can be accepted by the authors or RICS.Produced by the QS and Construction Working Group of the RoyalInstitution of Chartered Surveyors.

ISBN 978 1 78321 085 5

© Royal Institution of Chartered Surveyors (RICS) November 2014.Copyright in all or part of this publication rests with RICS. No part of thiswork may be reproduced or used in any form or by any means includinggraphic, electronic, or mechanical, including photocopying, recording,taping or web distribution, without the written permission of RICS or inline with the rules of an existing licence.

Typeset in Great Britain by Columns Design XML Ltd, Reading, Berks

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Contents

RICS professional guidance.......................................... 1

1 Introduction................................................................ 3

2 General principles (Level 1 – Knowing)................... 42.1 Costs of delay...................................................... 4

2.2 Background to extension of time clauses........... 4

2.3 Extensions of time under standard forms ofcontract................................................................ 5

3 Practical application (Level 2 – Doing).................... 123.1 Submission of delay notices ............................... 12

3.2 Measurement of delay ......................................... 12

3.3 Methods of delay analysis................................... 12

3.4 Delay assessments using BIM ............................ 15

4 Practical considerations (Level 3 – Doing/Advising) ..................................................................... 164.1 Which method of delay analysis should be

adopted?.............................................................. 16

4.2 Strengths and weaknesses of delay analysismethods ............................................................... 17

4.3 Concurrent liability for delays.............................. 18

5 Summary..................................................................... 19

Extensions of time

ii RICS guidance note Effective date 10 February 2015

RICS professional guidance

International standards

RICS is at the forefront of developing internationalstandards, working in coalitions with organisationsaround the globe, acting in the public interest to raisestandards and increase transparency within markets.International Property Measurement Standards (IPMS –ipmsc.org), International Construction MeasurementStandards (ICMS), International Ethics Standards (IES)and others will be published and will be mandatory forRICS members. This guidance note links directly to andunderpins these standards and RICS members areadvised to make themselves aware of the internationalstandards (see www.rics.org) and the overarchingprinciples with which this guidance note complies.Members of RICS are uniquely placed in the market bybeing trained, qualified and regulated by working tointernational standards and complying with thisguidance.

RICS guidance notes

This is a guidance note. Where recommendations aremade for specific professional tasks, these areintended to represent ‘best practice’, i.e.recommendations which in the opinion of RICS meet ahigh standard of professional competence.

Although members are not required to follow therecommendations contained in the note, they shouldtake into account the following points.

When an allegation of professional negligence is madeagainst a surveyor, a court or tribunal may takeaccount of the contents of any relevant guidance notespublished by RICS in deciding whether or not themember had acted with reasonable competence.

In the opinion of RICS, a member conforming to thepractices recommended in this note should have atleast a partial defence to an allegation of negligence ifthey have followed those practices. However, membershave the responsibility of deciding when it isinappropriate to follow the guidance.

It is for each member to decide on the appropriateprocedure to follow in any professional task. However,where members do not comply with the practicerecommended in this note, they should do so only for agood reason. In the event of a legal dispute, a court ortribunal may require them to explain why they decidednot to adopt the recommended practice. Also, ifmembers have not followed this guidance, and theiractions are questioned in an RICS disciplinary case,they will be asked to explain the actions they did takeand this may be taken into account by the Panel.

In addition, guidance notes are relevant to professionalcompetence in that each member should be up to dateand should have knowledge of guidance notes within areasonable time of their coming into effect.

This guidance note is believed to reflect case law andlegislation applicable at its date of publication. It is themember’s responsibility to establish if any changes incase law or legislation after the publication date havean impact on the guidance or information in thisdocument.

1Effective date 10 February 2015 RICS guidance note

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Document status defined

RICS produces a range of professional guidance and standards products. These have been defined in the tablebelow. This document is a guidance note.

Type of document Definition StatusStandardInternational standard An international high level principle based standard

developed in collaboration with other relevant bodiesMandatory

Practice statement

RICS practice statement Document that provides members with mandatoryrequirements under Rule 4 of the Rules of Conduct formembers

Mandatory

GuidanceRICS code of practice Document approved by RICS, and endorsed by another

professional body / stakeholder, that provides users withrecommendations for accepted good practice asfollowed by conscientious practitioners

Mandatory or recommendedgood practice (will beconfirmed in the documentitself)

RICS guidance note (GN) Document that provides users with recommendationsfor accepted good practice as followed by competentand conscientious practitioners

Recommended good practice

RICS information paper (IP) Practice based information that provides users with thelatest information and/or research

Information and/or explanatorycommentary

2 RICS guidance note Effective date 10 February 2015

Extensions of time

1 Introduction

Delays occur on most construction projects, andalways have done. At some point during a project,particular parts of the works, or the works as a whole,will not progress as quickly as planned, with the riskthat the contractual completion date will not be met.Sometimes, the lack of progress will be due to eventsthat are the employer’s responsibility under thecontract; sometimes, the lack of progress will be dueto events that are the contractor’s responsibility.

For example, where traditional methods of procurementhave been adopted, most construction contractsprovide that delays caused by labour shortages or latedelivery of materials will be the responsibility of themain contractor (or the subcontractor under asubcontract agreement), while delays caused byvariations and/or the late provision of designinformation will be the responsibility of the employer (orthe main contractor under a subcontract agreement).

If a delay has been caused by an event that is theemployer’s responsibility, then in general, thecontractor will be entitled to an extension of time. Anextension of time defers the contract completion dateand thereby gives the contractor a longer period withinwhich to complete the works. In order to decidewhether a contractor is entitled to an extension of time,it is necessary to establish the cause of the delay andthe period of delay. In some cases this will be veryeasy but in many cases it will be very difficult and canbe controversial.

Few contracts expressly make the quantity surveyorresponsible for the assessment of an extension of timeclaim; the task more commonly falls on the architect,contract administrator, engineer or project manager.However, in practice, it is likely that quantity surveyorswill be asked at least to assist with the preparation orassessment of a delay claim. The quantity surveyor’sanalytical training and methods of working are well-suited to dealing with the complexities of delayanalysis.


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2 General principles (Level 1 – Knowing)

2.1 Costs of delay

If a project is delayed, it is likely that both the employerand the contractor will incur additional costs. Theemployer may incur additional finance costs and/or lostrent and/or additional fees for professional servicesand/or a variety of other additional costs. Thecontractor may incur additional costs of sitesupervision, site offices and facilities, site security,head office management and overheads, general planthire, insurance and other costs. The contractor’s delaycosts are sometimes referred to as ‘prolongation costs’or ‘time-related costs’.

In the vast majority of cases, the employer’s additionalcosts will be estimated, prior to tender enquiries goingout, and will be expressed in the contract as a rate for‘liquidated damages’. Damages are amounts awardedby a court as compensation for loss or injury sufferedby one party due to a breach of contract or breach ofduty by another party; liquidated damages are amountsfor damages that are ascertained and fixed in advance.

The benefit of having a set rate for liquidated damagesis that the parties know, in advance, the level ofdamages that will be applied in the event of a projectoverrun. This allows the contractor to assess risk, priorto submitting its tender for the works, and it allows theemployer to recover damages without having to go tothe time and trouble of proving the amount of damagesactually incurred.

Contractor’s additional delay costs are rarely (if at all)included as liquidated damages in a constructioncontract. This is because the contractor’s delay costsare generally more wide-ranging, more uncertain andmore variable than the employer’s costs. Therefore,most contracts provide express terms for theassessment and reimbursement of delay costs, whereappropriate, to the contractor.

