FORENSIC DELAY

ANALYSIS TRAINING

5) Disruption, Acceleration and Case Study 2

Doha November 2019

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AGENDA
▪ Case Study – Concurrent Delay
▪ Case Study (2) Exercise*
▪ Schedule/Delay risk management
▪ Mitigation
▪ Acceleration
▪ Constructive acceleration
▪ Schedule for acceleration claims
▪ Disruption

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Concurrent Delay
Case Study

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Case Study: Concurrent Delay
▪ Main Contractor Claim
• 26 weeks EOT
• £6m / $8m delay costs

▪ Adjudication No. 1: EOT

• Awarded 18 weeks EOT
• Adjudicator decided critical path
• No award requested or made on delay costs

▪ I was instructed to determine any concurrent delay

to assist with cost claim. Currently settled at
confidential sum.
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Case Study: Concurrent Delay
▪ Two main issues:

• Review “true” concurrent delays on Adjudicator’s

critical path

• Review non-critical delays relating to subcontractor

claims

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Case Study: Concurrent Delay

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SCL Protocol

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Concurrent Delays
▪ With the critical path determined by the
Adjudicator, I worked through the critical path
and progress records and identified concurrent
causes of delay on the critical path.

▪ Out of 18 weeks (126 days) EOT awarded;

• Only 9 days (7%) of actual concurrent delay

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Car Lift Stonework (blue)

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Car Lift Stonework

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11
 Concurrent causes
of delay to scaffold
Car Lift Stonework removal on critical
path

Dismantle scaffold
next critical activity
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Non-critical delays
(subcontractors)
▪ Briefly, I simply looked at the critical path and delays
through to completion of a number of packages:

• Passenger lifts
• Structural roof works
• Brickwork
• M&E

▪ I produced a separate analysis for each package.

▪ Same process applies for “But for Concurrent Delay”

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Case Study 2: Exercise
▪ 62 Thorpe Road

▪ Short independent determination applying forensic

delay analysis techniques to disputed delay claim

▪ Choice of methodology yours

▪ Important to justify choices and demonstrate

consideration of range of options/strengths
weaknesses

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62 Thorpe Road
▪ Background

• FIDIC 99 RB

• Completion: W26

• Amendment 1: “Employer shall provide all IFC

drawings by W1”

• The contractor did not keep progress updates

62 Thorpe Road
▪ The claim
• Contractor seeks full EOT for delayed IFCs and
variations

▪ The defence
• No entitlement to EOT
• Delays caused by poor progress and defects
• Claim rejected
62 Thorpe Road
▪ You are instructed as independent delay expert to:

1. Select and justify an appropriate methodology

2. Identify the delay events

3. Identify and justify your opinion on the planned and actual

critical paths

4. Determine the critical delays

5. Make an assessment of how much of the delay was caused by

the claimed delay events

6. Set out any assumptions or qualifications that might affect your

analysis and specify what further information you would need
to reach a firmer conclusion (if any)
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

Substructure
Superstructure 62 Thorpe Road

Envelope / roof AP v AB Programme

M&E 1st Fix
Partition walls / ceilings
2nd Fix/Decoration
T&C/Handover
Completion
Substructure
Superstructure
Envelope / roof
M&E 1st Fix
Partition walls / ceilings
2nd Fix/Decoration
T&C/Handover
TOC Issued
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22
1 23
2 24
3 25
4 26
5 27
6 28
7 29
8 30
9 10
31 11
32 12
33 13
34 14
35 15
36 16
37 17
38 19
39 20
40 21
41 22
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The Facts
W1: Contractor notifies employer of delay to receipt of IFCs;
W1: Employer notifies contractor in delay in mobilisation of labour and materials;
W2: Employer issues substructure IFCs;
W4: Employer issues revised substructure IFC; footprint extended to rear (one week’s
work);
W6: Employer issues superstructure & envelope IFCs;
W9: Defect discovered in wall cavity formation; rework during the week;
W12: Employer issues first tranche of remaining IFCs – roof details, M&E 1st fix and
internal layouts;
W21: Employer issues second tranche of remaining IFCs – ceiling finishes;
W26: Employer issues third and final tranche of remaining IFCs - remaining finishes;
W26 to W30: Employer notifies concern of labour levels at site;
W33: CA issues Take Over Certificate issued, 7 weeks later than planned.
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Schedule/delay risk management
▪ Recap: Delay = the situation in which you have to
wait longer than expected for something to happen

▪ Various kinds of risk in projects can cause delays:

• H&S
• Design
• Construction
• Commercial

▪ Crucial to manage time related delay risks

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Avoidance vs. mitigation
We try to either:

