By Dr. Chandana Jayalath

Delays are inherent in construction. If they can not be avoided, then they ought to be either mitigated or absorbed within the contract. A Contractor may be delayed by the effects of a change in the work or an event that was simply beyond his control, then the entity responsible for overseeing the contract, that is Employer, may be obligated to adjust the contract. All depends on the circumstances where the contract forbids or provides for.

Additional works are often a source of time extension provided there is no float to absorb within the existing program. Float is a buffer time allowed in the program as envisaged by the Contractor at the time of tender but whoever the first uses it in a delay may get the benefit of available float. This means the remaining float belongs to the project, as a principle. Omitted works on the other hand is not a cause to reverse the time for completion, unless the parties mutually agree. However, the effect on omitted works, if they are substantial, will and should alone have a minus effect on the contract completion.

Baseline – an always flooded road

A Contractor proceeds into work with an approved program, as usually called the clause 14 program (as it is tied with traditional clause 14 in many standard forms). The correct term is Baseline program which shows how the Contractor intends to execute the said works in terms of start and duration of each activity and their relationship (logic), together with any technical or legal constraints in the site process or the user imposed restraints such as a partial taking over date or a milestone completion.

With all, the Contractor has the liberty to organize himself in resource allocations, site operations, material procurements etc, etc as long as he can safely accomplish the scheduled completion or any other milestone completions. It is the Contractor’s prerogative to decide on the durations, logic, etc as long as they are not fundamentally erroneous from strict planning point of view. A minor error in calculations and unrealistic assignments here and there would not be minded by the Engineer in the approval. In fact, the Engineer’s approval does not relieve the Contractor’s obligation to maintain a reasonable rate of progress. Approval of a Baseline program is therefore a bird’s view appreciation but it should not mean to prevent the Contractor either in contractual commencement or completion, once the parties have entered into the contract. Ultimately, the ‘baby’ is Contractor’s.

Many argue that baseline program must receive the recognition similar to a contract document. Whether it theoretically forms part of the contract is a question of rather academic than practical. Only the major constituents must be binding the parties. These essentially include commencement date, completion date, and milestones if any and not exactly the duration, logic or sequence. This is because any program is a project management tool belonging not only to the Contractor but also the Employer in a living dynamic site environment. Simply, it is everyone’s program subject to hundreds of changes a day. Parties have to adjust the program because they can not adjust the eventualities. Making a program a contractual tool rather than a technical tool will definitely restrict everyone in a chaos, by very nature of construction. Program belongs to the project, therefore.

Programs – at all times to revise

It is a contractual obligation for the Contractor to submit revised programs as and when required. However, submission of monthly updates to reflect the actual progress against the planned progress is mandatory by contract and customary by practice. Maintaining a set of timely, accepted, schedule updates is very important to the delay analysis just because out of sight out of mind. The Engineer in all cases evaluates these updates and authenticates the accuracy of events and their impacts in his approval process. The question is what is to approve? It is the factual infrastructure the Engineer has to look into. The program should reflect the full scope of the work. For a trouble free analysis, the activities should be small in scope with relatively short durations, clearly reflecting their logical relationships between activities and groups of activities. There should be a continuous critical path without gaps from the first activity to the last activity. All activities except the first and last, should have predecessors and successors. Internal schedule constraints should be logically driven, not fixed in time.

The term Baseline goes away with these updates that provide the basis of comparison in a delay analysis. Of course, a delay in site possession may well be compared against the available Baseline program and the possible result is the shift of the entire schedule as a bunch in one-go making a new scheduled completion date right at the beginning.

In larger projects with more activities and more changes during performance, a single update is completely inappropriate. This is a case of a typical road project where a hundred of activities running in parallel, over a period of several years, with around hundred varied works. There could also be cases for instance in a concourse building project in an airport having five thousand varied works, under forty nominated sub Contractors, over a period of five years. There are, however, instances in which a single baseline may be appropriate such as if the project is of relatively short duration with relatively few activities. If accurate data is available, as-planned vs as-built method is fair enough on a monthly basis. This is sometimes been called a ‘windows’ approach, where the fragnets in software play no role.

