RICS guidance note

RICS professional guidance, UK

Extensions of time
1st edition

rics.org/guidance
 rics.org

Extensions of time
RICS guidance note

1st edition

Acknowledgments
RICS would like to thank the following for their
contribution 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, UK
www.rics.org
No responsibility for loss or damage caused to any person acting or
refraining from action as a result of the material included in this
publication can be accepted by the authors or RICS.
Produced by the QS and Construction Working Group of the Royal
Institution 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 this
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Typeset in Great Britain by Columns Design XML Ltd, Reading, Berks

 Extensions of time

Contents

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

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

2 General principles (Level 1 – Knowing)................... 4

2.1 Costs of delay...................................................... 4
2.2 Background to extension of time clauses........... 4
2.3 Extensions of time under standard forms of
contract................................................................ 5

3 Practical application (Level 2 – Doing).................... 12

3.1 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) ..................................................................... 16
4.1 Which method of delay analysis should be
adopted?.............................................................. 16
4.2 Strengths and weaknesses of delay analysis
methods ............................................................... 17
4.3 Concurrent liability for delays .............................. 18

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

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RICS professional guidance

International standards
RICS is at the forefront of developing international It is for each member to decide on the appropriate
standards, working in coalitions with organisations procedure to follow in any professional task. However,
around the globe, acting in the public interest to raise where members do not comply with the practice
standards and increase transparency within markets. recommended in this note, they should do so only for a
International Property Measurement Standards (IPMS – good reason. In the event of a legal dispute, a court or
ipmsc.org), International Construction Measurement tribunal may require them to explain why they decided
Standards (ICMS), International Ethics Standards (IES) not to adopt the recommended practice. Also, if
and others will be published and will be mandatory for members have not followed this guidance, and their
RICS members. This guidance note links directly to and actions are questioned in an RICS disciplinary case,
underpins these standards and RICS members are they will be asked to explain the actions they did take
advised to make themselves aware of the international and this may be taken into account by the Panel.
standards (see www.rics.org) and the overarching
In addition, guidance notes are relevant to professional
principles with which this guidance note complies.
competence in that each member should be up to date
Members of RICS are uniquely placed in the market by
and should have knowledge of guidance notes within a
being trained, qualified and regulated by working to
reasonable time of their coming into effect.
international standards and complying with this
guidance. This guidance note is believed to reflect case law and
legislation applicable at its date of publication. It is the
member’s responsibility to establish if any changes in
RICS guidance notes case law or legislation after the publication date have
an impact on the guidance or information in this
This is a guidance note. Where recommendations are document.
made for specific professional tasks, these are
intended to represent ‘best practice’, i.e.
recommendations which in the opinion of RICS meet a
high standard of professional competence.

Although members are not required to follow the

recommendations contained in the note, they should
take into account the following points.

When an allegation of professional negligence is made

against a surveyor, a court or tribunal may take
account of the contents of any relevant guidance notes
published by RICS in deciding whether or not the
member had acted with reasonable competence.

In the opinion of RICS, a member conforming to the

practices recommended in this note should have at
least a partial defence to an allegation of negligence if
they have followed those practices. However, members
have the responsibility of deciding when it is
inappropriate to follow the guidance.

Effective date 10 February 2015 RICS guidance note 1

 Extensions of time

Document status defined

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

Type of document Definition Status

Standard
International standard An international high level principle based standard Mandatory
developed in collaboration with other relevant bodies
Practice statement
RICS practice statement Document that provides members with mandatory Mandatory
requirements under Rule 4 of the Rules of Conduct for
members
Guidance
RICS code of practice Document approved by RICS, and endorsed by another Mandatory or recommended
professional body / stakeholder, that provides users with good practice (will be
recommendations for accepted good practice as confirmed in the document
followed by conscientious practitioners itself)
RICS guidance note (GN) Document that provides users with recommendations Recommended good practice
for accepted good practice as followed by competent
and conscientious practitioners
RICS information paper (IP) Practice based information that provides users with the Information and/or explanatory
latest information and/or research commentary

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1 Introduction

Delays occur on most construction projects, and

always 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 risk
that the contractual completion date will not be met.
Sometimes, the lack of progress will be due to events
that are the employer’s responsibility under the
contract; sometimes, the lack of progress will be due
to events that are the contractor’s responsibility.

For example, where traditional methods of procurement

have been adopted, most construction contracts
provide that delays caused by labour shortages or late
delivery of materials will be the responsibility of the
main contractor (or the subcontractor under a
subcontract agreement), while delays caused by
variations and/or the late provision of design
information will be the responsibility of the employer (or
the main contractor under a subcontract agreement).

If a delay has been caused by an event that is the

employer’s responsibility, then in general, the
contractor will be entitled to an extension of time. An
extension of time defers the contract completion date
and thereby gives the contractor a longer period within
which to complete the works. In order to decide
whether a contractor is entitled to an extension of time,
it is necessary to establish the cause of the delay and
the period of delay. In some cases this will be very
easy but in many cases it will be very difficult and can
be controversial.

Few contracts expressly make the quantity surveyor

responsible for the assessment of an extension of time
claim; the task more commonly falls on the architect,
contract administrator, engineer or project manager.
However, in practice, it is likely that quantity surveyors
will be asked at least to assist with the preparation or
assessment of a delay claim. The quantity surveyor’s
analytical training and methods of working are well-
suited to dealing with the complexities of delay
analysis.

