IIQS UAE, Dubai – CPD 6/2018

DELAY ANALYSIS AND EXTENSION OF

TIME (EOT)

Presented by: Rohit Singhal

C.E.O., Masin Projects
 ABOUT US

Having Experience of more than Have worked in 15 countries and Involved in all major construction
100 domestic and international handled more than USD 2 Billion arbitration. Expert in delay
arbitrations in construction and worth of construction disputes analysis for delay claims/
engineering sector and claims damages offices in Delhi/
Mumbai/ Dubai/ Muscat

www.masinproject.com 2
Typical Delay Events- Construction
 Change Orders- Instructions for Change
 Contractor caused delays including inefficiency, lack of resources
 Defective and deficient FEED
 Interface delays
 Delay in approval of drawings/documents/submissions
 Front not being released on time
 Changes in Owner’s Quality Requirements
 Statutory Approvals
 Late Delivery of Equipment's and Materials
 Variation in estimated quantities
 Strikes
 Weather Conditions/Force Majeure
 Late issuance of Notice to Proceed
 Payment Delays
 Delays in Owner’s decisions

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Delays - Liquidated Damages
 Equitable allocation of Responsibility for Project Delays is essential for the
resolution of various construction disputes.
 Contractors frequently assert that they have been delayed due to reasons beyond
their control.
 Owners often remain unconvinced that the Contractor is legitimately entitled for
time extension or delay, acceleration and loss of productivity damages.
 Large sums of money may hinge upon the outcome of the dispute over project
delays.
 Consequently, a thorough schedule analysis of all project delays is essential for the
equitable resolution of delay and impact related disputes.
 Most construction contracts allow Owner to recover either liquidated damages or
actual damages due to delays caused by the Contractor.
 Contractor may contractually also entitled to following:-
 Extended stay compensation due to Owner caused delays
 Acceleration or disruption costs
 Loss of Productivity for reasons beyond Contractor’s control, change of scope,
Owner’s interference etc. 4
What is Delay Analysis?

“… refers to the study and investigation of events using CPM

or other recognized schedule calculation methods for
potential use in a legal proceeding.”

“… the study of how actual events interacted in the context

of a complex model for the purpose of understanding the
significance of a specific deviation or series of deviations
from some baseline model and their role in determining the
sequence of tasks within the complex network.”

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 Delay Analysis
 Delay Analysis focuses on comparing baseline, as built or updated schedules to
identify and quantify the delays on the critical and near critical path schedules.
 The schedule might be existing or developed and could be in simple excel
format or could be in MS Projects/Primavera software formats.
 As part of this analysis following steps are undertaken by Expert Delay Analyst:-
 Identify the delay events and the duration of the same
 Origin and quantification of the delay is done
 Identify who is responsible for the delay event with proper screening of the
supporting documentation.
 Responsible parties could be Owner, Contractor or Third Parties.
 Process involves extensive review of the project documentation to analyze
and understand the cause and effect relationship attributable to each party.
 Useful for both Contractors and Owners- A scientific methodology used for
Extension of Time claims

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Types of Delay Analysis

 Based on circumstances, suitable

methodology i.e. Time Impact, As-
Built But-For, and Windows analysis is
adopted; which consider planned
versus actual durations, labor and
equipment resources, means and
methods, contractual requirements, as
well as the actions and inactions of the
parties.
 Two standards governing
methodology of Delay Analysis’:-
 Society of Construction Law
Guidelines
 Association of Advancement of
Cost Engineering-RP
The Society of Construction Law Delay and Disruption Protocol February, 2017
(SCL Protocol) introduced 6 (six) different methods for delay analysis

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APPROACH – DELAY ANALYSIS
METHODOLOGIES

Retrospective Analyses Prospective Analyses

LOOKING BACK LOOKING FORWARD

• As‐planned versus • Time‐Impact Analysis

As‐built • Impacted As‐planned
• As‐Built But For

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APPROACH – AS‐PLANNED VS AS‐BUILT
(APAB)

• Most basic method of analysis

• Observational – no changes are made to the programme
• Straightforward comparison between the planned vs the actual performance of the work
• Can only be carried out retrospectively (requires as‐built programme/or at least the overall
as‐built completion date)