In the standard forms issued by the Joint ContractsTribunal (JCT), and in many other forms of contract, thecontractor’s delay costs are referred to by the term‘loss and expense’. Delay costs in the NEC3Engineering and Construction Contract are valuedwithin ‘compensation events’.

In order to recover delay costs and/or to avoid liabilityfor liquidated damages, a contractor will generally have

to show that the delay was caused by events that arethe employer’s responsibility under the contract. Thecontractor does this by applying for an extension oftime under the contract.

2.2 Background to extension of timeclauses

The need for comprehensive extension of timeprovisions in construction contracts was illustrated byjudgments made in two cases: Holme v Guppy (1838) 3M&W 387 and Wells v Army & Navy Co-operativeSociety Ltd (1902) 86 LT 764.

The case of Holme v Guppy concerned the deductionof liquidated damages following late completion ofcarpentry and joinery works by Holme at Guppy’sbrewery in Liverpool. During the project, Holme hadhad some labour problems and Guppy thought it wasentitled to deduct liquidated damages at the rate in thecontract. At first instance, the court agreed with Guppy,but on appeal, the judgment was overturned. TheCourt of Exchequer held that Guppy was not entitled torecover the liquidated damages, because it had alsobeen responsible for delays to the works. In particular,it was found that Holme had been significantly delayedby Guppy’s masons and the late handing over of thesite, and that these delays had prevented Holme fromcompleting on time. The court referred to each of thesedelays as ‘an act of prevention’ and, in the absence ofan extension of time clause (or alternatively, a revisedcontract with a longer period provided for completion),it held that time was left ‘at large’. With time at large,the liquidated damages provisions were unenforceable.

In Wells v Army & Navy Co-operative Society, theparties’ contract included an extension of time clause.It was operated by the Army & Navy Co-operativeSociety (the employer) to give Wells (the contractor) anextension of time of three months to the completiondate. However, the project finished over a year late andthe Army & Navy Co-operative Society appliedliquidated damages, at the contract rate, to the balanceof the overrun period. Wells objected on the grounds


Extensions of time

that the extension of time clause only dealt with third-party delays and did not provide extensions due todelays caused by the employer or the architect.

The Court of Appeal found in Wells’ favour. It decidedthat delays had been caused by the employer (latepossession) and the architect (late drawings) and so atleast part of the cause of delay to the works was dueto acts of prevention by the employer. These acts ofprevention were not catered for in the extension of timeclause in the contract. Thus, it was held that theliquidated damages provisions were ineffective andcould not be applied to the delay period.

In the light of these cases, it is not surprising thatalmost all construction contracts now provideextension of time clauses and that these clauses arewide-ranging and comprehensive.

2.3 Extensions of time under standardforms of contract

This section considers the JCT Standard BuildingContract 2011, the NEC3 form of contract 2013, theInstitution of Civil Engineers (ICE) Conditions ofContract 2013 and the International Federation ofConsulting Engineers (FIDIC) contracts 1999.

2.3.1 JCT Standard Building Contract 2011

Adjustment of the completion date under the JCTStandard Building Contract 2011 is dealt with inclauses 2.26 to 2.29. These clauses are similar toclauses 2.16 to 2.19 of the JCT Standard BuildingSubcontract 2011.

2.3.1.1 Delay events

Under JCT forms of contract, the reasons why acompletion date may be adjusted are set out in a list of‘Relevant Events’.

The list of Relevant Events under the JCT StandardBuilding Contract 2011 includes

• variations

• instructions

• deferment of possession of the site

• suspension

• works by statutory undertakers

• exceptionally adverse weather

• civil commotion

• terrorism and strikes; and

• ‘any impediment, prevention or default … by theEmployer’.

2.3.1.2 Delay notices

Clause 2.27 of the JCT contract requires the contractorto give notice if and whenever it becomes reasonablyapparent that the progress of the works is being or islikely to be delayed. The notice must set out ‘thematerial circumstances’, including the cause or causesof the delay, and must specifically identify any eventthat is considered to be a Relevant Event. Thecontractor must also give particulars of the expectedeffects of the delay upon the completion date, either inthe original notice or in writing as soon as possiblethereafter.

2.3.1.3 Assessment

Under clause 2.28, the architect is required to considerany notice of delay given by the contractor and to fix anew (later) completion date if it is considered fair andreasonable to do so (a main contractor has similarobligations under clause 2.18 of the JCT subcontract).The architect must provide a written notice of thedecision about the delay as soon as reasonablypracticable, but in any event, within 12 weeks ofreceipt of ‘the required particulars’.

If the time period for a decision commences only once‘the required particulars’ have been received, thequestion arises as to what these particulars are. Thecontract does not provide an answer; no doubtbecause the type of particulars required are likely tovary from one case to another.

Sometimes, an architect’s request for further particularsof the delay can be vague or generic. On occasions,contractors have simply been told that a delay noticecannot be considered until a claim is provided showing‘cause and effect’.

It is suggested that where requests for furtherinformation are not clear, contractors should seekclarification. Otherwise, a great deal of time and effortmay be expended producing information that thearchitect or contract administrator finds to be of littleassistance.

If an extension of time is awarded by the architectduring the project, the period of the extension must bereviewed after completion of the works (clause 2.28.5).A review of the time originally awarded for an extensionof time must be made within 12 weeks of practicalcompletion.

Any revision to the extension of time decided uponafter this review must either confirm or increase the

Effective date 10 February 2015 RICS guidance note 5

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extension of time period, unless there has been anomission to the works that justifies a reduction. In otherwords, a review cannot ‘take back’ time that hasalready been awarded, even if subsequent events showthat the award was more generous than perhaps itmight have been. This provision may lead somearchitects or contract administrators to take aconservative view of any delay claim submitted by acontractor; however, such an approach is not justifiableunder the terms of the contract. An extension of timemust be ‘fair and reasonable’, not cautious orunderstated, pending a further review after completion.

2.3.1.4 Delay avoidance

Under clause 2.28.6.1, the contractor is required to

‘constantly use his best endeavours to preventdelay in the progress of the Works or anySection, however caused, and to prevent thecompletion of the Works or Section beingdelayed or further delayed’ and, under clause2.28.6.2, must ‘do all that may reasonably berequired to the satisfaction of the Architect/Contract Administrator to proceed with theWorks or Section’.

Subcontractors have similar obligations under clauses2.18.6.1 and 2.18.6.2 of the subcontract.

These clauses are considered in the RICS guidancenote Acceleration (2011), where it is suggested that thescope of such obligations should not be overstated. Aduty to ‘prevent delay’ and to proceed with the worksto the satisfaction of the architect or contractadministrator does not appear to impose a positiveduty on the contractor to accelerate progress or to takeany action that a reasonable and prudent contractorwould not ordinarily take.

2.3.2 NEC3 form of contract 2013

Unlike the JCT standard forms, the NEC3 form is notintended to be simply a standard set of contractconditions; it also seeks, as stated in page 3 of theNEC3 guidance notes, to be a ‘stimulus to goodmanagement’. To meet this aim, the NEC3 is far moreprescriptive about what each party should do and thetime by which this should be done.

Delay events are dealt with mainly in the first section ofthe contract (the ‘Core Clauses’), particularly at clause16 of section 1, and also in sections 3 and 6. Clause

16 deals with notices or ‘early warnings’, section 3deals generally with ‘time’, and section 6 considers‘compensation events’.