Time to market and rights to reserve

The popular SCL protocol recommends that the time adjustment be made quickly, using a method appropriate to the actual delay scenario. The whole idea behind this recommendation would be to avoid blurring the true history as the time lapses. Also, a delay in approval of a time impact analysis (TIA) may result in a supplemental claim by the Contractor of constructive acceleration. At some point, delay in preparation and/or approval of a TIA so diminishes the value of the analysis that calls for a more detail, yet difficult, forensic analysis. This is why the conditions of contract require the Contractor to submit together with the interim payment application, or what is aptly called the monthly statement, detail particulars of claims, as he deems eligible for additional time and/or cost. These details once submitted after authenticated by the Engineer at site level turn out to be valid materials for a legitimate claim, as they become contemporary in nature. However, the Contractor must have preserved his rights to lodge claims such as notice requirements when they are condition precedent. Contractors lose their rights when conditions precedent requirements are not mistakenly or otherwise abided by.

Claims that are submitted with the chronology of events will help understand the prevalence but claims are always one sided. Therefore, any claim that are storey type alleging that the Employer is responsible without backups in support may in no doubt be subject to upfront denial. Also, a review of a time extension claim without allegations on records on the other party is so insensible in that the net resultant delay is a gross exaggeration that never reflects time extension ‘due under the contract’.

Contractors sometimes lodge their claims on interim basis. It is the Contractor’s choice as they deem strategic. Conditions of contract do not restrict the Contractor to lodge any number of claims at any time. In fact, there may be many claims on the same subject since the effects are continuing. Once effects cease, a final claim would follow. However, the practice of ‘splitting the baby’ into many claims applicable within the same period of concern is confusing simply because the effects once evaluated and established can not be reversed in the contract to take account of another delay event on the same period.

Why time impact analysis?

Contracts require the injured party to petition, in form of a claim, for a time extension, if they have been delayed by the actions or inactions of the other party. To this goal, many contracts specify that a time impact analysis (TIA) be prepared and submitted to objectively substantiate the request for a time extension. Once the duration of time has been agreed upon then the added time-related costs of such a delay are ascertained.  Prolongation cost means a replacement value paid back to the losing party by bringing him into the original position financially had there been no delay occurred. Cost is not necessarily a function of time. Hence a prolongation cost claim should reflect what actually sustained monetarily due to delay in question, instead of time extension. No party should unjustly enrich in the pursuit of prolongation costs.

TIA can be both prospective and retrospective. It is prospective when parties look forward to establish a future date as the new date for completion. It is a time forecast designed to facilitate a timely contract adjustment prior to the actual work being completely preformed. It is retrospective whenever historical delay events have been accumulated and inextricably intertwined so that parties have no choice but to assess it with the available means to establish a date in either past or future tense.

In both cases, the purpose is to avoid time becoming at large. If time extension is not granted, as many would agree, and of course well settled and confirmed in case law, the Contractor’s liability of completion extends to a reasonable period of time. Time extension secures therefore the Employer’s right to impose liquidated damages or penalty, as the case may be.

Modelling of the effects

TIA is typically associated with the modelling of the delay effects. It uses Critical Path Method (CPM) schedule that is able to show the difference between a schedule that does not include a delay and one that does include an activity modelling the delay event. The variance in project completion, between the non-impacted schedule and that of the schedule with the impact, is considered to be the impact of the delay for time duration considerations.

Planners prepare a schedule fragnet in the pursuit of this variance. A flagnet consists of a subset of the activities in the project schedule that will be involved directly with the delay. For easy review, the delay is termed as simply as possible by using the fewest number of activities and relationships in order to substantially reflect the impact of the delay to the schedule. However, care should be taken to correctly define the change or impact and the logical insertion into the fragnet. Existing activities and logic should be left intact whenever possible except to incorporate the fragnet. Added relationships may cause some of the existing relationships redundant to the CPM calculation, but relationships should only be deleted when the retention of that relationship negates the actual work restraints on the project. Redundant relationships caused by the additional inserted logic should be left in the schedule wherever possible and should not affect the overall result. It is acceptable to add a delay as a successor to an activity when in fact, that delay occurred during the activity and delayed its completion. It is also acceptable to split the existing delayed activity into two activities, with one representing the portion of the planned work to be performed before the delay, and the other portion of the planned work after the delay, as long as the combined durations of the split activities equals the original duration of that activity. This is where the art of planning comes into play even by a Contractor to internally evaluate his alternatives to regain or improve project completion in his own delays.

