Delay Analysis References, Categories and Perspectives

Planning and Project Management Consulting

1. WHAT IS DELAY?

DELAY is an act or event that extends the time required to perform tasks or activities under a Contract . It is usually reflected as additional days of work or as delayed start of activities.

DELAY May or may not include change(s) in the scope of work of activity(s) or the Contract.

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2. Delay Analysis is normally conducted to grant an Extension of Time

In such a case, it's required to define and establish the following:

• Delay Events

• Contractual Procedure

• EOT Entitlement

• Delay Analysis

• EOT Claim

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3. Delay Analysis Categories

Delay analysis approaches are classified under multiple references via types, timing, and basis of delay analysis as follows:

3.1. Theoretical Based vs Actual Based Methods

3.1.1. Theoretical Based Methods

Global Impact method

Considers an increase in work scope as directly proportional to time and ignores timing, concurrency and own delays.

As-planned impacted method

Impacts delays upon the original baseline and does not consider mistakes in the baseline or events at the time of the delay.

As-built "but for"

Inconsistent with the facts and relies upon the as built programme demonstrating that all delay is excusable.

3.1.2. Actual Based Methods

As-planned -v- as built method

Simple and visible in a single window but not suitable for complex projects with competing and concurrent delay.

Windows/snap shot or update method

The use of electronic progress reports to analyse incrementally the changes to the as planned programme with as built assistance.

Impact/Update – Timeslices

Driven by a delay schedule and subject to time slices within which the anticipated and actual progress is analysed.  Strong in addressing mitigation and concurrent delays.

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3.2. Interim vs Final Extension of Time

3.2.1. Prospective Delay Analysis:

Analysis of facts associated with delay events during construction of a project and the estimation of their effect upon the planned completion date of a project. (Interim Extension of Time).

3.2.2. Retrospective Delay Analysis:

Analysis of facts associated with delay events after completion of the construction period of a project. (Final Extension of Time).

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3.3. Additive, Subtractive & Analytical

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3.4. RICS EOT Professional Guidance

If a delay has been caused by Employer Event (EE), then in general, the contractor will be entitled to EOT. 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.

Measurement of Delay: from contract completion date to the actual completion date (retrospective), or from the current contract completion date to the projected completion date (prospective). It's important to agree on the benchmark programme that will be used (BIM can help) to carry out the reviews to resolve questions of culpability for delay or to estimate the likely delay period.

Methods of delay analysis:

-Simple and relatively simple

3.4.1. Overview of the facts: It deals with relatively straight forward claims when the cause and delay are apparent.

3.4.2. Comparing actual and planned progress: It's comparing the activities timing using the contemporaneous documents to review the reasons of discrepancies/ delay.

-Detailed, forensic and more reliable

3.4.3. Critical path analysis (CPA): Based on the logic-link using either planned (prospect. or retrosp.) or as-built programme.

3.4.4. Focused methods of analysis: Over shorter periods using an updated programme (prospective: TIA), or particular periods with as-built data (Retrospective: window or time slice).

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3.5. SCL Delay Analysis Protocol

The 2nd edition of the Protocol has been published in 2017 and supersedes the 1st edition published in 2002.

The object of the Protocol is to provide useful guidance on some of the common delay and disruption issues that arise on construction projects to provide a means by which the parties can resolve these matters and avoid unnecessary disputes.

It is divided into 22 Core Principles and 3 parts of guidance & 2 appendixes.

Purpose of extension of time

The benefit to the Contractor of an EOT is to relieve the Contractor of liability for damages for delay (usually liquidated damages (LDs) for any period prior to the extended contract completion date and allows for reprogramming of the works to completion.

The benefit of an EOT for the Employer is that it establishes a new contract completion date, prevents time for completion of the works becoming 'at large', and allows for coordination / planning of its own activities.

3.5.1. Prompt Action – Prospective Analysis

Do not 'wait and see' regarding impact of delay events (contemporaneous analysis)

Applications for an EOT should be made and dealt with as close in time as possible to the delay event. A 'wait and see' approach to assessing EOT is discouraged.