Other relevant clauses may be found in other parts ofthe NEC3 contract, including the ‘Main OptionClauses’, the ‘Secondary Option Clauses’ and the‘Contract Data’ section.

2.3.2.1 NEC3 terminology

The NEC3 contract is, according to page 2 of theNEC3 guidance notes, ‘written in ordinary language’and ‘as far as possible … only uses words which are incommon usage’, making it ‘easier to understand bypeople who are not used to using formal contracts andby people whose first language is not English’.However, a number of words and terms used in thecontract do require explanation. Definitions of termscan be found in the NEC3 guidance notes. The termsdefined below are of particular relevance to theassessment of delay.

• ‘Float’: this term is used in section 3 of the CoreClauses. It is defined as ‘any spare time within theprogramme after the time risk allowances havebeen included’.

• ‘Time risk allowances’: this term is defined asdurations allowed within programme activities tocover contractors’ ‘realistic’ risks. Time riskallowances cannot be used to off-set the effects of‘compensation events’.

• ‘Compensation events’: this term is defined as‘events which, if they occur, and do not arise fromthe Contractor’s fault, entitle the Contractor to becompensated for any effect the event has on thePrices and the Completion Date or a Key Date’.

The terms ‘prices’, ‘completion date’ and ‘key date’,used in the definition of ‘compensation events’, andother terms such as ‘others’, ‘access date’ and‘weather record’ are defined either in Core Clause 11.2(the second clause in the contract), one of the MainOption Clauses, or the Contract Data section of thecontract.

Under the NEC3 contract, ‘compensation events’ aresubject to a quotation procedure, which is set out inclause 62 of the Core Clauses. However, at page 75 ofthe NEC3 guidance notes it states that: ‘the term‘quotation’ is not the same as the normal use incommerce’. Therefore, at least in this instance, theNEC3 departs from ‘ordinary language’ and attributesits own, different, meaning to a word in commonusage.


Extensions of time

The definitions of terms provided above are from theNEC3 guidance notes. Note that only the definitionsfound in the contract itself can be used for legalinterpretation. The guidance notes point out thatdefinitions in the notes cannot be relied upon for legalinterpretation.


Like the JCT’s list of Relevant Events, the NEC3’s listof ‘compensation events’ (as set out in clause 60.1)that may entitle the contractor to more time to carryout the works, includes

• variations

• instructions

• deferment of possession of the site

• suspension

• works by others (which would include works bystatutory undertakers)

• unusually adverse weather; and

• events causing delay that neither party couldprevent or foresee (which would include civilcommotion, terrorism and strikes, if these are‘Employer’s risks’ under clause 80.1).


Under the NEC3, if there is a delay to the project thatcould have an impact on the completion date, an ‘earlywarning notice’ must be given, by either the contractoror the project manager, in accordance with clause 16.1.On receipt of such notice, the contractor or projectmanager may, by virtue of clause 16.2, instruct theother to attend a ‘risk reduction meeting’ to discuss theearly warning event. Clause 16.3 specifies what theparties must do at that meeting, including consideringhow the risk of delay can be avoided or reduced.However, at this meeting, consideration will not begiven to extending the period for completion of theworks. Changes to the completion date are dealt withas part of the ‘compensation event’ assessment underclause 61.

Clause 61.1 provides that the project manager isobliged to notify the contractor of any delay arisingfrom an instruction, at the time the instruction is given.If no notice is given by the project manager, thecontractor is required, by clause 61.3, to notify theproject manager of an event ‘which has happened orwhich he expects to happen as a compensation event’.

Under clause 61.3, the contractor has eight weeks frombecoming aware of the event to give notice of a

compensation event. If the contractor fails to givenotice within eight weeks, the entitlement to anextension of time (or change to the ‘Completion Date’)is waived (unless the project manager should havenotified under clause 61.1, but did not do so).

After receipt of a compensation event notice, theproject manager has just one week, under clause 61.4,to notify the contractor of his or her decision as towhether the event is a compensation event or not(although this short time period can be extended withthe agreement of the contractor). Failure by the projectmanager to comply with this provision entitles thecontractor to confirm the failure, at which point theproject manager has a further two weeks to reply. If noreply is made within this extended time period, thenotified event is deemed to be a compensation event.

2.3.2.4 Assessment

The NEC3 form adopts an entirely different approach tomost other forms of construction contract to theassessment of delays and revisions to the completiondate. The NEC3 procedure aims to have delays fullyand finally assessed at or around the time the delaysoccur, with this assessment not subject to review aftercompletion or at any other time (unless the assessmentwas expressly stated to be based on assumptions).Clause 65.2 expressly provides that an assessment ofa delay will not be revised even if a forecast uponwhich it is based is shown by later recordedinformation to have been wrong.

This prospective assessment of what impact a delayevent will have on the completion date must be basedon the current programme for the works. In order tooperate this procedure, the programme must bethorough and up-to-date. To meet these objectives, thecontract prescribes the requirements for the format ofthe programme and how often it must be updated.

Clause 31.2 requires that each programme must showthe following:

• the start date, access dates, key dates andcompletion date

• the planned completion

• the order and timing of the operations

• the order and timing of the work to be carried outby the employer and others

• the dates when the contractor plans to meet each‘condition’ stated for the key dates and tocomplete other work needed to allow the employerand others to do their work; and


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• the dates when the contractor needs:

– access to a part of the site, if later than its‘access date’

– acceptances

– plant and materials and other things; and

– information from ‘others’.

The programme must also show ‘float’, ‘time riskallowances’ and health and safety requirements andprocedures set out in the contract. In conjunction withthe programme, the contractor is required to provide amethod statement for each operation.

Producing this level of information at the outset andthen keeping it up-to-date may be considered to be atall order but, if extensions of time are to bedetermined once and for all, at or around the time theyhappen, then a high level of accurate information willneed to be immediately to hand.

The contractor’s latest programme must be approvedbefore it can become the document upon whichextensions of time are assessed. By virtue of clause31.3, the employer’s project manager must agree eachprogramme submitted by the contractor within twoweeks or, if he or she cannot agree a programme, mustinform the contractor of the reasons why.

Clause 31.3 prescribes the reasons why a programmemay not be accepted. These are as follows:

• the programme is not practicable

• the programme does not provide all the necessaryinformation

• the programme is not realistic; and/or

• the programme does not comply with the ‘WorksInformation’ (as defined in Core Clause 11.2).

It is probably rare for a project manager confidently toassert that a contractor’s programme is impractical orunrealistic, unless there has been a fundamental errorin the sequencing of activities. The length of timeallowed on a contractor’s programme for individualactivities may look optimistic or pessimistic to a projectmanager, but it is solely the contractor who will decidewhat level of resources to use on each part of theworks, and on the degree of overlap that can beachieved between activities. The contractor thereforeought to be best placed to decide the duration of eachprogramme activity.

Once agreed, the programme must be kept up-to-date.Clause 32.2 requires the contractor to provide revisedprogrammes throughout the period of the works.

The latest ‘accepted programme’ will be used as thebaseline for assessing delay events and their impactupon the completion date. As stated in subsection2.3.2.1, the NEC3 contract deals with delays tocompletion as ‘compensation events’, with clause 62setting out the procedure for the provision of‘compensation event’ quotations.