1. Avoid the causes of delays, or

2. Minimise the effects of delays

Avoidance vs. mitigation
• Avoid:
• Identify and account for the nature of the risk
• Allocate away responsibility of the risk
• Contingency: PERT – best, median and worst case
time estimates

• Minimise:
• Mitigation
• Acceleration
Can we really avoid delays?
• Allot of focus on delay avoidance

• Industry knows that it should try to achieve:

1. Fewer design changes

2. Simpler construction
3. Realistic timescales and contingencies
4. Vetting
5. Partnering
Probably not…
• But these goals are often not achieved:

• Clients will change their minds – latest technology

• Contractors will face issues with workforce and
subcontractors – international projects
• Lower bids often win
• Almost inevitable that an adverse event of some kind
will occur and cause some delay
Mitigating delays

• Mitigating delay means making changes to the current

working plan, to increase the rate of progress or reduce
the remaining critical path duration.

• This involves:

1. Resequencing activities
2. Increasing resources
3. Increasing working time
4. Temporary works
Mitigation
5d

4d

6d

5 d (0 delay)

6 d (+2 delay)

4 d (-2 acceleration)
(1) Resequencing activities

• Often the easiest / least costly mitigation measure:

• Simply reviewing programme logic developed at the

outset of the project may be effective

• More parallel working between

rooms/floors/buildings sometimes possible

• But can be costly if other measures needed to

facilitate new sequence
(2) Increasing resources

• Only effective if properly planned:

• Additional resources targeted on critical/near critical

work

• Time limited period with clear objective

• Consider labour and supervision availability, cash

flow restraints and increased site welfare/logistics
burden
(3) Increased working time

• Only effective if properly planned:

• Introducing overtime / additional shifts

• Again, should be:

• Targeted on critical/near critical work
• Time limited period with clear objective

• Consider labour and supervision availability,

productivity/exhusation, working hour restraints
(4) Temporary works

• Any temporary works that enables work to

proceed earlier or at a faster rate

• Temporary waterproofing
• Temporary windows/doors
• Temporary lighting
• Access/egress arrangements
Mitigation costs
• Mitigation costs money:

• Enhanced labour and material costs

• Additional costs for temporary works
• Delay damages / lost revenue

• What is the cost of delay vs. mitigation?

• Who will pay for the mitigation?

• Is there a clear obligation to mitigate in the Contract?
What is Acceleration?
• Mitigation / acceleration terms used interchangeably, they
are basically the same

• Typically considered to be a difference from a claims

perspective:

• Mitigation – general measures to reduce delay

• Acceleration - a subset of mitigation where minimising

delay risk owned by other party in return for payment
 Acceleration Measures and Costs
SC / Labour /
Increased Lost Material Additional Increased Higher
Acceleration Measure
Supervision Efficiency Cost Equipment Defects Safety Risk?
Premiums

1) Re-sequencing /
Concurrent working X X X X

2) Increasing Resources X X X X
3) Increased Working
Time: Additional Shifts
and/or Overtime
X X X X X X

4) Temporary Works X X X
 Constructive Acceleration
• “Constructive” Acceleration” is acceleration implemented as a result
of pressure to complete on time in the face of a valid EOT claims,
without an agreement Employer agreement for acceleration costs

• Origin – a US Law doctrine

• Numerous issues with the claim outside the US

– Extremely limited support under most non-US laws, including

common law countries

• This is a contractual/legal issue about recovering acceleration costs

The Acceleration Dilemma
Arbitration/DAB? What happens Accelerate?
when the
Employer /
Engineer refuses
to grant a genuine
extension of
time?
 The US Approach 1

1) There must be an excusable delay;

2) The Contractor must have must have notified in a timely manner and
actually requested time-extension;

3) The Employer / Engineer must have been delayed or refused the EOT;

4) The Employer/Engineer must have (expressly or implicitly) directed the

contractor to complete within the original completion period, and;

5) The Contractor must actually implement acceleration and incur costs.

1 E.g. Fraser Construction Co v United States (2004) 384 F3d 1354, 1361
 Issues with Constructive
Acceleration Outside US
1. Lack of consensual agreement to accelerate

2. Lack of clear instruction to accelerate

3. Engineer has no authority to instruct acceleration for Excusable delay (e.g. RB 99 SC 8.6)

4. Engineer is not the agent of the Employer (and cannot therefore bind the Employer)

5. Lack of serious threat (depending on when LADs will be deducted, if Bond will be pulled)

6. Shared responsibility for delay – justification for Engineer EOT delay?

7. Access to ADR (declaration on EOT entitlement available through Arbitration, or DAB)

1 See Whaley, McAdam and Crowe (2015)
 FIDIC Perspective
1) No express mechanism to compensate acceleration costs under FIDIC

2) Engineer has no express authority to instruct acceleration (except for Contractor

delay (RB Cl. 8.6)

3) However - “Costs” means “all expenditure reasonably incurred” (RB 99 Cl.