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 Extensions of time

2 General principles (Level 1 – Knowing)

2.1 Costs of delay

If a project is delayed, it is likely that both the employer to show that the delay was caused by events that are
and the contractor will incur additional costs. The the employer’s responsibility under the contract. The
employer may incur additional finance costs and/or lost contractor does this by applying for an extension of
rent and/or additional fees for professional services time under the contract.
and/or a variety of other additional costs. The
contractor may incur additional costs of site
supervision, site offices and facilities, site security,
2.2 Background to extension of time
head office management and overheads, general plant clauses
hire, insurance and other costs. The contractor’s delay
costs are sometimes referred to as ‘prolongation costs’ The need for comprehensive extension of time
or ‘time-related costs’. provisions in construction contracts was illustrated by
judgments made in two cases: Holme v Guppy (1838) 3
In the vast majority of cases, the employer’s additional
M&W 387 and Wells v Army & Navy Co-operative
costs will be estimated, prior to tender enquiries going
Society Ltd (1902) 86 LT 764.
out, and will be expressed in the contract as a rate for
‘liquidated damages’. Damages are amounts awarded
by a court as compensation for loss or injury suffered The case of Holme v Guppy concerned the deduction
by one party due to a breach of contract or breach of of liquidated damages following late completion of
duty by another party; liquidated damages are amounts carpentry and joinery works by Holme at Guppy’s
for damages that are ascertained and fixed in advance. brewery in Liverpool. During the project, Holme had
had some labour problems and Guppy thought it was
The benefit of having a set rate for liquidated damages entitled to deduct liquidated damages at the rate in the
is that the parties know, in advance, the level of contract. At first instance, the court agreed with Guppy,
damages that will be applied in the event of a project but on appeal, the judgment was overturned. The
overrun. This allows the contractor to assess risk, prior Court of Exchequer held that Guppy was not entitled to
to submitting its tender for the works, and it allows the recover the liquidated damages, because it had also
employer to recover damages without having to go to been responsible for delays to the works. In particular,
the time and trouble of proving the amount of damages it was found that Holme had been significantly delayed
actually incurred. by Guppy’s masons and the late handing over of the
Contractor’s additional delay costs are rarely (if at all) site, and that these delays had prevented Holme from
included as liquidated damages in a construction completing on time. The court referred to each of these
contract. This is because the contractor’s delay costs delays as ‘an act of prevention’ and, in the absence of
are generally more wide-ranging, more uncertain and an extension of time clause (or alternatively, a revised
more variable than the employer’s costs. Therefore, contract with a longer period provided for completion),
most contracts provide express terms for the it held that time was left ‘at large’. With time at large,
assessment and reimbursement of delay costs, where the liquidated damages provisions were unenforceable.
appropriate, to the contractor.
In Wells v Army & Navy Co-operative Society, the
In the standard forms issued by the Joint Contracts parties’ contract included an extension of time clause.
Tribunal (JCT), and in many other forms of contract, the It was operated by the Army & Navy Co-operative
contractor’s delay costs are referred to by the term Society (the employer) to give Wells (the contractor) an
‘loss and expense’. Delay costs in the NEC3 extension of time of three months to the completion
Engineering and Construction Contract are valued date. However, the project finished over a year late and
within ‘compensation events’. the Army & Navy Co-operative Society applied
In order to recover delay costs and/or to avoid liability liquidated damages, at the contract rate, to the balance
for liquidated damages, a contractor will generally have of the overrun period. Wells objected on the grounds

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that the extension of time clause only dealt with third- 2.3.1.2 Delay notices
party delays and did not provide extensions due to Clause 2.27 of the JCT contract requires the contractor
delays caused by the employer or the architect.
to give notice if and whenever it becomes reasonably
The Court of Appeal found in Wells’ favour. It decided apparent that the progress of the works is being or is
that delays had been caused by the employer (late likely to be delayed. The notice must set out ‘the
possession) and the architect (late drawings) and so at material circumstances’, including the cause or causes
least part of the cause of delay to the works was due of the delay, and must specifically identify any event
to acts of prevention by the employer. These acts of that is considered to be a Relevant Event. The
prevention were not catered for in the extension of time contractor must also give particulars of the expected
clause in the contract. Thus, it was held that the effects of the delay upon the completion date, either in
liquidated damages provisions were ineffective and the original notice or in writing as soon as possible
could not be applied to the delay period. thereafter.
In the light of these cases, it is not surprising that
almost all construction contracts now provide 2.3.1.3 Assessment
extension of time clauses and that these clauses are
Under clause 2.28, the architect is required to consider
wide-ranging and comprehensive.
any notice of delay given by the contractor and to fix a
new (later) completion date if it is considered fair and
2.3 Extensions of time under standard reasonable to do so (a main contractor has similar
forms of contract obligations under clause 2.18 of the JCT subcontract).
The architect must provide a written notice of the
This section considers the JCT Standard Building decision about the delay as soon as reasonably
Contract 2011, the NEC3 form of contract 2013, the practicable, but in any event, within 12 weeks of
Institution of Civil Engineers (ICE) Conditions of receipt of ‘the required particulars’.
Contract 2013 and the International Federation of
Consulting Engineers (FIDIC) contracts 1999. If the time period for a decision commences only once
‘the required particulars’ have been received, the
2.3.1 JCT Standard Building Contract 2011 question arises as to what these particulars are. The
Adjustment of the completion date under the JCT contract does not provide an answer; no doubt
Standard Building Contract 2011 is dealt with in because the type of particulars required are likely to
clauses 2.26 to 2.29. These clauses are similar to vary from one case to another.
clauses 2.16 to 2.19 of the JCT Standard Building Sometimes, an architect’s request for further particulars
Subcontract 2011.
of the delay can be vague or generic. On occasions,
contractors have simply been told that a delay notice
2.3.1.1 Delay events cannot be considered until a claim is provided showing
Under JCT forms of contract, the reasons why a ‘cause and effect’.
completion date may be adjusted are set out in a list of
It is suggested that where requests for further
‘Relevant Events’.
information are not clear, contractors should seek
The list of Relevant Events under the JCT Standard clarification. Otherwise, a great deal of time and effort
Building Contract 2011 includes may be expended producing information that the
• variations architect or contract administrator finds to be of little
instructions assistance.
•
• deferment of possession of the site If an extension of time is awarded by the architect
• suspension during the project, the period of the extension must be
• works by statutory undertakers reviewed after completion of the works (clause 2.28.5).
• exceptionally adverse weather A review of the time originally awarded for an extension
civil commotion of time must be made within 12 weeks of practical
•
completion.
• terrorism and strikes; and
• ‘any impediment, prevention or default … by the Any revision to the extension of time decided upon
Employer’. after this review must either confirm or increase the