Where the Contractor has complied with its contractual obligations regarding delay events and EOT applications, the Contractor should not be prejudiced in any dispute with the Employer as a result of the CA failing to assess EOT applications.

EOT entitlement should be assessed by the CA within a reasonable time (4.1: not later than one month) after submission of an EOT application by the Contractor.

The Contractor potentially will be entitled to an EOT only for those events or causes of delay in respect of which the Employer has assumed risk and responsibility (called in the Protocol Employer Risk Events) that impact the critical path.

Contemporaneous analysis of delay

(Is it an ERE?)

The Contractor should generally submit a sub-network (sometimes called a 'fragnet') showing the actual or anticipated effect of the Employer Risk Event and its linkage into the Updated Programme.

Simply stating that Employer Risk Events have occurred and claiming the whole of any delay apparent at the time of the events is not a proper demonstration of entitlement.

These events vary between the different standard forms of contract, and care is needed when reading them. When granting or refusing an EOT, the CA should provide sufficient information to allow the Contractor to understand the reasons for the CA's decision.

Although the Updated Programme should be the primary tool for guiding the CA in its determination of an EOT, it should be used in conjunction with the contemporary evidence to ensure that any resulting EOT is both reasonable and consistent with the factual circumstances.

It will also be necessary for the parties to apply common sense and experience to the process to ensure that all relevant factors are taken into account, and that any anomalous results generated by the delay analysis are properly managed. Any resulting EOT must be consistent with the contractual requirements regarding entitlement.

Incremental review of extension of time: Where the full effect of an Employer Risk Event cannot be predicted with certainty at the time of initial assessment by the CA, the CA should grant an EOT for the predictable effect. The EOT should be considered by the CA at intervals as the actual impact of the Employer Risk Event unfolds and the EOT increased (but not decreased, unless there are express contract terms permitting this) if appropriate.

3.5.2. Analysis time-distant from the delay event

Guidelines on dealing with disputed extension of time issues after effect (the fact) or completion of the project – retrospective delay analysis

The table below summarises the types of analysis that can be conducted :

Delay impact is determined in one of two different ways. A prospective delay analysis identifies the likely impact of historical progress or delay events on a completion date. The conclusions of a prospective delay analysis may not match the as-built programme because the Contractor's actual performance may well have been influenced by the effects of attempted acceleration, re-sequencing or redeployment of resources in order to try to avoid liability for liquidated damages or due to other Employer and Contractor Risk Events. A retrospective delay analysis identifies the actual impact of the delay events on the identified actual or as-built critical path.

3.5.3. OTHER TECHNIQUES

Other methods, which may be reasonably deployed in particular circumstances having considered the criteria above, include: project wide retrospective as-planned versus as-built analysis (i.e. not in windows), time chainage analysis, line of balance analysis, resource curve analysis, and earned value analysis.

This can include the following approaches as well:

In order to avoid or at least minimise disputes over methodology, it is recommended that the parties try to agree an appropriate method of delay analysis before each embarks upon significant work on or after the event delay analysis.

The Choice of technique depends on:

(a) the relevant conditions of contract;

(b) the nature of the causative events;

( c) the nature of the project;

( d) to ensure a proportionate approach, the value of the project or dispute;

( e) the time available;

(f) the nature, extent and quality of the records available;

(g) the nature, extent and quality of the programme information available; and

(h) the form in which the assessment is being made.

Irrespective of which method of delay analysis is deployed, this is particularly relevant where there is a significant risk that the remaining duration projections, logic links, calendars and constraints within the baseline programme (preferably the Accepted/Updated Programme) might produce anomalous results.

