In February of this year, the Society of Construction Law (“SOCL”) published the 2nd Edition of the Delay and Disruption Protocol (“the Protocol”) – the first update to the Protocol since the release of the first edition in 2002. The Protocol is prepared for the UK market, but has found application around the world, including in Australia.
The Protocol has over time formed an important reference point for delay practitioners – it is often used as a basis for selecting an appropriate delay analysis method, or as an objective reference to demonstrate the efficacy and appropriateness of the selected delay analysis method. It has also provided useful guidance for contract drafters around programming and delay concepts.
With the release of the 2nd Edition of the Protocol, it is worthwhile reflecting on some of the key matters within the Protocol (as updated in the 2nd Edition) as well as new concepts which have made their way into the 2nd Edition. This article summarises the changes which, in our view, are the key changes in the 2nd Edition of the Protocol – changes to delay analysis methodology and recommendations for record keeping.
The 2nd Edition of the Protocol outlines 6 types of delay analysis methods:
The Protocol also recognises there are several other less common methods (such as line-of-balance and time chainage analysis) that may be used to assess delay, dependant on the circumstances.
Contemporaneous Assessment of Time Impact of Delay
It is a core principle of the 2nd Edition of the Protocol that wherever possible, the parties should avoid a ‘wait and see’ approach to assessing the time impact of delays. Delays should be dealt with contemporaneously by both parties.
The ‘Time Impact Analysis’ is the preferred method of the Protocol for the contemporaneous assessment of the time impact of delays.
The Time Impact Analysis is undertaken broadly as follows:
- The Accepted Program (a baseline program accepted by the parties) should be fully brought up to date immediately before (or as close as possible before) the delay event (the “Updated Program”). This includes incorporating appropriate changes in logic and status information in the program;
- Any corrections necessary for patently incorrect logic, constraints or durations (including program calendars) should be made to the Accepted Program; and
- A sub-network of the delay event must be developed. For a variation, that subnetwork would include the instruction for the variation, and the various activities required to perform the variation (inclusive of the logic relationships between those activities). This sub-network should then be appropriately linked to the existing activities in the Accepted Program.
The Time Impact Analysis establishes the movement in the Completion date before the delay occurred (as updated for progress), and after its impact is added to the Accepted Program (as amended above). The difference in the Completion dates is the impact of the delay.
Delay Analysis Time Distant from the Event
The 1st Edition of the Protocol advocated for the use of Time Impact Analysis in assessing delay time distant from the event. However, the 2nd Edition of the Protocol no longer expresses that preference. Instead, the Protocol advocates that the parties use an appropriate method which produces a ‘common sense’ result.
Factors to be taken into consideration when selecting the appropriate method of delay analysis include the conditions of the contract, the nature of the cause of the delay, the value of the project or dispute (as some methods are more expensive than others to prepare), the time available for the analysis, the quality of programs and records available, and the forum of the dispute.
Summary of Methods
Table 11.5 of the SOCL provides a summary of the methods described.
The 2nd Edition of the Protocol contains a useful summary table of the methods – in respect of each method, the Protocol outlines whether the method determines:
- the critical path on a prospective, contemporaneous or retrospective basis, and
- the impact of the delay on a prospective or retrospective basis.
This summary table is a useful starting point for assessing the appropriate delay analysis method, based on the requirements of the EOT clause of a contract – for example, whether a clause requires the delay to be established by reference to the critical path on the ‘then-current’ construction program, and whether the contract basis an EOT entitlement on whether a claimant ‘is or will be’ delayed, or ‘has been’ delayed.
The 2nd Edition of the Protocol significantly expands its guidance on record keeping.
The Protocol indicates that the parties should endeavour to agree on, inter alia, the type, format, frequency and distribution of project records.
“Records relating to progress, delay and disruption should be generated contemporaneously, not after the event.”
The Protocol further suggests that a project Owner should consider maintaining its own set of records.
The types of records the Protocol recommends be kept include:
- Programs (including updated programs, revised programs, acceleration / mitigation programs and short range programs),
- Progress records (containing as-built data),
- Resource records (including records of management, labour, plant, equipment, materials and subcontract resources, and the output or productivity of those resource units), and
- Costs records.
- The Protocol continues to maintain its clear preference that delays be dealt with contemporaneously by way of a Time Impact Analysis. This serves as a useful reminder to parties of the importance of dealing with delays at the time they occur. It should also serve as a reminder to contract drafters to prepare EOT and programming clauses which facilitate (for both those tasked with making the claims and those assessing them) the contemporaneous assessment of delays.
- Additionally, the renewed focus of the 2nd Edition of the Protocol on record keeping is a reminder that maintaining, storing and (where appropriate) agreeing procedures for transferring records to other parties (including programs) is a cornerstone of managing progress and avoiding disputes in respect of delay.
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