If a ‘compensation event’ is expected to have animpact on the progress of works, the quotation mustinclude a revised programme (clause 62.2). Theprocedure and timetable for submitting and agreeingquotations is set out in clauses 62.3 to 62.6. In theguidance notes to the NEC3, it is acknowledged thatproducing a new programme for every minor changemay be ‘counter-productive’: if several minor eventsoccur within a short period of time, some projectmanagers may allow the effects of such changes to beshown on one revised programme that incorporates allthese minor events.

Clause 64 deals with circumstances in which:

• the contractor has not submitted a quotation for a‘compensation event’

• the quotation is ‘incorrect’

• the contractor has not submitted a revisedprogramme; or

• there is no agreed programme.

In these circumstances, the project manager mustmake an assessment of the compensation event,including any extension of time. This is unlikely to bean easy task, particularly if the project manager doesnot have an up-to-date programme from the contractor.It is also unlikely that contractors’ and projectmanagers’ views about delays will always match.

If the project manager fails to make an assessmentthen, by virtue of clause 64.4, the contractor’squotation is deemed accepted after a set period oftime.

By virtue of clause 65.1, a compensation event isimplemented when the quotation is accepted (ortreated as accepted) or when the project managernotifies the contractor of his or her own assessment.

Therefore, under NEC3 a prospective assessment ofdelay is made and, once made, it is not subject toreview, even if it proves to be wrong.

2.3.3 ICE Conditions of Contract, 7th edition

Publication of the ICE Conditions of Contract, 7thedition, ended on 1 August 2011 and ownership of the


Extensions of time

contracts has since been transferred to the Associationfor Consultancy and Engineering (ACE) and the CivilEngineering Contractors’ Association (CECA). The ACEand CECA have rebranded the form as theInfrastructure Conditions of Contract (ICC). Given theexistence of the rebranded form, and given that otherforms that are still in use have similar terms to those inthe ICE Conditions, a review of the delay provisions inthe ICE Contract is provided here.

The majority of the provisions relating to time issues inthe ICE Conditions of Contract, 7th edition are found inclauses 41 to 48. There are also a number of otherimportant subclauses dealing with delay and extracost.


As with the JCT and NEC3 standard forms, the ICEConditions of Contract provide a list of events that maygive rise to an extension of time, set out in clause44(1). The list includes

• variations

• increases in the quantity of works

• exceptionally adverse weather; and

• two general catch-alls of:

– any delay, impediment, prevention or defaultby the employer; and

– any ‘other special circumstances of any kindwhatsoever’ that may occur.

The list of Relevant Events in this contract alsoincludes:

• a failure by the engineer to issue the necessarydrawings and specifications (clause 7(4))

• the discovery of unforeseen ‘physical conditions’or ‘artificial obstructions’ (clause 12(6))

• compliance with instructions (clause 13(3))

• late approval of construction methods orunforeseen limitations imposed by design criteria(clause 14(8)); and

• the provision of site facilities for others (clause31(2)).


If the contractor considers that the works will bedelayed by one or more of the delay events listed, itmust, by virtue of clause 44(1), provide full and detailedparticulars to justify the period of extension claimed.This information must be provided within 28 days ofthe cause of the delay arising, or as soon thereafter asis reasonable.

2.3.3.3 Assessments

Clauses 44(2) and 44(3) of the ICE form deal with theassessment and granting of an extension by theengineer.

Clause 44(2) provides that the engineer must make anassessment of any delay that has been suffered andnotify the contractor of that assessment. Anassessment must be made upon receipt of particularsfrom the contractor (clause 44(2)(a)) or may be made inthe absence of any claim (clause 44(2)(b)).

Clause 44(3) provides that the engineer must make aninterim extension of time award as soon as it isconsidered that the delay fairly entitles the contractorto more time to complete.

Clauses 44(4) and 44(5) impose further duties on theengineer at and shortly after completion of the works tomake a final determination of the extension of timedue.

Clause 44(4) provides that the engineer must, within 14days of the completion date, decide whether thecontractor is entitled to an extension of time or furtherextension, regardless of whether an application for anextension has been made by the contractor.

Clause 44(5) provides that the engineer must, within 28days of the issue of the ‘Certificate of SubstantialCompletion’ for the works, review and finally determinethe extension of time. Certification of ‘SubstantialCompletion’ is covered by clause 48 of the contract.

As with the review under the JCT standard form, theengineer under the ICE form cannot decrease theperiod of any extension of time previously awarded.

2.3.4 FIDIC Contracts 1999

FIDIC produces a suite of standard forms of contracts(known as the Red, Yellow, Silver and Gold Books). Inthis section, reference is made to the 1999 first editionof the Red, Yellow and Silver Books.


Clause 8.4 of the FIDIC contracts provides that acontractor shall be entitled to an extension of time ifthe contractor is or will be delayed by:

• variations

• exceptionally adverse climatic conditions

• unforeseeable shortages in the availability ofpersonnel or goods (as defined) caused byepidemic or governmental actions


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• any delay, impediment or prevention caused by orattributable to the employer or to his or herpersonnel; and

• events that entitle the contractor to an extension oftime under any of the other clauses of thecontract.

The other clauses are spread throughout the contractand include, for example, delays due to late access tothe site (clause 2.1).

It is clear from the wording of clause 8.4 that anextension of time will only be awarded if the delayingevent causes completion to be delayed, rather thansimply causing delay to the contractor’s progress.


A contractor’s entitlement to an extension of timeunder clause 8.4 (and the other delay event clauses) issubject to compliance with the notice procedure setout in clause 20.1. (Clause 20.1 applies where thecontractor ‘considers himself to be entitled to anyextension of the Time for Completion and/or anyadditional payment, under any Clause of theseConditions or otherwise in connection with theContract …’).

The procedure at clause 20.1 requires the contractorto:

• Notify the contract administrator and describe theevent or circumstance giving rise to the claim. Thisnotice must be given ‘as soon as practicable, andnot later than 28 days after the Contractor becameaware, or should have become aware, of the eventor circumstance.’

• Provide to the contract administrator a ‘fullydetailed claim which includes full supportingparticulars of the basis of the claim’, within 42days of becoming aware of the claim, or within 42days of when the contractor should have becomeaware, or within such other period as may beagreed by the parties.

• Keep such contemporary records as may benecessary to substantiate any claim. These recordsmay be monitored and inspected by the contractadministrator.

• Submit other notices, if required by the contract,as well as supporting particulars for the claim. Ifthe event or circumstance giving rise to the claimhas a continuing effect, then the contract includesadditional reporting requirements, including makinginterim claims at monthly intervals.

On receipt of such notice, the contract administrator isrequired to:

• Respond to the contractor within 42 days ofreceiving a claim, or any further particularssupporting a previous claim. The response musteither approve or disapprove the claim and mustprovide detailed comments.

• Proceed in accordance with clause 3.5 to agree ordetermine any extension of time and/or anyadditional payment to which the contractor isentitled.

The contract makes it clear that the requirements ofclause 20.1 are in addition to those of any otherclauses that may apply to a claim. The final paragraphof clause 20.1 states that if the contractor fails tocomply with the procedural requirements under thecontract, in relation to a claim, any extension of time(and/or additional payment) awarded shall take accountof the extent to which the failure has prevented orprejudiced the proper investigation of the claim (unlessthe claim has already been excluded by virtue of thetime bar set out in the second paragraph of clause20.1).