Just prior to actual delay

There are conditions under which a time impact analysis operates. It is the most recently accepted schedule update, just prior to the actual delay, correctly portrays the project status. TIA assumes that the Contractor’s and Employer’s responses to that delay are independent of the rest of the project. In effect, a TIA assumes that the CPM schedule at the time of the delay is ‘frozen’ and will not change anything other than the change brought about by the delay.

As stated, the baseline schedule should be used if the delay began prior to the first schedule update. If the time interval between the start of the delay and the last accepted schedule update is too great, the Contractor must elect to first provide a new schedule status and update with a status date immediately prior to the start of the delay. This pilot task is imperative before assigning any delay element.

An automated TIA is only valid if the CPM software, being used to model the effects of a delay event, properly shows the effects of the CPM calculations. This includes the consideration of a status date, out-of-sequence progress, and actual activity status. The schedule should not allow any unstarted activity to be scheduled prior to the status date. Also, it should not allow for a prediction of early completion for an unfinished activity prior to the status date. Works actually performed on activities that are not logically able to begin can be revisited as long as they have no actual starts or actual finishes later than the status date. Once updated, an accepted CPM schedule, with a status date immediately just prior to the delaying event, must be developed that has no reference to the delay in question.

Fragnet business

A fragnet is a fragment of a CPM logic diagram, having many characteristics. It contains one or more activities or events with a positive duration. Those activities are logically connected to each other; and the fragnet as a whole is logically connected into the project schedule by creating a logic tie to a predecessor activity and a successor activity.

Using the accepted fragnet as a template, the planner can add the impacted activities and their logic. Planner should make the accepted activity adjustments to the existing activities as necessary to mirror the fragnet and set the duration of the delay activities to zero and recalculate the CPM. At this point in the analysis, all computed and actual dates in the original schedule update should match that from the original schedule update. If all dates do not match, then the fragnet insertion must be corrected until they do match.

In order to ensure TIA accuracy, it is important to often develop fragnets for every change order proposal on the project. Such a policy assures in advance the likely time implications on the remainder of the project. Since many Contractors have a policy to develop change order proposals for every conceivable event not clearly within the contract scope, there can be, and often are, hundreds of fragnets. Further, these fragnets can, in and of themselves, be relatively complicated since they will mimic the changes in scope. However, it should be noted that most of these variations all along a typical construction project will have no impact on the completion of the project. This is why there should be a guard against strategic manipulations over the fragnets in terms of inclusions, exclusions, illogical connections and unrealistic durations.

Of these, the most fundamental decision an analyst makes is the decision to include or exclude a fragnet. For example, a planner for an Employer could choose not to include one or more fragnets under a theory that his expertise concluded it could not possibly have had an impact. Alternatively, a planner working on behalf of a Contractor could include every event conceivable fragnet to mimic the events. He might even divide a single event into multiple fragnets, possibly magnifying its effect. In either case, the planner controls the outcome through his preconceived decisions. Another possibility is the number and type of logic connections the analyst employs. For example, if an Employer were to decide to install a different air condition split unit after the original one had been installed, what is the planner’s approach to develop the fragnet whether is it actually happened or should have happened?

Using the original schedule update, planner can determine when the successor activity to the delay impact actually became a project critical activity. On schedules without negative float, the activity will be predicted to become project critical on the computed late start date. The first date of delay due to this impact will be the next day after the activity late start date. For original update schedules that do show negative float, the start or delay date will simply be the first day of the delay event. Every day after this start of delay will be labelled a counting down delay day until the number of delay days is exhausted. The above course of action assumes that project float belongs to the party who uses it first. It also assumes that the project does not meet all legal requirements for a declared early project completion.

Quantifying mitigation

Contracts require that the Contractor mitigates effects of any delay to the extent practicable. If the delay time period involved is long, or if substantial mitigation of the delay has occurred, then the effect of such mitigation matters. This is imperative if mitigation efforts by either the Employer or Contractor have modified the actual impact of a delay on project completion. There must be a correlation between calculated and actual for a proposed TIA to be acceptable.