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3.6. Schedule Delay Analysis - American Society of Civil Engineers, Construction Institute Standard

ANSI/ASCE/CI 67-17 Chronology, Responsibility & After the fact

CHRONOLOGY OF DELAY

Delays Should Be Evaluated as They Occur in Chronological Sequence

A Schedule Delay Analysis Should Reflect an Analysis of Prior Entitlement so as to Reflect a Current Adjusted Completion Date Prior to Evaluating Delay

Consideration Should Be Included as to How Delays Were Evaluated by the Participants During the Project

Evaluation of Delay Chronology Should Be Documented and Supported with Contemporaneous Records

RESPONSIBILITY FOR DELAY

A Schedule Expert Typically Can Identify the Party Responsible for a Delay from the Contemporaneous Records, Interviewing Project Personnel, and Reading Deposition Testimony, and May Rely on Technical Experts or Fact Witnesses in Opining on Liability

During a Project, the Contractor Should Provide the Owner with a Notice of Delay for Excusable Delays, Followed by a Request for a Change in Accordance with the Contract.

Responsibility Analysis Should Be Supported by a Factual Chronology Based on the Contemporaneous Project Performance Records and Referencing the Remedy-Granting Clause of the Contract

Schedule Experts Should Not Opine Beyond Their Expertise. If Necessary, a Technical Expert Should Be Engaged on Whose Opinion the Schedule Expert Can Rely

Once a Technical Expert's Finding as to Which Party Was Liable for the Delay Event Is Formed, a Legal Review May Be Made with Counsel Consistent with Legal Precedent in the Project Jurisdiction

CHANGING SCHEDULES AFTER THE FACT

The Schedules Should Be Presumed Correct as They Were Used During the Project, Unless Otherwise Shown to Be Inaccurate

After-the-Fact Changes to Schedules Used During the Project Should Be Minimized and Only Made Where Necessary

Any Changes Made to the Contemporaneous Record of Project Schedules Should Be Carefully Identified and Documented

When Possible, the Preference for Dealing with Inaccurate Schedules After the Fact Is to Make Corrections, Rather than Abandon the Schedules, Subject to the Nature and Scope of the Corrections

Changes to Schedules Generally May Be Made to Correct Necessary Physical or Contractual Constraints but Typically Not the Contractor's Preferential Sequencing

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3.7. AACE Delay Analysis Recommended Practices RPs

RP 52R-06 Prospective Time Impact Analysis & RP 29R-03 Forensic Schedule Analysis

3.7.1. Prospective Time Impact Analysis

Most forms of contract contain language which appears to be more prospective in terms of the approach to delay analysis. Therefore, TIA is widely used. However, although the prospective direction of the contract, a retrospective approach to assessing extension of time can be permissible in some cases in line with the general approach to the assessment of damages.

3.7.1.1. AACE  52R-06 TIA Flowchart – 8 Steps

1/8 A Schedule Franget: Subset of activities involved directly with the event (Collect data – Use simple description – Fewest no. of Activities – Logic insertion – Split the existing delayed activity into two activities).

2/8 Selecting the Unimpacted Schedule: The last reviewed update prior the event. If doesn't exist, then it should be prepared. Constraints to be reviewed and the normal schedule checks between the actual dates and data/status date.

29R-03 MIP 3.6.: Select the planned network to be utilized as the "un-impacted schedule (the baseline, or the contemporaneous update that existed just prior to the initial delay).

A TIA is only valid if the CPM software being used to model the effects of an event properly shows the effects of the CPM calculations.

3/8 Franget Insertion: Inserting the accepted fragnet to the unimpacted schedule. Check the logic (zero duration check).

Mitigation to be considered if applicable or already performed/forensic mainly for the delayed path including the out of sequence activities (if not, to be stated). This should be documented in the narrative or schedule basis.

4/8 Re-compute the CPM.

5/8 Paths Analysis: Identify the activity that will be used to measure the impact by the analysis of all critical and near critical paths, noted and documented.

6/8 Determine the Correct Impact. Use the unit of measurement specified in the contract whether it's working days or calendar days.

7/8 Determine the Delay: The delay can be different from the duration of the event. The float belongs to whom uses it first (The contractual and legal requirements to be checked).