FIDIC seeks to make the 28-day notice requirement inclause 20.1 a condition precedent to an award of anextension of time and/or additional payment. Clause20.1 provides that if the contractor fails to give noticeof a claim within the 28-day period, the contractor shallnot be entitled to an extension of time (or anyadditional payment) and the employer shall have noliability in respect of such claims. (In contrast, theobligation on the contractor to provide a detailed claimwithin the 42-day period is not expressed as acondition precedent.)

Given the significance of the 28-day noticerequirement, it is vital to know when the 28-day periodstarts, and accordingly, when it expires. It is clear thatit does not run from the occurrence of the event orcircumstance giving rise to the claim, but from whenthe contractor ‘became aware, or should have becomeaware, of the event or circumstance’ giving rise to theclaim. However, what is less clear is whether the 28-day period only starts running at the point of thecontractor’s awareness (or deemed awareness) orrather, when the contractor becomes aware that theevent or circumstance is to have time and/or costconsequences such that it is entitled to an extension oftime (or additional payment). The question of whetherthe contractor had, or should have had, the requisite


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knowledge is an evidential issue that would have to bedetermined on the particular facts.

2.3.4.3 Assessments

Clause 8.4 of the contract entitles the contractor to anextension of time ‘if and to the extent that completion… is or will be delayed …’

The method of assessment will depend on the specificfacts, namely, whether the delaying effect has occurred(or whether it is likely to occur in the future).

The parties will be bound by the contractadministrator’s assessment (subject to any challengeraised by the contractor at the time), unless thecontractor makes a further extension of time claim orthe delaying event has a continuing effect. If thecontractor makes further claims for an extension oftime, then the contract administrator may take intoaccount whether the previous prospective assessmentsreflected actual events, but may only increase, and notdecrease, the total extension of time awarded.


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3 Practical application (Level 2 – Doing)

3.1 Submission of delay notices

The standard forms of contract referred to above, andmost other forms of construction contract, require thecontractor to formally notify the employer in writing ofdelays to the works, either in advance of the delayevent or as soon as possible thereafter. In general, thecontractor is required to say whether it thinks the delayis likely to impact upon the contract completion dateand, if so, by how much. In most cases, the writtennotice does not have to be in a specific format and,usually, it will be nothing more than a letter or e-mailnotifying the employer of the delay and providing anyother information required under the provisions of thecontract.

Sending an employer a formal letter about a delay canseem an odd thing to do if those delays have beendiscussed in detail at formal site meetings, informalmeetings and over the telephone. In thesecircumstances, a contractor may well feel that theemployer is fully aware that the works are in delay andthe reasons for and likely duration of the delay.However, if the contract requires formal writtennotification to be provided, then a contractor shouldgive that notice, even if this merely confirms what hasbeen discussed. Arguments about a failure to provideproper notice of delay often crop up if a disputedevelops; sometimes, an employer may seek to avoid aclaim due to a lack of contractual notices.

Whether or not a ‘no notice defence’ to an extension oftime claim will succeed is likely to turn on the precisewording of the contract and the state of the law at thetime. However, it is clearly better for the contractor toremove the risk by issuing a notice as required by theterms of the contract, regardless of whether the noticemerely repeats points already well-known to all thoseinvolved in the project.

3.2 Measurement of delay

The measurement of delay to a project is the differencebetween the date of completion of the works and thecurrent contract completion date. If the works havebeen completed, then this retrospective exercise will besimple. However, measuring the delay period is onlypart of the task. A contractor will only be entitled to an

extension of time for the period of delay for which theemployer is responsible under the contract. Therefore,once the delay period has been established, it isnecessary to work out whether the contractor isentitled to all, some or none of the additional timetaken to complete the works.

Furthermore, in many cases, the actual period of delaywill not be known when an extension of time claim isbeing made and assessed, because extensions of timeare often dealt with prospectively (that is, before theactual completion date is known). The delay period inthese circumstances must be measured as thedifference between the projected completion date andthe current contract completion date.

A review and analysis of the programme for the worksis usually carried out to resolve questions of culpabilityfor delay and/or to estimate the likely delay period.Sometimes it can be difficult for parties to agree whichprogramme should be used to carry out the review, asprogrammes often change and/or are updated during aproject. It is important to agree a programme as thebenchmark for assessing an extension of time,otherwise the chances of agreeing the cause andextent (or likely cause and extent) of delays tocompletion will be greatly reduced.

3.3 Methods of delay analysis

3.3.1 Introduction

There are a number of methods of analysing andassessing delays. Some methods are simple andrelatively superficial; others are more detailed andcomplex.

One of the simpler methods is an overview of the facts.Another relatively simple method is to compare actualprogress achieved with the planned progress shown onthe programme for the works.

More detailed, forensic, exercises can be undertakenby adopting critical path analyses (sometimesabbreviated to CPA).


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A further option would be to use one or more of thebasic methods to review a narrow time period. Thisapproach may produce a more focused and reliableanalysis of delay events.

3.3.2 Overview of the facts

The simplest way of assessing delay, eitherprospectively or retrospectively, is by undertaking areview of the facts. The facts will be evidenced byletters, emails, meeting minutes, progress records,photographs, instructions, drawings and othercontemporaneous documents, and possibly bypersonal first-hand knowledge of the project.

This approach is likely to be suitable for dealing withrelatively straightforward claims, where the cause andeffect are reasonably apparent. For example, if thecommencement date for a project is deferred, or if thewhole of the works are suspended, it is highly likelythat there will be a corresponding delay to thecompletion date. Similarly, if a significant variation isinstructed as the works are being completed, then it islikely that any subsequent delay will be the result of thevariation instruction.

In these types of case, the cause and extent of delaywill generally be apparent and uncontroversial and theextension of time will not require any detailed analysis.A claim may comprise little more than a brief narrativestatement, setting out dates, events andconsequences.

An overview of the facts may also be used to assessless straightforward claims, particularly where thedifference between the claim and assessment is notgreat.

3.3.3 Comparing actual and planned progress

This method of analysis is often referred to byprogrammers as the ‘as-planned versus as-built’method. As the name suggests, it is the technique ofcomparing the planned timings of the variousprogramme activities with the actual or ‘as-built’timings.

It is a simple method to use and understand and doesnot require any specialist programming knowledge orcomputer software. Quite simply, the duration of thework activities, as actually carried out on site, areplotted on the planned programme, thereby illustratingdiscrepancies.

With this form of analysis, the work activities thatcommence and/or finish later than planned are likely tobe the focus of attention. The reasons for any late

commencement or completion of work activities will bereviewed, to ascertain why actual progress was not asplanned. If, on review, it appears probable that thedelay was due to an employer event, such as aninstruction to vary the work, an extension of time willusually be appropriate, providing that the delay wasconsidered likely to (or, on balance, did) have animpact upon the completion date.

Like the first method referred to in subsection 3.3.2,this method relies upon a review of contemporaneousdocuments, and may make use of first-handknowledge of the project. In this method, however,attention is particularly focused on discrepanciesbetween planned and actual progress.

A claim based on this method would include theprogramme comparing the planned and actual progressand a narrative explanation of the discrepancies. Theexplanations may be supported by references tocontemporaneous documents.

3.3.4 Critical path analyses

3.3.4.1 Introduction

The primary purpose of a critical path analysis is toshow which activities on a programme of works arecritical to completion and which are non-critical. Acritical path analysis can be produced manually but,due to the number of calculations required, it is inpractice only feasible using specialist softwareuploaded onto a computer.