However a planner may ignore quantifying mitigation in a frozen work plan, forward-looking impact analysis, and negligible duration of the delay. In lieu of actually redesigning the logic, that was in effect when the delay occurred, to that which was actually used after the delay occurred, the Contractor may elect to revise the remaining duration status of every activity in the schedule to the remaining duration status evidenced at the time of the actual end of the delay. This revision of the status to the impacted schedule will reflect the resultant effects of mitigation of the project. Activities performed out-of-sequence will still exist as successors to the impacted activity, but their remaining durations will be reduced to reflect the work performed during the delay period.

Concurrency – the sword and shield

There is no single definition of the term ‘concurrent delay’. Some consider this to be any day that the Contractor did not work during the delay period. Others consider it to be any identifiable delay to any activity with negative float. Still others consider this to be any delay to an activity that had the same or lower total float as the TIA delay. Parties should not hang around till a legal consensus comes in; instead they must attempt to set their limitations using common sense. Concurrent delays are not the delay events but impacts that fell on activities along the critical path. To consider an impact to be concurrent, the impact of which delay events where some of them are held liable by the Contractor and others by the Employer, must fall within the same period. To be more precise, only the overlapping period of impacts will be considered as concurrent, irrespective of their start and end. Also, these delay events once taken independently must critically affect the scheduled completion. This interpretation seems more logical than any other.

Many contracts require a TIA to include an analysis of concurrent delays because they consider concurrent delay days as excusable but non-compensable. This is a give and take policy that shares pains and gains. TIA findings help identifying the concurrent elements so that the prolongation cost can be treated accordingly. Since concurrent impacts are known to be non compensable, it is difficult to expect those elements in the Contractor’s submission. A prudent planner on the Employer’s side must take them account for an equitable time analysis.

In nutshell, TIA models actual performance using computer-generated schedules developed during the currency of the project at periodic intervals, adding specific activities (fragnets) that model delay impacts occurring during that interval. The result of the addition of these activities may change the completion date for the project as well as the critical path. This new impacted schedule is then updated with actual progress for the next period and the process is repeated. The goal of this methodology is to model the actual events on the project as accurately as possible and through that modelling, identify on a periodic basis the critical path, the delay or acceleration on a periodic basis, concurrency and the party responsible for delay. It results in both eligibility and quantum.

Prolongation – a costly roulette

Claim on prolongation costs may not necessarily come together with the claim for time extension. Once an extension of time has been granted, the evaluation of the additional prolongation costs is often related to the period between the contract completion date and the extended completion date. Prolongation cost is also calculated on time related preliminaries. This line of thinking is illogical.

The intention of most construction contracts is for the Contractor to be reimbursed the additional cost which results from Employer delays. It involves a comparison between the actual costs incurred and what the cost would have been had no delay occurred. Where, for example, time is lost awaiting details which causes a two weeks delay to the critical path, evaluating the prolongation costs associated with the extra two weeks on site, following the revised contract completion date, may not produce the correct answer. A more accurate evaluation would be achieved by reference to the costs incurred during the two weeks when the information was late in arriving. It is wholly a question of cause and effect.

The SCL protocol, with regard to this matter, states that ‘the recoverable prolongation compensation is to be assessed by reference to the period in which the effect of the Employer Event Risk was felt.’ It is clearly intended that, once it is established that additional payment is due for prolongation resulting from Employer delays, the evaluation should relate to the period when the effect of the delay occurs and not to the overrun period at the end of the contract.

The period to be priced for the delay has been contested in Courts. Should it be the period when the delay actually occurred or the extended period at the end of the Contract? It is a question of “Cause and Effect”. There is little doubt that what must be priced is the effect of the delay, and it boils down to a clear and careful analysis of the effects of the delay to ascertain the additional overhead resources which are incurred. Perhaps, one would argue that it is only if, and when, the project as a whole is extended or prolonged beyond its programmed completion period as a result of the delay to the progress of the structure that the Contractor would be involved in the extra employment of resources over and above that allowed in the contract price. Of course, certain resources could have been extended within the original contract period as a result of variations and those extended resources should, of course, be reimbursed to the Contractor.