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 Extensions of time

extension of time period, unless there has been an 16 deals with notices or ‘early warnings’, section 3
omission to the works that justifies a reduction. In other deals generally with ‘time’, and section 6 considers
words, a review cannot ‘take back’ time that has ‘compensation events’.
already been awarded, even if subsequent events show Other relevant clauses may be found in other parts of
that the award was more generous than perhaps it the NEC3 contract, including the ‘Main Option
might have been. This provision may lead some Clauses’, the ‘Secondary Option Clauses’ and the
architects or contract administrators to take a ‘Contract Data’ section.
conservative view of any delay claim submitted by a
contractor; however, such an approach is not justifiable 2.3.2.1 NEC3 terminology
under the terms of the contract. An extension of time
The NEC3 contract is, according to page 2 of the
must be ‘fair and reasonable’, not cautious or
NEC3 guidance notes, ‘written in ordinary language’
understated, pending a further review after completion.
and ‘as far as possible … only uses words which are in
common usage’, making it ‘easier to understand by
2.3.1.4 Delay avoidance people who are not used to using formal contracts and
by people whose first language is not English’.
Under clause 2.28.6.1, the contractor is required to
However, a number of words and terms used in the
‘constantly use his best endeavours to prevent contract do require explanation. Definitions of terms
delay in the progress of the Works or any can be found in the NEC3 guidance notes. The terms
Section, however caused, and to prevent the defined below are of particular relevance to the
completion of the Works or Section being assessment of delay.
delayed or further delayed’ and, under clause • ‘Float’: this term is used in section 3 of the Core
2.28.6.2, must ‘do all that may reasonably be Clauses. It is defined as ‘any spare time within the
required to the satisfaction of the Architect/ programme after the time risk allowances have
Contract Administrator to proceed with the been included’.
Works or Section’. • ‘Time risk allowances’: this term is defined as
durations allowed within programme activities to
Subcontractors have similar obligations under clauses cover contractors’ ‘realistic’ risks. Time risk
2.18.6.1 and 2.18.6.2 of the subcontract. allowances cannot be used to off-set the effects of
‘compensation events’.
These clauses are considered in the RICS guidance
• ‘Compensation events’: this term is defined as
note Acceleration (2011), where it is suggested that the
‘events which, if they occur, and do not arise from
scope of such obligations should not be overstated. A
the Contractor’s fault, entitle the Contractor to be
duty to ‘prevent delay’ and to proceed with the works
compensated for any effect the event has on the
to the satisfaction of the architect or contract
Prices and the Completion Date or a Key Date’.
administrator does not appear to impose a positive
duty on the contractor to accelerate progress or to take The terms ‘prices’, ‘completion date’ and ‘key date’,
any action that a reasonable and prudent contractor used in the definition of ‘compensation events’, and
would not ordinarily take. other 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 Main
2.3.2 NEC3 form of contract 2013 Option Clauses, or the Contract Data section of the
Unlike the JCT standard forms, the NEC3 form is not contract.
intended to be simply a standard set of contract Under the NEC3 contract, ‘compensation events’ are
conditions; it also seeks, as stated in page 3 of the
subject to a quotation procedure, which is set out in
NEC3 guidance notes, to be a ‘stimulus to good
clause 62 of the Core Clauses. However, at page 75 of
management’. To meet this aim, the NEC3 is far more
the NEC3 guidance notes it states that: ‘the term
prescriptive about what each party should do and the
‘quotation’ is not the same as the normal use in
time by which this should be done.
commerce’. Therefore, at least in this instance, the
Delay events are dealt with mainly in the first section of NEC3 departs from ‘ordinary language’ and attributes
the contract (the ‘Core Clauses’), particularly at clause its own, different, meaning to a word in common
16 of section 1, and also in sections 3 and 6. Clause usage.

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The definitions of terms provided above are from the compensation event. If the contractor fails to give
NEC3 guidance notes. Note that only the definitions notice within eight weeks, the entitlement to an
found in the contract itself can be used for legal extension of time (or change to the ‘Completion Date’)
interpretation. The guidance notes point out that is waived (unless the project manager should have
definitions in the notes cannot be relied upon for legal notified under clause 61.1, but did not do so).
interpretation.
After receipt of a compensation event notice, the
project manager has just one week, under clause 61.4,
2.3.2.2 Delay events
to notify the contractor of his or her decision as to
Like the JCT’s list of Relevant Events, the NEC3’s list whether the event is a compensation event or not
of ‘compensation events’ (as set out in clause 60.1) (although this short time period can be extended with
that may entitle the contractor to more time to carry the agreement of the contractor). Failure by the project
out the works, includes manager to comply with this provision entitles the
• variations contractor to confirm the failure, at which point the
• instructions project manager has a further two weeks to reply. If no
• deferment of possession of the site reply is made within this extended time period, the
suspension notified event is deemed to be a compensation event.
•
• works by others (which would include works by
statutory undertakers) 2.3.2.4 Assessment
• unusually adverse weather; and The NEC3 form adopts an entirely different approach to
• events causing delay that neither party could most other forms of construction contract to the
prevent or foresee (which would include civil assessment of delays and revisions to the completion
commotion, terrorism and strikes, if these are date. The NEC3 procedure aims to have delays fully
‘Employer’s risks’ under clause 80.1). and finally assessed at or around the time the delays
occur, with this assessment not subject to review after
2.3.2.3 Delay notices completion or at any other time (unless the assessment
Under the NEC3, if there is a delay to the project that was expressly stated to be based on assumptions).
could have an impact on the completion date, an ‘early Clause 65.2 expressly provides that an assessment of
warning notice’ must be given, by either the contractor a delay will not be revised even if a forecast upon
or the project manager, in accordance with clause 16.1. which it is based is shown by later recorded
On receipt of such notice, the contractor or project information to have been wrong.
manager may, by virtue of clause 16.2, instruct the This prospective assessment of what impact a delay
other to attend a ‘risk reduction meeting’ to discuss the event will have on the completion date must be based
early warning event. Clause 16.3 specifies what the on the current programme for the works. In order to
parties must do at that meeting, including considering operate this procedure, the programme must be
how the risk of delay can be avoided or reduced. thorough and up-to-date. To meet these objectives, the
However, at this meeting, consideration will not be contract prescribes the requirements for the format of
given to extending the period for completion of the the programme and how often it must be updated.
works. Changes to the completion date are dealt with
Clause 31.2 requires that each programme must show
as part of the ‘compensation event’ assessment under
the following:
clause 61.
• the start date, access dates, key dates and
Clause 61.1 provides that the project manager is completion date
obliged to notify the contractor of any delay arising the planned completion
•
from an instruction, at the time the instruction is given.
• the order and timing of the operations
If no notice is given by the project manager, the
• the order and timing of the work to be carried out
contractor is required, by clause 61.3, to notify the
by the employer and others
project manager of an event ‘which has happened or
• the dates when the contractor plans to meet each
which he expects to happen as a compensation event’.
‘condition’ stated for the key dates and to
Under clause 61.3, the contractor has eight weeks from complete other work needed to allow the employer
becoming aware of the event to give notice of a and others to do their work; and

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 Extensions of time

• the dates when the contractor needs: The latest ‘accepted programme’ will be used as the
– access to a part of the site, if later than its baseline for assessing delay events and their impact
‘access date’ upon the completion date. As stated in subsection
2.3.2.1, the NEC3 contract deals with delays to
– acceptances
completion as ‘compensation events’, with clause 62
– plant and materials and other things; and setting out the procedure for the provision of
– information from ‘others’. ‘compensation event’ quotations.