The calculations made by the computer to establish thecritical path are based on ‘logic links’ betweenactivities. Logic links, which are input by theprogrammer, act as ties or constraints between thevarious programme activities.

For example, a link may well be inserted between theend of the load-bearing superstructure brickworkactivity and the commencement of the roofconstruction. If the superstructure brickwork is delayed,and the programme altered to show this delay, the linkwould cause the commencement date of roofconstruction works automatically to be pushed backwhen the programme is rescheduled by the software.

If the logic link between the completion ofsuperstructure brickwork and commencement ofroofing was not made, the programme would notreschedule logically; the revised programme might thusend up showing the roof commencing before theexternal walls had reached full height.


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Once programme activities and the necessary logiclinks for all activities have been input into thecomputer, the software will be able, at the press of abutton, to calculate the critical path. A delay to anactivity that is on the critical path will have an impactupon completion; a delay to an activity that is not onthe critical path will (at least initially) have no impactupon completion.

An example of a non-critical activity might be, forexample, fencing to rear gardens on a housing estate,which was planned to be carried out in four weeks,commencing at week 30 of a 50-week contract. Iffencing is the last activity of external work, it will onlybecome critical to completion if it is commenced afterweek 46. Any delay to commencement from week 30to week 46 will not prevent the entire works beingcompleted by week 50.

The time period during which an activity can bedeferred, without having any impact upon completionof the project, is usually referred to by programmers as‘float’. In the above example, the fencing activity has aperiod of 16 weeks float (from week 30 to week 46).Once the float is used up, the activity moves onto theprogramme’s critical path.

In contrast, a delay to a critical activity will have adirect knock-on effect on completion of the project.Therefore, critical activities must (at least in theory)start and finish at the planned start and finish times inorder to prevent delay to overall completion.

Critical path analyses can be used to review the impactof delay events on either the planned programme orthe as-built programme.

3.3.4.2 Review of the planned programme

This method of analysis is often referred to byprogrammers as the ‘planned impacted’ method. Theidea is that delay events are added to the computer-generated planned programme to analyse what impact,if any, those events will have upon the completion date.

The method works by adding activities, or amendeddurations of existing activities, to reflect the impact ofdelay events. For example, if additional work isinstructed, the time required to do this work can beinput and the programme rescheduled to see whateffect, if any, the additional work has upon the plannedprogramme completion date. Any delay to overallcompletion will represent the critical delay associatedwith the instruction.

If, for instance, the time taken to carry out instructedadditional works is added to the planned programme,and the completion date moves, on rescheduling, from14 June to 28 June, that would indicate that the eventresults in a delay to completion of two weeks.However, it may be that adding additional work willproduce no change to the programme completion date.This would indicate that the additional work does notimpact on the critical path and that no extension oftime is required to complete the project.

One of the attractions of this method is that once thenew data has been input and the programmerescheduled, the computer will not only provide anexplanation of the cause of the delay to completion,but will also provide a precise period of delay.

This method can be used before, during or after delayevents have occurred, but it is unlikely to be usedretrospectively. Once delay events have occurred, it islikely that ‘as-built’ information will be used to assessand measure the impact of delay events.

A claim using a ‘planned impacted’ method may wellinclude an electronic version of the programme,showing the logic links and the changes made. Theclaim should explain both the methodology adoptedand the results of the exercise. It should also include anarrative explanation of the programmes and thedelays.

3.3.4.3 Review of the ‘as-built’ programme

This method of analysis is, in some respects, theopposite of the ‘planned impacted’ method referred toabove. Instead of adding delay events to the plannedprogramme, the delay events are removed from the‘as-built’ programme.

Providing the as-built programme has been preparedusing computer software, and the activities have been‘logic-linked’, taking out delay events will cause theprogramme to shorten or ‘collapse’ when rescheduled.The difference between the original completion dateand the rescheduled date represents the delay periodthat would have been avoided, but for the eventsremoved from the programme. This method of analysisis often referred to by programmers as the ‘collapsedas-built’ or the ‘as-built but for’ method.

If, as is likely, there are a number of delaying events,each event should be removed from the programmesequentially, usually starting with the last event, andthe programme rescheduled each time to see whether


Extensions of time

the completion date changes. If the completion date isshown as being earlier, after rescheduling, this wouldindicate that the delay event was critical and causativeof the delay to the completion date.

For example, if a delay event is removed from the as-built programme and the completion date moves from28 June to 14 June that would indicate that the eventcaused a delay to completion of two weeks. As eachsuccessive event is removed, the programme collapsesbackwards to show when the works would havefinished, had it not been for the delay events.

As with the ‘planned impacted’ method, this methodproduces an explanation of the cause of the delay tocompletion and gives a precise delay periodattributable to that cause. However, it can only be usedretrospectively, as it is based on the progress that wasactually achieved.

A claim using a ‘collapsed as-built’ method will usuallyinclude an electronic version of the as-builtprogramme, showing the logic links and the changesmade, and details of the data used to create theprogramme. The claim should explain the methodologyand should include a narrative explanation of why, andby how much, the programme collapsed whenrescheduled.

3.3.5 Focused methods of analysis

The basic methods of programming analysis referred toabove usually consider the project as a whole. Suchanalyses may lack focus. Programmers have thereforedeveloped ways of considering delays in more detailover shorter time periods.

One such method is usually referred to byprogrammers as ‘time impact analysis’. With thismethod, only the period of time in which the delayevent is likely to have an impact is reviewed. If thedelay event is an instruction to carry out additionalwork, the analysis may focus on the period from thedate of the instruction to the date the additional work islikely to be completed.

As with the ‘planned impacted’ technique described insubsection 3.3.4.2, this method involves adding (or‘impacting’) delays onto the programme. However,instead of using the original planned programme as astarting point, this method uses an updatedprogramme, showing the progress actually achieved atthe start of the review period. In the example givenabove, this would be at the time the instruction wasgiven.

Time impact analysis is essentially a prospectivetechnique, in that it seeks to predict the likely futuredelay based on progress achieved prior to the delayevent. This technique is prescribed by the NEC3 formof contract for the analysis of delays due to‘compensation events’.

An alternative, but similarly focused approach, wouldbe to restrict the analysis of delays to particularperiods of time. Programmers usually refer to thismethod as a ‘window’ or ‘time slice’ analysis.

A ‘window’ or ‘time slice’ is a particular period of time;it might, for example, run from one monthly progressreport to the next. As with time impact analysis, theplanned programme is updated to reflect actualprogress achieved up to the commencement of theperiod; any delay in the period is then analysed.

‘Windows’ analyses require as-built information toreview the delays. This method is thus usedretrospectively.

The adoption of a method of analysis that focuses on arelatively short period of time should produce a moresophisticated review and one that is more closelyrelated to the realities of what was actually happeningon site. It should also remove or reduce thecomplexities of trying to review the project as a whole.

As with other claims, a claim using one of these morefocused methodologies should include narrativeexplanations, along with electronic versions of theprogrammes.

3.4 Delay assessments using BIM

Building information modelling (BIM) seeks to providedetailed information about a building, not just in termsof its three physical dimensions, but also with regard totime and cost issues. Time is usually referred to as thefourth dimension.

