Report Drby: Jonathan Harding

FORENSIC SCHEDULE
Lecturer:
For: College Hendrick F Prinsloo
of Contract Management

Date: 11 June 2022

th

ANALYSIS
FS420 ASSIGNMENT
(SPRING 2022)

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FS420 Assignment
Introduction
This report provides an assessment, including delay analysis, for a steelworks subcontract in
which the contractor has noted the existence of design anomalies requiring rectification
works.

A notification of intent to apply for a compensable Extension of Time (EOT) has been
submitted and will be discussed in the calculation of prolongation costs and summary
sections.

The report will also address issues of concurrent delay and provide a timeline of events
before and after the delay event, leading to the final completion date and ultimate delay to the
critical path.

A set of documents has been made available, including a baseline programme, monthly
programme updates, as-built programme, and an activity predecessor report. These can be
found in the appendices section.

The chosen contract form is the FIDIC Red Book (2017), and I am assuming the role of an
independent assessor.

DELAY ANALYSIS

Initially, I chose Window Analysis as my preferred method, for the following reasons:

- Updated programmes throughout the duration of the project were available.

- The actual effect of the delay event is known, and therefore a retrospective method of
analysis was required.
- An as-built programme with monthly updates was available.

The chosen method of analysis allows the identification of delays within specific time
windows.
Window Analysis
Baseline (As-Planned) Programme
Walkway/Handrailing/Ladders/Finishes delay (Critical Path)
Cathodic Protection. Float = 48 days.
Baseline completion is 8th April.

Window 1 (W1)
Updated Programme end January
Walkway/Handrailing/Ladders/Finishes delay (Critical Path) = 11 days.
Cathodic Protection delay = 19 days. Float = 29 days.
Updated forecast completion is 19th April.
Window 2 (W2)
Updated Programme end February
Cathodic Protection delay (New Critical Path) = 64 days. Delay to CP = 17 days.
Walkway/Handrailing/Ladders/Finishes delay (Previous Critical Path) = 14 days.
Updated forecast completion is 25th April.

Window 3 (W3)
Updated Programme end March
Walkway/Handrailing/Ladders/Finishes delay (New Critical Path) = 23 days.
Cathodic Protection delay (Previous Critical Path) = 65 days
Updated forecast completion is 1st May.
Window 4 (W4)
Updated Programme end April
Walkway/Handrailing/Ladders/Finishes delay (Joint Critical Path) delay = 20 days.
Cathodic Protection delay (Joint Critical Path) = 67 days. Delay to CP = 20 days.
Actual completion is 28th April. Delay to CP = 20 days.

I then decided to use As-Planned vs As-Built analysis, to establish the compound effect of a
number or series of delays and decide if the initial identified delay event was the sole cause
or dominant cause of the delay to the critical path.
As-Planned vs As-Built Analysis

Concurrent Delays

By definition, a concurrent delay is deemed to occur when an excusable delay event

(employer’s risk) overlaps with a non-excusable delay event (contractor’s risk), causing an
overall delay to the completion date.

It can be seen from the Window Analysis in this report, that activity ‘Walkway Support-1’
(A1120) is 10 days in delay at the end of January (Window W1), with the subsequent activity
‘Walkway Support-2’ (A1130) 18 days in delay by the end of February (Window W2).

At the time of the delay event associated with the walkway, there is a concurrent delay
associated with ‘Cathodic Protection Procurement’ (A1030). By the end of Window W2, an
additional (previously unspecified) activity ‘Cathodic Protection Testing’ (A1160) has been
incorporated into the updated programme, with a total forecast delay of 64 days. Cathodic
Protection then became the new critical path.

Following review of the exchange of correspondence, the original delay due to the
rectification works associated with walkway no. 5, notified by the contractor on 12 th February,
and accepted by the employer on 20 th February, is an excusable delay event (employer’s
risk). The concurrent delay to ‘Cathodic Protection Procurement’ appears to be directly
attributable to the contractor and is a non-excusable delay event (contractor’s risk). There is
no supporting documentation available regarding this delay event.