STRENGTHS WEAKNESS

• is very simple and therefore • Static critical path

easy to understand. • fails to fulfil the fundamental
• can be performed with requirement to demonstrate the causal link
rudimentary base data (e.g. between a delay event and its alleged effect.
when detail and logic of the as planned • does not deal adequately with concurrent
programme is unavailable, and no detailed delay.
progress records other than the overall
as‐built programme are available).
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Compare As‐Planned vs As‐Built

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 APPROACH – IMPACTED AS‐PLANNED (IAP)

• is a prospective methodology
• delay effect is measured by imposing events on a model of the original programme (Baseline)
• does not rely on any actual progress that has been made
• requires a robust and reliable original programme that reflects the indented sequence and the
Scope of Work

STRENGTHS WEAKNESS
• relatively simple to carry out and to • cannot be used for complex projects
understand. • used to quantify potential delays rather and
• No as‐built required (likely choice when actual
planned programme is available, no • concurrent delays easily overlooked
significant changes in the sequence during • assumes that the baseline was achievable
the project execution, few • does not take actual progress/ resources into
delaying events, and when there is little or account
no progress records) • not reliable in dispute resolution

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APPROACH – IMPACTED AS‐PLANNED (IAP)

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 APPROACH – TIME IMPACT ANALYSIS (TIA)
• prospective and dynamic method – but can be applied retrospectively
• takes account of progress and timing of delay events on the Works
• requires reliable as‐built data to update the programme (hence, if detailed and
regular progress data is not available then this method cannot be used)
• a reliable baseline programme is essential (ideally reflects the execution of the
planned project using sound construction logic)
• often undertaken in time slices (windows)

STRENGTHS WEAKNESS
• has a proven track‐record in forensic application • time consuming (to determine the factual
background and correct logic associated with
• preferred method of the SCL Protocol progress records and delay events)

• based on a dynamic and changing critical path • requires considerable degree of expertise and
technical knowledge
• demonstrates cause and effect
• hence, difficult to communicate, highly complex

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APPROACH – TIME IMPACT ANALYSIS (TIA)

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 APPROACH – AS‐BUILT BUT FOR (ABBF)
• Retrospective method also known as Collapsed As‐built (CAB)
• Relies on a detailed reconstruction of the as‐built programme
• Normally restricted to after‐the‐event analyses in forensic work
• Does have a limited prospective capability (can be used to demonstrate the effect
of a delay on the completed part of an incomplete project)
• Has been proven to be reliable in dispute resolution/ claims
• If done properly, can demonstrate effect and cause/ takes account of
concurrence
STRENGTHS WEAKNESS
• greatest strength for forensic work is • complicated method hence, difficult to
that it is fact based (based on as built) execute and to explain
• not reliant upon an as‐planned
programme • difficult to establish a dynamic as‐built
schedule (as complicated to determine and
model logic)

• requires detailed as‐built/ progress

records
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 APPROACH – AS‐BUILT BUT FOR (ABBF)

• Identify Planned Period & As‐built

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APPROACH – AS‐BUILT BUT FOR (ABBF)

• Identify Delays

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APPROACH – AS‐BUILT BUT FOR (ABBF)

• ‘Zero’ delays

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APPROACH – AS‐BUILT BUT FOR (ABBF)
• Quantify Claim

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 FINDINGS – CHOOSING A METHODOLOGY
Which Method is appropriate, correct, sustainable?

Legal/Contractual
• What does the jurisdiction/ contract require? (e.g. Concurrency? Likely or Actual delay
to completion? Delay Analysis Method Specified?)

What information is available?

• Planned, progress, as‐built (Does a lack of information preclude the use of any of the
methods?)

Time and Money

• Do time/cost constraints eliminate certain options? ((During project/After Project,
Record keeping; Staff available (Engineering/Management),Decision making, Budget)

Other issues:
• Proportionality, Type of project, Which party, at what stage is the dispute?

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 FINDINGS – FACT IS KING

Key Facts:
• At least after an event delay becomes a fact and the Other Party/ the Courts are
interested in what actually happened rather than in what could have happened.

• For an event to affect the completion date it must fall on the critical path of the
project.

• must consider all relevant facts and evidence regardless of a positive or negative
impact in relation to the issues in question

• Delay Analysis should be based on a calculated approach it can not be impressionistic

• Are there facts/ evidence available and accessible to verify the cause

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Conclusions

• Delay Analysis comes in many guises all with their

advantages and disadvantages

• To chose the most suitable method depends on the

surrounding factors

• Facts and common sense are KING

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THANKS…

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