By linking a 3D model of a building to the programmingsoftware, it is possible to create a model comparingplanned and actual progress of the works. Such amodel will not necessarily illustrate the cause of adelaying event, but may prove to be invaluable inhelping to understand and illustrate, in detail, theconsequences of a delay event, or for the comparisonof planned and actual progress. In the future, BIM maybecome an important tool in the analysis of delays onconstruction projects.


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4 Practical considerations (Level 3 – Doing/Advising)

4.1 Which method of delay analysis shouldbe adopted?

Subsection 3.3 describes a number of differentmethods of delay analysis. Which of these should beadopted when preparing or assessing a delay claim?The answer will depend upon all or some of thefollowing:

• terms of the contract

• type of works being undertaken

• nature of the delay

• information available; and/or

• timing of the analysis.

The terms of most contracts allow any delaymethodology to be used, providing it produces a fairand reasonable assessment of any additional time tobe allowed to the contractor to complete the works.However, the contract terms should be checked assoon as a delay occurs, as they may prescribeprocedures to be followed. As stated in subsection2.3.2, the NEC3 form of contract is highly prescriptive;the assessment and measurement of delays under thisform must be carried out by ‘impacting’ the delayevents onto the latest version of the agreed plannedprogramme.

The type of work undertaken may govern themethodology adopted, as some methods of delayanalysis are more suited to some types of constructionthan others. For example, the use of critical pathanalysis generally works well when analysing delaysduring the construction of a structure on a new-buildproject, where links between programme activities arelikely to reflect the reality of the works beingundertaken. Delays to the construction of structuralcolumns and beams on one floor, for instance, arelikely to have a direct and corresponding impact on theconstruction of the rest of the structure. The links on acomputer-generated programme should reflect this.

Critical path analysis is, however, likely to work lesswell on a refurbishment of a large building, wheredelays to work in one part of an existing building maywell have little or no direct impact on works in the restof the building, and where activity links on the

programme may not reflect the reality and flexibility ofthe actual programming of works on site.

The choice of the most suitable method of analysis willalso depend, in part, on the nature of the delay event.If the delay and its consequences are relativelystraightforward, then a simple review may well suffice.If the situation is more complicated, a critical pathanalysis may be the best choice.

Regardless of other factors, the information availablemay constrain the methodology that can be used. Forexample, if the as-built information is incomplete,contradictory or intermittent, then it will not be possibleto use delay methodologies that are based on the useof as-built data.

The timing of the analysis will also influence themethod that can be used. Most contracts requireextensions of time to be awarded during the works. Inthese circumstances, the methodology will have to beone that allows for predicting the likely completiondate, which would rule out a methodology relying solelyon as-built data. In contrast, where the extension oftime is being reviewed retrospectively, which is usuallythe case in adjudication, arbitration and litigation, themethodology is likely to rely on as-built data.

There is therefore no single method of delay analysisthat is best to use in all circumstances. Instead, themethod chosen to prepare or assess a delay claim willdepend on a variety of project-specific factors.Ultimately, if a dispute is referred to adjudication,arbitration or litigation, it will generally be decided onthe facts; any programming analysis carried out mustthus sit logically with the factual background.

Whichever method is used, it is important to recogniseits inherent strengths and weaknesses. If the cause andduration of the delay to completion cannot be agreed,it is likely that the parties will expend considerable timeand effort criticising the method of analysis used by theother side. If an agreement is to be reached, however,it must be accepted that all methods have somefundamental weaknesses. This is discussed further insubsection 4.2.


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4.2 Strengths and weaknesses of delayanalysis methods

The methods of analysis set out in subsection 3.3above each have their strengths and weaknesses.

4.2.1 Overview of the facts

An overview of the facts is a simple approach and isparticularly suitable for dealing with relativelystraightforward claims. It is likely to be one of thequickest and least costly methods of making and/orassessing a delay claim. However, it is also likely to bethe least analytical approach, with the final conclusiondependent on a broad judgment as to whether thedelay events impacted (or were likely to impact) on thecompletion date.

When a judgment of the facts (and their impact) ismade, the parties will frequently reach differentconclusions: each viewing the situation in a mannermost favourable to their own side. This may lead todisagreements and disputes, which the lack of analysiswill make difficult to resolve, other than by acommercial compromise or by referring the matter toan adjudicator, arbitrator or judge. If a formal disputedoes ensue, an analysis based on an overview of thefacts may not be considered to be sufficiently robust.

To reduce the risk of disagreements, it is important thata review of the facts should be carried out logically andmethodically. The assessment of delay should not bespeculative or impressionistic.

4.2.2 Comparing actual and planned progress

The attraction of an analysis comparing the as-plannedand as-built programmes is that it is simple tounderstand and does not require any specialistprogramming knowledge or specialist computersoftware to produce. A review of significantdiscrepancies between planned and actual programmedurations may well highlight delay areas, and thecauses of delays may already be known to the partiesand/or easily explained. This is a more analyticalmethod than the overview procedure and allows theparties to focus on problem areas.

However, in isolation, an ‘as-planned versus as-built’programme analysis may indicate nothing more thanthat the original planned start dates and durations weretoo optimistic (or pessimistic) and/or that the contractorused more (or less) resources than planned, causingthe works to be carried out at a different speed to thatenvisaged. By itself, this method will not provide ananalysis of the cause and effect of delay events.

It may, however, be possible to show the cause andeffect of delay events by combining the programmeanalysis with a review and summary of the key facts.

4.2.3 Critical path analyses

In a critical path analysis, a programme is generated bycomputer software showing the critical path activities.When updated, this programme can react dynamicallyto show the impact of delay events upon thecompletion date of the works. Delay events can be‘impacted’ onto a planned programme, or removedfrom an as-built programme, to illustrate the cause andeffect of the events.

This analytical and precise methodology can beimpressive and captivating but, in order for it to workproperly, someone must link the programme activities,and these links may, at times, be more subjective thanobjective. As even reasonably minor changes to thelogic links can have a relatively significant impact onthe results of the exercise, these links can become asource of controversy and may lead to concern thatthe analysis has been manipulated to produce adesired result.

The ‘planned impacted’ technique may also becriticised as being theoretical, particularly where acontractor departs from the planned sequence and/orresourcing levels and carries out the works in asignificantly different way to that shown on the plannedprogramme.

The ‘as-built collapsed’ method (see subsection3.3.4.3) avoids allegations of being based on theory, asit relies on the facts of what actually took place, but itcan only work if the as-built records are sufficientlydetailed and accurate. Even with good records, thismethod can still run into difficulties if there arequestions as to when precisely an activity actuallycommenced and was completed. There may also bearguments about the links created between as-builtactivities and, as stated above, minor changes in linkscan result in major changes in the results of theexercise.

While a critical path analysis may look precise anddetailed, it may therefore be based in part onsubjective logic links, on a programme that does notreflect what actually happened or on the subjectiveinterpretation of as-built data.

Critical path analyses are also likely to be expensive toproduce, as they require specialist programmers and asignificant investment of time.


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4.2.4 Focused methods of analysis

‘Time impact analysis’ is one of the more focusedtypes of analysis described in subsection 3.4. Becausethis method uses an updated programme to showprogress actually achieved at the start of the reviewperiod, it avoids one of the potential key weaknessesof the ‘planned impacted method’, in that it is notbased on a theoretical programme, at least up to thepoint of the commencement of the review. It also hasthe advantage of being a technique that can be usedduring the currency of the works.

However, it remains at least partially theoretical, in thatthe assessment of delay caused to the completion dateis based on the future planned programme and not onwhat actually happened on site. This method couldtherefore produce an extension of time award at oddswith the reality of what ultimately transpired.