The programme must also show ‘float’, ‘time risk If a ‘compensation event’ is expected to have an
allowances’ and health and safety requirements and impact on the progress of works, the quotation must
procedures set out in the contract. In conjunction with include a revised programme (clause 62.2). The
the programme, the contractor is required to provide a procedure and timetable for submitting and agreeing
method statement for each operation. quotations is set out in clauses 62.3 to 62.6. In the
guidance notes to the NEC3, it is acknowledged that
Producing this level of information at the outset and
producing a new programme for every minor change
then keeping it up-to-date may be considered to be a
may be ‘counter-productive’: if several minor events
tall order but, if extensions of time are to be
occur within a short period of time, some project
determined once and for all, at or around the time they
managers may allow the effects of such changes to be
happen, then a high level of accurate information will
shown on one revised programme that incorporates all
need to be immediately to hand.
these minor events.
The contractor’s latest programme must be approved
Clause 64 deals with circumstances in which:
before it can become the document upon which
extensions of time are assessed. By virtue of clause • the contractor has not submitted a quotation for a
31.3, the employer’s project manager must agree each ‘compensation event’
programme submitted by the contractor within two • the quotation is ‘incorrect’
weeks or, if he or she cannot agree a programme, must • the contractor has not submitted a revised
inform the contractor of the reasons why. programme; or
• there is no agreed programme.
Clause 31.3 prescribes the reasons why a programme
may not be accepted. These are as follows: In these circumstances, the project manager must
the programme is not practicable make an assessment of the compensation event,
•
including any extension of time. This is unlikely to be
• the programme does not provide all the necessary
an easy task, particularly if the project manager does
information
not have an up-to-date programme from the contractor.
• the programme is not realistic; and/or
It is also unlikely that contractors’ and project
• the programme does not comply with the ‘Works
managers’ views about delays will always match.
Information’ (as defined in Core Clause 11.2).
If the project manager fails to make an assessment
It is probably rare for a project manager confidently to
then, by virtue of clause 64.4, the contractor’s
assert that a contractor’s programme is impractical or
quotation is deemed accepted after a set period of
unrealistic, unless there has been a fundamental error
time.
in the sequencing of activities. The length of time
allowed on a contractor’s programme for individual By virtue of clause 65.1, a compensation event is
activities may look optimistic or pessimistic to a project implemented when the quotation is accepted (or
manager, but it is solely the contractor who will decide treated as accepted) or when the project manager
what level of resources to use on each part of the notifies the contractor of his or her own assessment.
works, and on the degree of overlap that can be
Therefore, under NEC3 a prospective assessment of
achieved between activities. The contractor therefore
delay is made and, once made, it is not subject to
ought to be best placed to decide the duration of each
review, even if it proves to be wrong.
programme activity.

Once agreed, the programme must be kept up-to-date. 2.3.3 ICE Conditions of Contract, 7th edition
Clause 32.2 requires the contractor to provide revised Publication of the ICE Conditions of Contract, 7th
programmes throughout the period of the works. edition, ended on 1 August 2011 and ownership of the

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contracts has since been transferred to the Association 2.3.3.3 Assessments

for Consultancy and Engineering (ACE) and the Civil Clauses 44(2) and 44(3) of the ICE form deal with the
Engineering Contractors’ Association (CECA). The ACE
assessment and granting of an extension by the
and CECA have rebranded the form as the
engineer.
Infrastructure Conditions of Contract (ICC). Given the
existence of the rebranded form, and given that other Clause 44(2) provides that the engineer must make an
forms that are still in use have similar terms to those in assessment of any delay that has been suffered and
the ICE Conditions, a review of the delay provisions in notify the contractor of that assessment. An
the ICE Contract is provided here. assessment must be made upon receipt of particulars
The majority of the provisions relating to time issues in from the contractor (clause 44(2)(a)) or may be made in
the ICE Conditions of Contract, 7th edition are found in the absence of any claim (clause 44(2)(b)).
clauses 41 to 48. There are also a number of other Clause 44(3) provides that the engineer must make an
important subclauses dealing with delay and extra interim extension of time award as soon as it is
cost. considered that the delay fairly entitles the contractor
to more time to complete.
2.3.3.1 Delay events
Clauses 44(4) and 44(5) impose further duties on the
As with the JCT and NEC3 standard forms, the ICE
engineer at and shortly after completion of the works to
Conditions of Contract provide a list of events that may
make a final determination of the extension of time
give rise to an extension of time, set out in clause
due.
44(1). The list includes
variations Clause 44(4) provides that the engineer must, within 14
•
increases in the quantity of works days of the completion date, decide whether the
•
contractor is entitled to an extension of time or further
• exceptionally adverse weather; and
extension, regardless of whether an application for an
• two general catch-alls of:
extension has been made by the contractor.
– any delay, impediment, prevention or default
by the employer; and Clause 44(5) provides that the engineer must, within 28
days of the issue of the ‘Certificate of Substantial
– any ‘other special circumstances of any kind
Completion’ for the works, review and finally determine
whatsoever’ that may occur.
the extension of time. Certification of ‘Substantial
The list of Relevant Events in this contract also Completion’ is covered by clause 48 of the contract.
includes:
As with the review under the JCT standard form, the
• a failure by the engineer to issue the necessary
engineer under the ICE form cannot decrease the
drawings and specifications (clause 7(4))
period of any extension of time previously awarded.
• the discovery of unforeseen ‘physical conditions’
or ‘artificial obstructions’ (clause 12(6))
2.3.4 FIDIC Contracts 1999
• compliance with instructions (clause 13(3))
late approval of construction methods or FIDIC produces a suite of standard forms of contracts
•
unforeseen limitations imposed by design criteria (known as the Red, Yellow, Silver and Gold Books). In
(clause 14(8)); and this section, reference is made to the 1999 first edition
of the Red, Yellow and Silver Books.
• the provision of site facilities for others (clause
31(2)).
2.3.4.1 Delay events
2.3.3.2 Delay notices Clause 8.4 of the FIDIC contracts provides that a
If the contractor considers that the works will be contractor shall be entitled to an extension of time if
delayed by one or more of the delay events listed, it the contractor is or will be delayed by:
must, by virtue of clause 44(1), provide full and detailed • variations
particulars to justify the period of extension claimed. • exceptionally adverse climatic conditions
This information must be provided within 28 days of • unforeseeable shortages in the availability of
the cause of the delay arising, or as soon thereafter as personnel or goods (as defined) caused by
is reasonable. epidemic or governmental actions