8/8 Eliminate pervious concurrent EOTs. No single date may be assigned more than the excusable delay.

Comparing with Actual Observance (Common Sense Test).

3.7.1.2. Enhancement & Consideration – AACE 29R-03 (Good to include)

The MIP of the modeled additive method (3.6 MIP) can be also applied when required as per AACE RP 29R-03 (Forensic Schedule Analysis):

Determination and Quantification of Excusable and Compensable Delay. An additive-modeled schedule by itself does not account for concurrent delays and compensability. However, it is possible to analyze for approximate concurrency by comparing two additive-modeled schedules (one by inserting all owner-caused and force majeure-caused impact events into the baseline & another one by inserting all contractor-caused impact events into the baseline).

Specific Implementation Procedures and Enhancements. Global Insertion (total impact)- Stepped Insertion (in chronological order).

Considerations in Using Min Protocol. Suited primarily for the use in identifying and quantifying potential delays rather than actual delays - Easy & doesn't need as-built schedule - Does not account for concurrent/pacing delays/acceleration .

3.7.1.3. Additional Validation –AACE 29R-03

The SVPs of the modeled additive method (3.6 MIP) can be also applied when required as per AACE RP 29R-03.

Baseline Enhancement: Each activity to be 0.5% to 5% of contract value - Separate as per responsible party - Add activities to enhance the level of detail - Divide act.s based on progress records.

Update Investigation: If update is the primary source, check: (Actual dates vs data date - Using the most reliable source/ interviews if possible - Changes in IDs & scope) - Accuracy of dates of significant activities to be 1 working day, and other activities to be 5 days - Consistency of dates along the updates - Change in longest path/ controlling activities.

Update Enhancement: Tabulate all sources of data - Show discrete activities for delay events and influences - Subdivide vague or general activities.

Evaluate Pacing or Acceleration (if exist).

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3.7.2. Retrospective Delay Analysis (Forensic)

Forensic Schedule Analysis:

A technical field of studying and investigating the schedule calculation using different methods (usually requires many subjective decisions by professionals) to measure and quantify delay focusing on causation to resolve EOT disputes.

WHICH TECHNIQUE TO USE? No forensic schedule analysis method is exact. The level of accuracy of the answers produced by each method is a function of the quality of the data used therein, the accuracy of the assumptions, and the subjective judgments made by the forensic schedule analyst. Legal considerations (3): Contractual requirements, ADR Forum & Legal requirements. Technical considerations (3): Purpose, Data availability and reliability & Complexity of the dispute. Practical considerations (5): Size of the dispute, Budget for analysis, Time allowed, Analyst experience & Past history in the project).

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Choice of the Appropriate Method (CMS)

How is the question of evidence as to causes and periods of delay dealt with?

The parties in many cases appoint programming (schedule) experts/delay analysts as expert witnesses; each such expert will select an appropriate method of analysis out of a number of possible methods which are discussed in detail in AACE RP-FSA and ASCE SDAS some of which are also included in the Society of Construction Law's Protocol. Whilst the choice of an appropriate method will be governed by a number of factors, including the available evidence, there is a general preference for contemporaneous methods where possible (i.e. those methods which assess the impact of delays by reference to contemporaneous evidence).

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4. Dispute Crystallization (SCL)

Finally, if the Contractor does not agree with the CA's decision, it should so inform the CA immediately. Disagreements on EOT matters should not be left to be resolved at the end of the project. If no agreement can be reached quickly, steps should be taken by either party to have the dispute or difference resolved in accordance with the contract dispute resolution procedures.

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5. Relevant Topics Addressed in Other Articles:

5.1. Concurrent Delay: https://www.linkedin.com/pulse/concurrent-delay-analysis-approaches-mohamed-maged-q89tc

5.2. EOT Claims: https://www.linkedin.com/pulse/extension-time-claims-preparation-review-mohamed-maged-rn0kc

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References:

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Mohamed Hegazy
Project Control Manager
Yanbu
magedkom@yahoo.com
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