1.1.4.3)

1) Could acceleration costs simply be the “Costs” from compensable event?

2) To be “reasonably incurred”, Contractor must competently deem

acceleration cheaper than prolongation before acceleration
commences

3) Not strictly constructive acceleration, narrow area of application

 CPM/Scheduling in Acceleration
Claims
• Schedule records the forecast effect of an actual delay

• If a delay is critical based on the prevailing plan for the work,

each day of delay results in a corresponding day of delay on
planned completion

• Schedule is the main tool to show effects of mitigation

• The critical path / delay before the mitigation

• The critical path / delay after the mitigation

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 CPM/Scheduling in Acceleration
Claims
• Therefore, important to have a series on reliable
contemporaneously updated schedules, i.e. monthly

• Demonstrate the effect of actual delay on the planned

intent

• Demonstrate the effect of the mitigation measures

• Keep programmes showing forecast completion

using original plan vs mitigation plan

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 CPM/Scheduling in Acceleration
Claims
• But crucial to differentiate:

• Planned mitigation – determined prospectively

• Actual mitigation – determined retrospectively

• Planned mitigation sometimes doesn’t happen, actual

mitigation sometimes wasn’t planned

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 CPM/Scheduling in Acceleration
Claims
• The contemporaneous delay analysis
methodologies discussed in session 1 to 4 have the
same applications here

• Time Impact Analysis

• AP v AB WA
• Time Slice Windows Analysis

• A Time Slice Windows Analysis can be developed

during the project, to capture the effects of
acceleration and re-sequencing
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Schedule disruption
▪ Disruption (as distinct from delay) is a disturbance,
hindrance or interruption to a Contractor’s normal
working methods, resulting in lower efficiency.
▪ Disruption claims relate to loss of productivity in the
execution of particular work activities. Because of the
disruption, these work activities are not able to be
carried out as efficiently as reasonably planned (or as
possible).
▪ The loss and expense resulting from that loss of
productivity may be compensable where it was caused
by disruption events for which the other party is
contractually responsible.

▪ SCL DDP Rev 2 p 43

Productivity v Efficiency?
▪ Productivity: The amount of work produced (Hours
per m3, man-days per floor, etc).

▪ Efficiency: Measure of the difference between

planned and actual productivity

• Efficient = meeting planned productivity

• Inefficient = not meeting planned productivity

▪ Terms like “lost efficiency”, “low productivity” etc all

mean basically the same thing

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Schedule disruption
▪Methods for assessing disruption

• Total cost (global claim)

• Measured mile analysis

• Earned value analysis

Total Cost (global) claim
▪Actual cost less budgeted cost
linked to long list of events
▪Can be improved by drilling down to
area etc.
▪Theoretical, unlikely to have much
success on this basis
Measured mile analysis
▪ Comparison of actual productivities before/after and during disruption event

• Blockwork at 10m2 per hour May to June

• Blockwork at 5m2 per hour July – access restrictions
• 0.5 hours lost productivity each hour during July

▪ Essential to have daily labour records showing:

• Trade
• Location (Level, area, room)
• Activity undertaken
• Hours worked during the day
• Disruption events that day

▪ Measured mile is straightforward with the correct records – no complicated analysis involved,
just some simple calculations

▪ But these records rarely kept in practice, hence measured mile analysis rarely used effectively
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Earned Value analysis
▪ Comparison of budgeted hours for work incurred to actual hours for that work

• 10,000m2 blockwork budgeted at 1,000 hours between May to June

• 10,000m2 blockwork actually completed with 2,000 hours between May and July
• 0.5 hours lost productivity each hour during July

▪ Fully resourced schedule / BOQ man-hours abstract required for budgeted hours

▪ Essential to have daily labour records showing:

• Trade
• Location (Level, area, room)
• Activity undertaken
• Hours worked during the day
• Disruption events that day

▪ Again, Earned Value analysis is straightforward with the correct records, but these
records rarely provided in practice
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Summary
▪ Delay risk management requires avoidance and minimisation
(mitigation)

• Acceleration is a sub-set of mitigation involving payment

• Constructive acceleration is a sub-set of acceleration involving disputed
instruction to accelerate

▪ Mitigation can be planned or actual (prospective or retrospective)

▪ CPM scheduling crucial to demonstrate effects of mitigation

• Forecast delay before and after mitigation

▪ Disruption relates to cost of low productivity

• Detailed records required to quantify disruption
• Straight forward if records available
• Records rarely available in practice
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Discussion and Q&A
▪ Thanks!

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