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 Extensions of time

• any delay, impediment or prevention caused by or On receipt of such notice, the contract administrator is
attributable to the employer or to his or her required to:
personnel; and
• Respond to the contractor within 42 days of
• events that entitle the contractor to an extension of receiving a claim, or any further particulars
time under any of the other clauses of the supporting a previous claim. The response must
contract. either approve or disapprove the claim and must
provide detailed comments.
The other clauses are spread throughout the contract
and include, for example, delays due to late access to • Proceed in accordance with clause 3.5 to agree or
the site (clause 2.1). determine any extension of time and/or any
additional payment to which the contractor is
It is clear from the wording of clause 8.4 that an entitled.
extension of time will only be awarded if the delaying
event causes completion to be delayed, rather than The contract makes it clear that the requirements of
simply causing delay to the contractor’s progress. clause 20.1 are in addition to those of any other
clauses that may apply to a claim. The final paragraph
of clause 20.1 states that if the contractor fails to
2.3.4.2 Delay notices
comply with the procedural requirements under the
A contractor’s entitlement to an extension of time contract, in relation to a claim, any extension of time
under clause 8.4 (and the other delay event clauses) is (and/or additional payment) awarded shall take account
subject to compliance with the notice procedure set of the extent to which the failure has prevented or
out in clause 20.1. (Clause 20.1 applies where the prejudiced the proper investigation of the claim (unless
contractor ‘considers himself to be entitled to any the claim has already been excluded by virtue of the
extension of the Time for Completion and/or any time bar set out in the second paragraph of clause
additional payment, under any Clause of these 20.1).
Conditions or otherwise in connection with the
Contract …’). FIDIC seeks to make the 28-day notice requirement in
clause 20.1 a condition precedent to an award of an
The procedure at clause 20.1 requires the contractor extension of time and/or additional payment. Clause
to: 20.1 provides that if the contractor fails to give notice
• Notify the contract administrator and describe the of a claim within the 28-day period, the contractor shall
event or circumstance giving rise to the claim. This not be entitled to an extension of time (or any
notice must be given ‘as soon as practicable, and additional payment) and the employer shall have no
not later than 28 days after the Contractor became liability in respect of such claims. (In contrast, the
aware, or should have become aware, of the event obligation on the contractor to provide a detailed claim
or circumstance.’ within the 42-day period is not expressed as a
• Provide to the contract administrator a ‘fully condition precedent.)
detailed claim which includes full supporting
particulars of the basis of the claim’, within 42 Given the significance of the 28-day notice
days of becoming aware of the claim, or within 42 requirement, it is vital to know when the 28-day period
days of when the contractor should have become starts, and accordingly, when it expires. It is clear that
aware, or within such other period as may be it does not run from the occurrence of the event or
agreed by the parties. circumstance giving rise to the claim, but from when
• Keep such contemporary records as may be the contractor ‘became aware, or should have become
necessary to substantiate any claim. These records aware, of the event or circumstance’ giving rise to the
may be monitored and inspected by the contract claim. However, what is less clear is whether the 28-
administrator. day period only starts running at the point of the
• Submit other notices, if required by the contract, contractor’s awareness (or deemed awareness) or
as well as supporting particulars for the claim. If rather, when the contractor becomes aware that the
the event or circumstance giving rise to the claim event or circumstance is to have time and/or cost
has a continuing effect, then the contract includes consequences such that it is entitled to an extension of
additional reporting requirements, including making time (or additional payment). The question of whether
interim claims at monthly intervals. the contractor had, or should have had, the requisite

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knowledge is an evidential issue that would have to be The parties will be bound by the contract
determined on the particular facts. administrator’s assessment (subject to any challenge
raised by the contractor at the time), unless the
2.3.4.3 Assessments contractor makes a further extension of time claim or
Clause 8.4 of the contract entitles the contractor to an the delaying event has a continuing effect. If the
extension of time ‘if and to the extent that completion contractor makes further claims for an extension of
… is or will be delayed …’ time, then the contract administrator may take into
account whether the previous prospective assessments
The method of assessment will depend on the specific
reflected actual events, but may only increase, and not
facts, namely, whether the delaying effect has occurred
decrease, the total extension of time awarded.
(or whether it is likely to occur in the future).

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 Extensions of time

3 Practical application (Level 2 – Doing)

3.1 Submission of delay notices

The standard forms of contract referred to above, and extension of time for the period of delay for which the
most other forms of construction contract, require the employer is responsible under the contract. Therefore,
contractor to formally notify the employer in writing of once the delay period has been established, it is
delays to the works, either in advance of the delay necessary to work out whether the contractor is
event or as soon as possible thereafter. In general, the entitled to all, some or none of the additional time
contractor is required to say whether it thinks the delay taken to complete the works.
is likely to impact upon the contract completion date
and, if so, by how much. In most cases, the written Furthermore, in many cases, the actual period of delay
notice does not have to be in a specific format and, will not be known when an extension of time claim is
usually, it will be nothing more than a letter or e-mail being made and assessed, because extensions of time
notifying the employer of the delay and providing any are often dealt with prospectively (that is, before the
other information required under the provisions of the actual completion date is known). The delay period in
contract. these circumstances must be measured as the
difference between the projected completion date and
Sending an employer a formal letter about a delay can
the current contract completion date.
seem an odd thing to do if those delays have been
discussed in detail at formal site meetings, informal
A review and analysis of the programme for the works
meetings and over the telephone. In these
is usually carried out to resolve questions of culpability
circumstances, a contractor may well feel that the
for delay and/or to estimate the likely delay period.
employer is fully aware that the works are in delay and
Sometimes it can be difficult for parties to agree which
the reasons for and likely duration of the delay.
programme should be used to carry out the review, as
However, if the contract requires formal written
programmes often change and/or are updated during a
notification to be provided, then a contractor should
project. It is important to agree a programme as the
give that notice, even if this merely confirms what has
benchmark for assessing an extension of time,
been discussed. Arguments about a failure to provide
otherwise the chances of agreeing the cause and
proper notice of delay often crop up if a dispute
extent (or likely cause and extent) of delays to
develops; sometimes, an employer may seek to avoid a
completion will be greatly reduced.
claim due to a lack of contractual notices.

Whether or not a ‘no notice defence’ to an extension of

3.3 Methods of delay analysis
time claim will succeed is likely to turn on the precise
wording of the contract and the state of the law at the
3.3.1 Introduction
time. However, it is clearly better for the contractor to
remove the risk by issuing a notice as required by the There are a number of methods of analysing and
terms of the contract, regardless of whether the notice assessing delays. Some methods are simple and
merely repeats points already well-known to all those relatively superficial; others are more detailed and
involved in the project. complex.

3.2 Measurement of delay One of the simpler methods is an overview of the facts.
Another relatively simple method is to compare actual
The measurement of delay to a project is the difference progress achieved with the planned progress shown on
between the date of completion of the works and the the programme for the works.
current contract completion date. If the works have
been completed, then this retrospective exercise will be More detailed, forensic, exercises can be undertaken
simple. However, measuring the delay period is only by adopting critical path analyses (sometimes
part of the task. A contractor will only be entitled to an abbreviated to CPA).