At project completion, and as highlighted in Window W4 (end April), both delay events have
occurred at approximately the same time, giving rise to separate unrelated critical paths, with
the same completion date of 28 th April, and total delay to the critical path of 20 days. In this
case, the effect of both the employer’s risk and contractor’s risk represent a concurrent delay,
as the effect is experienced at the same time.
Timeline of Events

January 1st
Project Start Delay = 0 days

End January (Window W1)

Walkway Installation Delay = 11 days (Critical Path)
Handrailing Delay = 12 days (Critical Path)
Cathodic Protection Delay = 20 days
Ladders Delay = 4 days
Finishes Delay = 11 days (Critical Path)

11th February 2000 – Record No.1 (Proposal for rectification of walkway no. 5)
12th February 2000 – Record No.2 (Notification of delay and additional cost)
20th February 2000 - Record No.3 (Acceptance of proposal/Request to proceed by employer)

End February (Window W2)

Walkway Installation Delay = 14 days
Handrailing Delay = 14 days
Cathodic Protection Delay = 64 days (Critical Path)
Ladders Delay = 12 days
Finishes Delay = 14 days

3rd March 2000 – Record No.4 (Request for FI and notification of a delay of 12 more days)
6th March 2000 – Record No.5 (FI No. 0011 Issued)

End March (Window W3)

Walkway Installation Delay = 28 days (Critical Path)
Handrailing Delay = 24 days (Critical Path)
Cathodic Protection Delay = 65 days
Ladders Delay = 25 days (Critical Path)
Finishes Delay = 23 days (Critical Path)

End April (Window W4)

Walkway Installation Delay = 28 days (Critical Path)
Handrailing Delay = 24 days (Critical Path)
Cathodic Protection Delay = 67 days (Critical Path)
Ladders Delay = 20 days (Critical Path)
Finishes Delay = 20 days (Critical Path)

Notifications

Notification of a compensable delay event was submitted in Correspondence Record No. 2,

on 12th February 2000. It should be noted that the EOT and any additional costs were not
quantified in the correspondence.

The FIDIC Red Book (2017) requires that notification is to be made in writing within a period
of 28 days (Sub-Clause 20.2.1), whilst Record No. 2 was submitted 42 days following project
start.

It is not immediately clear when the contractor should have reasonably been expected to be
aware of the design anomalies. To comply with contractual provisions, the contractor would
need to have known of the design issues not before 15 th January 2000. As ‘Walkway
Alignment’ (Activity A1140) wasn’t planned to start until 31 st January 2000, it would be difficult
to prove beyond a reasonable doubt that the contractor was or should have been aware.

Correspondence Record No. 3 (Employer to Contractor) on 20 th February 2000, accepts the

contractor’s proposal, and requests them to proceed immediately.

Regarding contractor’s claims, the FIDIC Red Book (20.1) states that “Within 42 days after
the contractor became aware (or should have become aware) of the event or circumstance
giving rise to the claim, or within such other period as may be proposed by the contractor and
approved by the engineer, the contractor shall send to the engineer a fully detailed claim,
which includes full supporting particulars of the basis of the claim and of the EOT and/or
additional payment claimed.”
Although Correspondence No. 2 was submitted by the contractor on 12 th February 2000, this
hardly constitutes a fully detailed claim, with neither quantification of the EOT claim, or the
additional costs.

Correspondence No. 4 (3rd March 2000) from the contractor, advises the employer that the
additional works will delay the walkway installation by 12 more days. The use of the word
‘more’ is confusing, as this is the first time that the EOT has been qualified in writing.
However, this appears to be correct, as at the time of the correspondence (Window W2),
‘Walkway Installation’ (A1150) is 14 days in delay.

Correspondence No. 5 from the employer, is issued on 6 th March 2000, instructing the
contractor to proceed. This instruction implies that the engineer agrees with the timeline of the
submission. At the time of receipt of Field Instruction No. 0011, the critical path is now
‘Cathodic Protection’ and not ‘Walkway Installation’.