If the party (A) suffers a loss which he is entitled to compensation from the party (B) causing the ‘injury’ (for example a delay), the damages are to put (A) back into the position he was nominally in before the event. Hence, prolongation costs shall be the costs that actually incurred at the period the delay events impacted on the progress, instead of the period of extension. What must be priced is the effect of the delay, and it boils down to a clear analysis of the effects of the delay to ascertain the additional overhead resources which are incurred. It is only if, and when, the project as a whole is extended or prolonged beyond its programmed completion period as a result of the delay to the progress of works that the Contractor would be involved in the extra employment of resources over and above that allowed in the Contract Price. However, that certain resources could also be extended within the original contract period as a result of variations and those extended resources should, of course, be reimbursed to the Contractor.

Extended preliminaries – the prorata

Traditionally, prolongation costs had been priced by reference to preliminaries. The elements of fixed costs are usually only incurred once and not affected by a delay to the project; that element ought not to be claimed. The time related costs will, unless there is a full suspension of the site for instance, continue through any period of delay and can be claimed ‘at cost’. ‘Cost’ will be calculated in accordance with the terms of the contract. However as safe bet initially is to adopt the time related charge levels in the originally accepted bid, which is simple in approach that any one would prefer to adopt. However, during the 1980s this traditional basis fell into doubt, and that following various cases, standard forms of contract started to insist on the actual loss and expense incurred as a consequence of the Employer’s delay, may be because of the concerns as follows;

•           Rates quoted for preliminary items could be time, method or activity related or even in doubt as to what category a particular preliminary item would belong to, such as grouting as the tunnelling proceeds or dewatering in off shore cofferdam or wet blanketing in a dam defect whenever priced under preliminaries.

•           They are forecasted values quoted in competition. They are values that the Contractor thought might happen rather than actually happened.

•           They may have subjected to any pricing strategies such as front end loading, back end loading, or that gives maximum return at completion.

•           Rates quoted for preliminary items, similar to other unit rates, contain a profit element. Actual costs should exclude profit. A party should not profit from another’s loss out of eventualities beyond control of either party, say in a prolongation due to adverse inclement weather. This is in line with the principle of good faith and fair dealing.

•           The philosophy behind the compensation is to find the replacement value in order to bring back the Contractor into the original position where he stood financially had there be no delay.

•           The impact due to prolongation may also depend on the site involvement. For instance, the actual costs on preliminaries at the beginning and end of the progress along with the S-curve may be not as big as in the peak. The amount of additional burden taken over by a prudent Contractor varies with the period as-impacted.

•           A contract may well have many hundreds of variations, and many dozens of these could be critical and contributing to the delay.  Pro rated preliminaries may duplicate the amounts for variations individually priced under variation clause.  If a variation causes standing time (say in shotcreting in rock stabilization), then the Contractor may successfully recover the costs of that standing time as a variation even if it could be shown that the Contractor had no alternative work in any event and would suffer no loss from his idle resources.

•           Concurrent delays are excusable but not compensable, as a principle.

•           In contracts of civil Engineering nature such as mass excavation in a borrow pit, dredging work or in demolition, more than 90% of the cost would be on plant utilization, priced in a unit rate, say in a rate per m3, apart from preliminary items. Payment on time related basis would be wholly inapplicable when such a contract is prolonged.

•           Time extension due to suspension of whole of the works or delay in site possession (that pushes ahead the planned program as a bunch) may not necessarily cost the preliminaries in full. It may sometimes cost more than what is catered for in the preliminaries.

•           As there is usually a short ad-hoc preliminaries bill, the use of the prelims bill for pricing prolongation is not complete in a sense. For instance, the items under preliminary bill are set out in line with the conditions of contract and specifications (as guided for instance in the Principles of Measurement International 1979). Some items are neither measurable nor priceable.

•           Tender price break up is usually subservient to the contract once obtained after the contract has been let and any particular inclusion or exclusion does not bind the parties in a prolongation issue.

•           The intricacy of the issues when they are inextricably intertwined has made more difficult in using preliminaries as the basis of prolongation costs.