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A further option would be to use one or more of the commencement or completion of work activities will be
basic methods to review a narrow time period. This reviewed, to ascertain why actual progress was not as
approach may produce a more focused and reliable planned. If, on review, it appears probable that the
analysis of delay events. delay was due to an employer event, such as an
instruction to vary the work, an extension of time will
3.3.2 Overview of the facts usually be appropriate, providing that the delay was
considered likely to (or, on balance, did) have an
The simplest way of assessing delay, either
impact upon the completion date.
prospectively or retrospectively, is by undertaking a
review of the facts. The facts will be evidenced by Like the first method referred to in subsection 3.3.2,
letters, emails, meeting minutes, progress records, this method relies upon a review of contemporaneous
photographs, instructions, drawings and other documents, and may make use of first-hand
contemporaneous documents, and possibly by knowledge of the project. In this method, however,
personal first-hand knowledge of the project. attention is particularly focused on discrepancies
between planned and actual progress.
This approach is likely to be suitable for dealing with
relatively straightforward claims, where the cause and A claim based on this method would include the
effect are reasonably apparent. For example, if the programme comparing the planned and actual progress
commencement date for a project is deferred, or if the and a narrative explanation of the discrepancies. The
whole of the works are suspended, it is highly likely explanations may be supported by references to
that there will be a corresponding delay to the contemporaneous documents.
completion date. Similarly, if a significant variation is
instructed as the works are being completed, then it is 3.3.4 Critical path analyses
likely that any subsequent delay will be the result of the
variation instruction. 3.3.4.1 Introduction
In these types of case, the cause and extent of delay The primary purpose of a critical path analysis is to
will generally be apparent and uncontroversial and the show which activities on a programme of works are
extension of time will not require any detailed analysis. critical to completion and which are non-critical. A
A claim may comprise little more than a brief narrative critical path analysis can be produced manually but,
statement, setting out dates, events and
due to the number of calculations required, it is in
consequences.
practice only feasible using specialist software
An overview of the facts may also be used to assess uploaded onto a computer.
less straightforward claims, particularly where the
The calculations made by the computer to establish the
difference between the claim and assessment is not
critical path are based on ‘logic links’ between
great.
activities. Logic links, which are input by the
programmer, act as ties or constraints between the
3.3.3 Comparing actual and planned progress
various programme activities.
This method of analysis is often referred to by
programmers as the ‘as-planned versus as-built’ For example, a link may well be inserted between the
method. As the name suggests, it is the technique of end of the load-bearing superstructure brickwork
comparing the planned timings of the various activity and the commencement of the roof
programme activities with the actual or ‘as-built’ construction. If the superstructure brickwork is delayed,
timings. and the programme altered to show this delay, the link
would cause the commencement date of roof
It is a simple method to use and understand and does
construction works automatically to be pushed back
not require any specialist programming knowledge or
computer software. Quite simply, the duration of the when the programme is rescheduled by the software.
work activities, as actually carried out on site, are If the logic link between the completion of
plotted on the planned programme, thereby illustrating superstructure brickwork and commencement of
discrepancies. roofing was not made, the programme would not
With this form of analysis, the work activities that reschedule logically; the revised programme might thus
commence and/or finish later than planned are likely to end up showing the roof commencing before the
be the focus of attention. The reasons for any late external walls had reached full height.

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 Extensions of time

Once programme activities and the necessary logic If, for instance, the time taken to carry out instructed
links for all activities have been input into the additional works is added to the planned programme,
computer, the software will be able, at the press of a and the completion date moves, on rescheduling, from
button, to calculate the critical path. A delay to an 14 June to 28 June, that would indicate that the event
activity that is on the critical path will have an impact results in a delay to completion of two weeks.
upon completion; a delay to an activity that is not on However, it may be that adding additional work will
the critical path will (at least initially) have no impact produce no change to the programme completion date.
upon completion. This would indicate that the additional work does not
impact on the critical path and that no extension of
An example of a non-critical activity might be, for
time is required to complete the project.
example, fencing to rear gardens on a housing estate,
which was planned to be carried out in four weeks, One of the attractions of this method is that once the
commencing at week 30 of a 50-week contract. If new data has been input and the programme
fencing is the last activity of external work, it will only rescheduled, the computer will not only provide an
become critical to completion if it is commenced after explanation of the cause of the delay to completion,
week 46. Any delay to commencement from week 30 but will also provide a precise period of delay.
to week 46 will not prevent the entire works being
This method can be used before, during or after delay
completed by week 50.
events have occurred, but it is unlikely to be used
The time period during which an activity can be retrospectively. Once delay events have occurred, it is
deferred, without having any impact upon completion likely that ‘as-built’ information will be used to assess
of the project, is usually referred to by programmers as and measure the impact of delay events.
‘float’. In the above example, the fencing activity has a
A claim using a ‘planned impacted’ method may well
period of 16 weeks float (from week 30 to week 46).
include an electronic version of the programme,
Once the float is used up, the activity moves onto the
showing the logic links and the changes made. The
programme’s critical path.
claim should explain both the methodology adopted
In contrast, a delay to a critical activity will have a and the results of the exercise. It should also include a
direct knock-on effect on completion of the project. narrative explanation of the programmes and the
Therefore, critical activities must (at least in theory) delays.
start and finish at the planned start and finish times in
order to prevent delay to overall completion. 3.3.4.3 Review of the ‘as-built’ programme

Critical path analyses can be used to review the impact This method of analysis is, in some respects, the
of delay events on either the planned programme or opposite of the ‘planned impacted’ method referred to
the as-built programme. above. Instead of adding delay events to the planned
programme, the delay events are removed from the
3.3.4.2 Review of the planned programme ‘as-built’ programme.

This method of analysis is often referred to by Providing the as-built programme has been prepared
programmers as the ‘planned impacted’ method. The using computer software, and the activities have been
idea is that delay events are added to the computer- ‘logic-linked’, taking out delay events will cause the
generated planned programme to analyse what impact, programme to shorten or ‘collapse’ when rescheduled.
if any, those events will have upon the completion date. The difference between the original completion date
and the rescheduled date represents the delay period
The method works by adding activities, or amended
that would have been avoided, but for the events
durations of existing activities, to reflect the impact of
removed from the programme. This method of analysis
delay events. For example, if additional work is
is often referred to by programmers as the ‘collapsed
instructed, the time required to do this work can be
as-built’ or the ‘as-built but for’ method.
input and the programme rescheduled to see what
effect, if any, the additional work has upon the planned If, as is likely, there are a number of delaying events,
programme completion date. Any delay to overall each event should be removed from the programme
completion will represent the critical delay associated sequentially, usually starting with the last event, and
with the instruction. the programme rescheduled each time to see whether

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the completion date changes. If the completion date is Time impact analysis is essentially a prospective
shown as being earlier, after rescheduling, this would technique, in that it seeks to predict the likely future
indicate that the delay event was critical and causative delay based on progress achieved prior to the delay
of the delay to the completion date. event. This technique is prescribed by the NEC3 form
of contract for the analysis of delays due to
For example, if a delay event is removed from the as- ‘compensation events’.
built programme and the completion date moves from
28 June to 14 June that would indicate that the event An alternative, but similarly focused approach, would
caused a delay to completion of two weeks. As each be to restrict the analysis of delays to particular
successive event is removed, the programme collapses periods of time. Programmers usually refer to this
backwards to show when the works would have method as a ‘window’ or ‘time slice’ analysis.
finished, had it not been for the delay events.
A ‘window’ or ‘time slice’ is a particular period of time;
As with the ‘planned impacted’ method, this method it might, for example, run from one monthly progress
produces an explanation of the cause of the delay to report to the next. As with time impact analysis, the
completion and gives a precise delay period planned programme is updated to reflect actual
attributable to that cause. However, it can only be used progress achieved up to the commencement of the
retrospectively, as it is based on the progress that was period; any delay in the period is then analysed.
actually achieved.
‘Windows’ analyses require as-built information to
A claim using a ‘collapsed as-built’ method will usually review the delays. This method is thus used
include an electronic version of the as-built retrospectively.
programme, showing the logic links and the changes
made, and details of the data used to create the The adoption of a method of analysis that focuses on a
programme. The claim should explain the methodology relatively short period of time should produce a more
and should include a narrative explanation of why, and sophisticated review and one that is more closely
by how much, the programme collapsed when related to the realities of what was actually happening
rescheduled. on site. It should also remove or reduce the
complexities of trying to review the project as a whole.
3.3.5 Focused methods of analysis
As with other claims, a claim using one of these more
The basic methods of programming analysis referred to
focused methodologies should include narrative
above usually consider the project as a whole. Such
explanations, along with electronic versions of the
analyses may lack focus. Programmers have therefore
programmes.
developed ways of considering delays in more detail
over shorter time periods.