EOT Claim/Prolongation Costs

The FIDIC Red Book (2017) requires that EOT claims are notified in writing and provide
necessary supporting documentation. This should typically contain:

- A description of the delay event.

- Contractual compliance and right to claim, i.e., excusable delay event.
- Impact on critical path and baseline completion date.
- Identify how the EOT was calculated.
- If the delay event is deemed compensable, show how this is calculated.

Field Instruction No. 0011 instructed the contractor to proceed with rectification works as
detailed in Correspondence Record No. 4, for a delay to the walkway installation of 12 days,
with no additional costs specified. The contractor would normally be entitled to receive an
EOT with associated prolongation costs of 12 days, as per the instruction.

Although the critical path had been delayed by 20 days, the contractor only submitted an EOT
claim for 12 days, so this should represent the amount of prolongation costs under
consideration.

It is recommended that, due to the lack of information available to substantiate the additional
cost, if prolongation costs are to be awarded, they should be calculated based upon an
average time related cost per day.
SUMMARY

Based upon the analysis carried out in this report, the critical path of the project is subject to
two separate delay events, one being an employer risk event (Walkway – Design anomaly),
and the other a contractor risk event (Cathodic Protection), the effect of both being
experienced at approximately the same time.

The English courts approach defines a concurrent delay as “ a period of project overrun which
is caused by two or more effective causes of delay which are of approximately equal
causative potency” (Abyard Abu Dhabi v SD Marine Services, adopting phrase originally from
Mr. John Marrin QC). Either of the delay events, if they had happened individually, would
have caused delay, where one is a relevant event, and the other is not.

Under English Law, the above definition is the most likely to be accepted in arbitration.

Generally, the contractor would be entitled to the EOT claimed (12 days), but no financial
compensation. The argument being that the contractor would have suffered the same losses
because of the delay event entirely within their own control (Cathodic Protection).

It should also be noted that the critical path delay is 20 days, with the contractor claiming an
EOT of only 12 days. It may also be reasonable to assume that the contractor could
legitimately claim an EOT at least for an additional 3 days, whilst waiting for the issuance of
Field Instruction No. 0011. Timesheets, as signed by the site superintendent, and as
requested on the FI, would need to be reviewed to identify the exact duration of the employer
risk delay event.

Interestingly, in more recent arbitrations under English Law, the answer may now be that the
contractor should not be entitled to either an EOT or additional loss or expense.

“Coulson LJ in North Midland Building Ltd v. Cyden Homes Ltd  [2018] EWCA Civ.1744. North
Midland is the first reported case in which a concurrency clause has been considered by an
English court. The principal argument advanced by the contractor, North Midland, was that a
concurrency clause was incompatible with the prevention principle. That argument was
rejected at first instance by Fraser J. The appeal against that decision was dismissed by the
Court of Appeal”.

Under Scottish Law, an apportionment approach may be considered, where if there are
concurrent causes of delay, the responsibility for the delay would be apportioned between the
relevant event and the contractor risk event. This is not applicable under English Law.

Finally, it is my opinion that a commonsense approach should be adopted, as at the time of

the delay event due to the design anomaly (employer risk), this was the dominant cause of
delay to the critical path and was the relevant event.
There is no available documentation to establish the reason for the contractor non-excusable
delay event (Cathodic Protection), and no explanation why ‘Cathodic Protection Testing’
(A1160) was completely omitted from the baseline programme. It can only be assumed that
the contractor neglected to allow for this activity.

It is for this reason that I conclude that the contractor should be given an EOT of 12 days, but
with no additional costs. The additional delay to the critical path, due to the contractor’s own
delay event, can be used as further justification for no payment being made for any perceived
financial loss on the part of the contractor.

The contractor appears to have acted in good faith, with attempts to mitigate the effects of
both delay events evident between Window W4 & W5, and this should be taken into
consideration.

APPENDICES