The alternative of analysing delays in ‘windows’ of timealso has the advantage of a starting point based onactual progress achieved, with the added benefit ofbeing a review of what actually happened. However,this retrospective approach may not suit the terms of acontract requiring extensions of time to be awarded inadvance.

As with the critical path techniques, these focusedmethods of delay analysis are likely to require specialistprogrammers and a significant input of time, makingthem expensive to produce.

4.3 Concurrent liability for delays

It would be nice to think that, if the contractprocedures had been properly applied and anappropriate method of analysis agreed and adopted,the problems of delay analysis would be fully dealtwith. However, a common residual problem relates toconcurrent delays and how to deal with them.

It is not unusual to find a number of separateidentifiable delay events occurring at any one time on abusy construction project. Common sense will tell youthat some of these events are trivial and cannotsensibly be attributed to the delay (or likely delay) tothe completion of the entire project. However, that maystill leave some delay events that are the responsibilityof the employer (typically due to design choices,variations and works by statutory undertakers) and

some that are the responsibility of the contractor(typically, supply of materials, labour productivity andsubcontractors’ works). When such concurrent causesof delay exist, is the contractor entitled to an extensionof time?

This question was considered in the case of Walter Lilly& Company Ltd v Mackay & Anor [2012] EWHC 1773(TCC). In the judgment, consideration was given toprevious cases where the point had also beenaddressed, namely Henry Boot Construction (UK) Ltd vMalmaison Hotel (Manchester) Ltd [1999] 70 Con LR32, De Beers v Atos Origin IT Services UK Ltd [2011]BLR 274 and Adyard Abu Dhabi v SD Marine Services[2011] EWHC 848 Comm. The judge concluded:

‘where there is an extension of time clausesuch as that agreed upon in this case andwhere delay is caused by two or more effectivecauses, one of which entitles the Contractor toan extension of time as being a RelevantEvent, the Contractor is entitled to a fullextension of time … there is a straightcontractual interpretation of Clause 25 whichpoints very strongly in favour of the view that,provided that the Relevant Events can beshown to have delayed the Works, theContractor is entitled to an extension of timefor the whole period of delay caused by theRelevant Events in question … The fact thatthe Architect has to award a ‘fair andreasonable’ extension does not imply thatthere should be some apportionment in thecase of concurrent delays’.

Crown copyright material is reproduced under theOpen Government Licence v2.0 for public sectorinformation: www.nationalarchives.gov.uk/doc/open-government-licence/version/2/

This would appear to provide a clear answer to thequestion. However, it will often remain difficult todecide whether delays are indeed ‘concurrent’. Forexample, if delay events merely overlap, but otherwisestart and end at different times, are they to be definedas concurrent? Is there any scope for consideringwhich delay occurred first or which was the dominantcause of delay to completion? These and otherquestions may leave the issue of concurrency a difficultone to deal with, even in the light of the judgment inWalter Lilly & Company Ltd v Mackay.


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5 Summary

When delays are likely to occur on a project, the firstthing the parties should do is to check their contract. Itwill, almost always, set out procedural requirements interms of notices, provision of information and timeperiods for making claims and/or assessments. Theseprocedural requirements should be followed.

Consideration must then be given to the mostappropriate means of assessing the delay.Assessments must identify the cause of delay, theperiod of delay and whether the delay event will have(or did have) an impact on the completion of theproject as a whole.

Under most contracts, the method of assessment willnot be prescribed and so a decision will have to bemade as to what method should be used. The decisionmay not be easy as all methods are open to criticism.The quicker and simple methods may be criticised forbeing too superficial; the more sophisticated,computer-generated methods may be criticised forbeing impenetrable or manipulated to achieve thedesired result; methods using planned programmesmay be dismissed as theoretical; and methods usingas-built data may be dismissed as being contrived.However, unless the cause and effect of a delay eventis unusually straightforward, a choice of delayassessment must be made and, in any given set ofcircumstances, some methods will prove to be moresuitable than others.

In the vast majority of cases, a delay assessment willhave to include a written statement explaining the legalbasis (usually the terms of the contract that provide forthe completion date to be amended) and the facts (theevents that caused the delay and the impact of thoseevents on the completion date). If the assessment isbased on an analysis of programmes, the purpose of,and conclusions to be derived from, those programmesshould be clearly explained.

It should be made clear, when producing writtenstatements, whether references to days and weeks arereferences to calendar days and weeks or workingdays and weeks: the two should not then be mixed up.

If there are concurrent causes of delay, then, generallyspeaking, the contractor will still be entitled to a fullextension of time. However, there may be difficulties ofdefining, with precision, what amounts to a ‘concurrent’delay.

Delay assessments can be very difficult but it shouldbe borne in mind that the test as to whether a claimshould be allowed is ‘on the balance of probabilities’:the claim does not have to be proved beyond allreasonable doubt. This is important to keep in mindbecause absolute precision will be difficult or, morelikely, impossible to achieve when making or assessinga delay to a project. A degree of flexibility may have tobe adopted if an agreement is to be reached.


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We believe that standards underpin effective markets. With up to seventy per cent of the world’s wealth bound up in land and real estate, our sector is vital to economic development, helping to support stable, sustainable investment and growth around the globe.

With offices covering the major political and financial centres of the world, our market presence means we are ideally placed to influence policy and embed professional standards. We work at a cross-governmental level, delivering international standards that will support a safe and vibrant marketplace in land, real estate, construction and infrastructure, for the benefit of all.

We are proud of our reputation and we guard it fiercely, so clients who work with an RICS professional can have confidence in the quality and ethics of the services they receive.

United Kingdom RICS HQ Parliament Square, London SW1P 3AD United Kingdom

t +44 (0)24 7686 8555 f +44 (0)20 7334 3811 [email protected]

Media enquiries [email protected]

Ireland 38 Merrion Square, Dublin 2, Ireland

t +353 1 644 5500 f +353 1 661 1797 [email protected]

Europe (excluding UK and Ireland)

Rue Ducale 67, 1000 Brussels, Belgium

t +32 2 733 10 19 f +32 2 742 97 48 [email protected]

Middle East Office G14, Block 3, Knowledge Village, Dubai, United Arab Emirates


Africa PO Box 3400, Witkoppen 2068, South Africa


Americas One Grand Central Place, 60 East 42nd Street, Suite 2810, New York 10165 – 2811, USA


South America Rua Maranhão, 584 – cj 104, São Paulo – SP, Brasil

t +55 11 2925 0068 [email protected]

Oceania Suite 1, Level 9, 1 Castlereagh Street, Sydney NSW 2000. Australia


North Asia 3707 Hopewell Centre, 183 Queen’s Road East Wanchai, Hong Kong

t +852 2537 7117 f +852 2537 2756 [email protected]

ASEAN Suite 10, 25th Floor, Samsung Hub, 3 Church Street, Singapore 049483

t +65 6692 9169 f +65 6692 9293 [email protected]

Japan Level 14 Hibiya Central Building, 1-2-9 Nishi Shimbashi Minato-Ku, Tokyo 105-0003, Japan


South Asia 48 & 49 Centrum Plaza, Sector Road, Sector 53, Gurgaon – 122002, India


Documents

RICS professional guidance, UK Extensions of time · 2018-07-26 · 1 Introduction Delays occur on most construction projects, and always have done. At some point during a project,