One such method is usually referred to by

3.4 Delay assessments using BIM
programmers as ‘time impact analysis’. With this
Building information modelling (BIM) seeks to provide
method, only the period of time in which the delay
detailed information about a building, not just in terms
event is likely to have an impact is reviewed. If the
of its three physical dimensions, but also with regard to
delay event is an instruction to carry out additional
time and cost issues. Time is usually referred to as the
work, the analysis may focus on the period from the
fourth dimension.
date of the instruction to the date the additional work is
likely to be completed.
By linking a 3D model of a building to the programming
As with the ‘planned impacted’ technique described in software, it is possible to create a model comparing
subsection 3.3.4.2, this method involves adding (or planned and actual progress of the works. Such a
‘impacting’) delays onto the programme. However, model will not necessarily illustrate the cause of a
instead of using the original planned programme as a delaying event, but may prove to be invaluable in
starting point, this method uses an updated helping to understand and illustrate, in detail, the
programme, showing the progress actually achieved at consequences of a delay event, or for the comparison
the start of the review period. In the example given of planned and actual progress. In the future, BIM may
above, this would be at the time the instruction was become an important tool in the analysis of delays on
given. construction projects.

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 Extensions of time

4 Practical considerations (Level 3 – Doing/

Advising)

4.1 Which method of delay analysis should programme may not reflect the reality and flexibility of
the actual programming of works on site.
be adopted?
Subsection 3.3 describes a number of different The choice of the most suitable method of analysis will
methods of delay analysis. Which of these should be also depend, in part, on the nature of the delay event.
adopted when preparing or assessing a delay claim? If the delay and its consequences are relatively
The answer will depend upon all or some of the straightforward, then a simple review may well suffice.
following: If the situation is more complicated, a critical path
terms of the contract analysis may be the best choice.
•
• type of works being undertaken
Regardless of other factors, the information available
• nature of the delay may constrain the methodology that can be used. For
• information available; and/or example, if the as-built information is incomplete,
• timing of the analysis. contradictory or intermittent, then it will not be possible
to use delay methodologies that are based on the use
The terms of most contracts allow any delay
of as-built data.
methodology to be used, providing it produces a fair
and reasonable assessment of any additional time to The timing of the analysis will also influence the
be allowed to the contractor to complete the works. method that can be used. Most contracts require
However, the contract terms should be checked as extensions of time to be awarded during the works. In
soon as a delay occurs, as they may prescribe these circumstances, the methodology will have to be
procedures to be followed. As stated in subsection one that allows for predicting the likely completion
2.3.2, the NEC3 form of contract is highly prescriptive; date, which would rule out a methodology relying solely
the assessment and measurement of delays under this on as-built data. In contrast, where the extension of
form must be carried out by ‘impacting’ the delay time is being reviewed retrospectively, which is usually
events onto the latest version of the agreed planned the case in adjudication, arbitration and litigation, the
programme. methodology is likely to rely on as-built data.
The type of work undertaken may govern the
methodology adopted, as some methods of delay There is therefore no single method of delay analysis
analysis are more suited to some types of construction that is best to use in all circumstances. Instead, the
than others. For example, the use of critical path method chosen to prepare or assess a delay claim will
analysis generally works well when analysing delays depend on a variety of project-specific factors.
during the construction of a structure on a new-build Ultimately, if a dispute is referred to adjudication,
project, where links between programme activities are arbitration or litigation, it will generally be decided on
likely to reflect the reality of the works being the facts; any programming analysis carried out must
undertaken. Delays to the construction of structural thus sit logically with the factual background.
columns and beams on one floor, for instance, are
Whichever method is used, it is important to recognise
likely to have a direct and corresponding impact on the
its inherent strengths and weaknesses. If the cause and
construction of the rest of the structure. The links on a
duration of the delay to completion cannot be agreed,
computer-generated programme should reflect this.
it is likely that the parties will expend considerable time
Critical path analysis is, however, likely to work less and effort criticising the method of analysis used by the
well on a refurbishment of a large building, where other side. If an agreement is to be reached, however,
delays to work in one part of an existing building may it must be accepted that all methods have some
well have little or no direct impact on works in the rest fundamental weaknesses. This is discussed further in
of the building, and where activity links on the subsection 4.2.

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4.2 Strengths and weaknesses of delay It may, however, be possible to show the cause and
effect of delay events by combining the programme
analysis methods
analysis with a review and summary of the key facts.
The methods of analysis set out in subsection 3.3
above each have their strengths and weaknesses. 4.2.3 Critical path analyses
In a critical path analysis, a programme is generated by
4.2.1 Overview of the facts computer software showing the critical path activities.
An overview of the facts is a simple approach and is When updated, this programme can react dynamically
particularly suitable for dealing with relatively to show the impact of delay events upon the
straightforward claims. It is likely to be one of the completion date of the works. Delay events can be
quickest and least costly methods of making and/or ‘impacted’ onto a planned programme, or removed
assessing a delay claim. However, it is also likely to be from an as-built programme, to illustrate the cause and
the least analytical approach, with the final conclusion effect of the events.
dependent on a broad judgment as to whether the
This analytical and precise methodology can be
delay events impacted (or were likely to impact) on the
impressive and captivating but, in order for it to work
completion date.
properly, someone must link the programme activities,
When a judgment of the facts (and their impact) is and these links may, at times, be more subjective than
made, the parties will frequently reach different objective. As even reasonably minor changes to the
conclusions: each viewing the situation in a manner logic links can have a relatively significant impact on
most favourable to their own side. This may lead to the results of the exercise, these links can become a
disagreements and disputes, which the lack of analysis source of controversy and may lead to concern that
will make difficult to resolve, other than by a the analysis has been manipulated to produce a
commercial compromise or by referring the matter to desired result.
an adjudicator, arbitrator or judge. If a formal dispute
The ‘planned impacted’ technique may also be
does ensue, an analysis based on an overview of the
criticised as being theoretical, particularly where a
facts may not be considered to be sufficiently robust.
contractor departs from the planned sequence and/or
To reduce the risk of disagreements, it is important that resourcing levels and carries out the works in a
a review of the facts should be carried out logically and significantly different way to that shown on the planned
methodically. The assessment of delay should not be programme.
speculative or impressionistic.
The ‘as-built collapsed’ method (see subsection
3.3.4.3) avoids allegations of being based on theory, as
4.2.2 Comparing actual and planned progress it relies on the facts of what actually took place, but it
The attraction of an analysis comparing the as-planned can only work if the as-built records are sufficiently
and as-built programmes is that it is simple to detailed and accurate. Even with good records, this
understand and does not require any specialist method can still run into difficulties if there are
programming knowledge or specialist computer questions as to when precisely an activity actually
software to produce. A review of significant commenced and was completed. There may also be
discrepancies between planned and actual programme arguments about the links created between as-built
durations may well highlight delay areas, and the activities and, as stated above, minor changes in links
causes of delays may already be known to the parties can result in major changes in the results of the
and/or easily explained. This is a more analytical exercise.
method than the overview procedure and allows the
While a critical path analysis may look precise and
parties to focus on problem areas.
detailed, it may therefore be based in part on
However, in isolation, an ‘as-planned versus as-built’ subjective logic links, on a programme that does not
programme analysis may indicate nothing more than reflect what actually happened or on the subjective
that the original planned start dates and durations were interpretation of as-built data.
too optimistic (or pessimistic) and/or that the contractor
Critical path analyses are also likely to be expensive to
used more (or less) resources than planned, causing
produce, as they require specialist programmers and a
the works to be carried out at a different speed to that
significant investment of time.
envisaged. By itself, this method will not provide an
analysis of the cause and effect of delay events.

