Assessing Delay and Disruption

Assessing Delay and Disruption - Tribunals Beware [P035]

Delay claims, linked to disruption and acceleration cost claims are common in the construction and engineering industries and are becoming more common in other projects. A key area of claim present in most contractual disputes involves assertions of delay with associated disruption and/or acceleration costs. This type of claim usually appears after normal contract processes are being severely tested and the contractor has engaged experts to assist its cause. This paper is designed to help ADR and legal professionals understand the options available to disputants in assessing ‘delay’ to help them quickly cut through the fog of expertise present in many major disputes to achieve a speedy determination. The paper :

Describes the origins, strengths and weaknesses of ‘Critical Path’ scheduling.
Outlines the current ‘state of play’ with regards to the practice of scheduling.
Describes the primary approaches to delay analysis, their strengths and weaknesses, including:

As-Built v As-Planned
Impacted As-Planned
Collapsed As-Built
Window Analysis and its variant, Time Impact Analysis

Describes the type of record needed to support the delay analysis
Suggests some questions a tribunal may choose to direct to various scheduling experts appearing before them to ascertain the robustness of the evidence being presented to help turn the mass of data typically accumulated in a ‘claim’ into information.
The complexities around concurrent and parallel delays are discussed on Mosaic's White Paper WP1064 Concurrent and Parallel Delays

Whilst the arena belongs to the parties, a knowledgeable tribunal can help achieve a quicker, more just, and importantly enforceable outcome. Adjudicator’s determinations have been successfully challenged in the UK based on the failure of the Adjudicator to allow parties to comment on the methodology used to determine the delay.

Delay, Disruption and Acceleration Costs

Unfortunately, most prolongation / disruption claims also seem to result in excessively large cost claims that damage any possibility of negotiating a reasonable settlement. This separate paper examines the theoretical underpinnings of ‘delay and disruption’ costs to suggest a realistic basis for their calculation. It is designed to help non-experts see through the ‘smoke and mirrors’ of schedule claims to understand what’s likely to be real, what’s feasible and what’s hyperbole.

Author: Patrick Weaver

-		Assessing Delay and Disruption - Tribunals Beware
-		Delay, Disruption and Acceleration Costs
-	More Contract Law papers Mosaic's Scheduling Home Page