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 Extensions of time

4.2.4 Focused methods of analysis some that are the responsibility of the contractor
‘Time impact analysis’ is one of the more focused (typically, supply of materials, labour productivity and
types of analysis described in subsection 3.4. Because subcontractors’ works). When such concurrent causes
this method uses an updated programme to show of delay exist, is the contractor entitled to an extension
progress actually achieved at the start of the review of time?
period, it avoids one of the potential key weaknesses This question was considered in the case of Walter Lilly
of the ‘planned impacted method’, in that it is not & Company Ltd v Mackay & Anor [2012] EWHC 1773
based on a theoretical programme, at least up to the (TCC). In the judgment, consideration was given to
point of the commencement of the review. It also has previous cases where the point had also been
the advantage of being a technique that can be used addressed, namely Henry Boot Construction (UK) Ltd v
during the currency of the works. Malmaison Hotel (Manchester) Ltd [1999] 70 Con LR
32, De Beers v Atos Origin IT Services UK Ltd [2011]
However, it remains at least partially theoretical, in that
BLR 274 and Adyard Abu Dhabi v SD Marine Services
the assessment of delay caused to the completion date
[2011] EWHC 848 Comm. The judge concluded:
is based on the future planned programme and not on
what actually happened on site. This method could ‘where there is an extension of time clause
therefore produce an extension of time award at odds such as that agreed upon in this case and
with the reality of what ultimately transpired. where delay is caused by two or more effective
causes, one of which entitles the Contractor to
The alternative of analysing delays in ‘windows’ of time
an extension of time as being a Relevant
also has the advantage of a starting point based on
Event, the Contractor is entitled to a full
actual progress achieved, with the added benefit of
extension of time … there is a straight
being a review of what actually happened. However,
contractual interpretation of Clause 25 which
this retrospective approach may not suit the terms of a
points very strongly in favour of the view that,
contract requiring extensions of time to be awarded in
provided that the Relevant Events can be
advance.
shown to have delayed the Works, the
As with the critical path techniques, these focused Contractor is entitled to an extension of time
methods of delay analysis are likely to require specialist for the whole period of delay caused by the
programmers and a significant input of time, making Relevant Events in question … The fact that
them expensive to produce. the Architect has to award a ‘fair and
reasonable’ extension does not imply that
there should be some apportionment in the
4.3 Concurrent liability for delays case of concurrent delays’.
It would be nice to think that, if the contract Crown copyright material is reproduced under the
procedures had been properly applied and an Open Government Licence v2.0 for public sector
appropriate method of analysis agreed and adopted, information: www.nationalarchives.gov.uk/doc/open-
the problems of delay analysis would be fully dealt government-licence/version/2/
with. However, a common residual problem relates to
This would appear to provide a clear answer to the
concurrent delays and how to deal with them.
question. However, it will often remain difficult to
It is not unusual to find a number of separate decide whether delays are indeed ‘concurrent’. For
identifiable delay events occurring at any one time on a example, if delay events merely overlap, but otherwise
busy construction project. Common sense will tell you start and end at different times, are they to be defined
that some of these events are trivial and cannot as concurrent? Is there any scope for considering
sensibly be attributed to the delay (or likely delay) to which delay occurred first or which was the dominant
the completion of the entire project. However, that may cause of delay to completion? These and other
still leave some delay events that are the responsibility questions may leave the issue of concurrency a difficult
of the employer (typically due to design choices, one to deal with, even in the light of the judgment in
variations and works by statutory undertakers) and Walter Lilly & Company Ltd v Mackay.

18 RICS guidance note Effective date 10 February 2015

 rics.org

5 Summary

When delays are likely to occur on a project, the first In the vast majority of cases, a delay assessment will
thing the parties should do is to check their contract. It have to include a written statement explaining the legal
will, almost always, set out procedural requirements in basis (usually the terms of the contract that provide for
terms of notices, provision of information and time the completion date to be amended) and the facts (the
periods for making claims and/or assessments. These events that caused the delay and the impact of those
procedural requirements should be followed. events on the completion date). If the assessment is
based on an analysis of programmes, the purpose of,
Consideration must then be given to the most
and conclusions to be derived from, those programmes
appropriate means of assessing the delay.
should be clearly explained.
Assessments must identify the cause of delay, the
period of delay and whether the delay event will have It should be made clear, when producing written
(or did have) an impact on the completion of the statements, whether references to days and weeks are
project as a whole. references to calendar days and weeks or working
Under most contracts, the method of assessment will days and weeks: the two should not then be mixed up.
not be prescribed and so a decision will have to be If there are concurrent causes of delay, then, generally
made as to what method should be used. The decision speaking, the contractor will still be entitled to a full
may not be easy as all methods are open to criticism. extension of time. However, there may be difficulties of
The quicker and simple methods may be criticised for defining, with precision, what amounts to a ‘concurrent’
being too superficial; the more sophisticated, delay.
computer-generated methods may be criticised for
being impenetrable or manipulated to achieve the Delay assessments can be very difficult but it should
desired result; methods using planned programmes be borne in mind that the test as to whether a claim
may be dismissed as theoretical; and methods using should be allowed is ‘on the balance of probabilities’:
as-built data may be dismissed as being contrived. the claim does not have to be proved beyond all
However, unless the cause and effect of a delay event reasonable doubt. This is important to keep in mind
is unusually straightforward, a choice of delay because absolute precision will be difficult or, more
assessment must be made and, in any given set of likely, impossible to achieve when making or assessing
circumstances, some methods will prove to be more a delay to a project. A degree of flexibility may have to
suitable than others. be adopted if an agreement is to be reached.

Effective date 10 February 2015 RICS guidance note 19

20 RICS guidance note Effective date 10 February 2015
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