Overheads may be recovered in both payment for variations and in the pricing of prolongation costs. This is premised on the basis that the overheads in the BQ rate should not be adjusted where the variation may cause a critical delay when it would not be adjusted if the variation has not caused delay. To deduct this allowance in the BQ rate because the Contractor has incurred a delay would place the Contractor in a worse position than it would have been absent any delay. Usually, the overheads in the BQ rates which are used to price variations are not adjusted. However, it is the loss and expense which is adjusted, not the BQ rate. Not to do so would mean that the Contractor would be paid twice for some element of his additional overheads.

Hence, it is important to look at the entire scenario from a broad perspective. Since preliminaries are not ‘expenditure properly incurred or to be incurred’, the actual expenditure needs to be determined. This would eventually include time-related preliminary items, (for instance, the costs to be incurred in keeping the performance bond and insurance on extra premium) shall also be payable to the Contractor.

What a loss!

Also, the term ‘actual loss’ is more sensible than the term ‘actual cost’ for clarity. The Contractor should be entitled only for the actual loss and not the actual cost (in other words, the difference between the actual cost incurred in delay and the cost that would have incurred under normal circumstances as planned for which the contract rates are inclusive of basic cost, overhead and profit). The sum so arrived will eventually cover up any escalated component in prices of materials and labour and any loss of productivity. This will avoid possible over-compensation. All the cost items shall only be defensible with site records and other documentary evidence. The extent of entitlement and then the quantum has to be decided on the foregoing principles.

In nutshell, it is eligibility that follows quantum. The use of preliminaries on pro rata basis would not truly result the actual loss in prolongation. The level of compensation is what is reasonable in the circumstances. Each case shall be evaluated on its own merit. If the cost difference can be seen as being not too remote from the original event it may be recoverable. The industry has accepted that the correct means of evaluating prolongation costs is by reference to actual expenditure, justifiable upon contemporary records.

Unless otherwise the parties have taken on board by contract the risk of pro-rata application of time related preliminaries, any method that is capable of finding the actual loss is admissible and the answer is ‘it depends on the issues’ where the expertise of the quantity surveyor triumphs.  Seldom does one size fit all.

It is in the interest of the Contractor to present his most favourable claim on his own basis. Therefore in the first instance, an entitlement within the contract should be shown, stated and proved. The practical problems that beset the Contractor are that the potential loss and expense situations must be identified, established, quantified and valued. Furthermore, it should be in a form which must convince the other party to accept the claim as valid and that the integral parts are claimable and are correctly valued. But surprisingly, there are cases where the Engineer himself intervenes in claims submission on behalf of the Contractor, or keeping the Contractor’s submission aside. This is not only a gross misunderstanding but a serious breach of ethics on the part of the Engineer to assume that he has the power to make his own assessment when the Contractor delays in submission or disagrees with the Engineer’s opinion.

The recoverability of compensation for prolongation depends on the terms of the contract and the event of delay that caused prolongation, depending on whether the event is at the risk of the Contractor or Employer.  A Contractor must demonstrate that it has suffered loss and/or expense before it becomes entitled to compensation unless the contract states otherwise. An agreed contractual amount per day for prolongation costs can reduce arguments over the proof of such loss which is a form of reverse liquidated damages.

Effect of variations

The SCL Protocol suggests that if a Contractor has made no or inadequate allowance for site overheads in its tender, it is not necessarily disentitled to compensation for prolongation and or disruption on the basis of recovery of actual costs incurred.  For compensation based on actual loss and or expense, the tender allowances will not be relevant.  However, the tender allowances may be a useful reference point for the valuation of prolongation and disruption caused by a variation, and could be used by the parties as a rough guide for the agreement of such costs to assess the value of varied work if that is what the parties wish to do.

Where delay was caused by variation orders, these variations were almost always priced at BQ rates without any allowance for prolongation costs. The reference to “direct loss and / or expense” in the standard phrase was thought to include prolongation costs. In building contracts, preliminaries have been set out fully in the opening section of the BQ, and that traditionally, prolongation costs had been priced by reference to these preliminaries. This obviously gave the result that the valuation of prolongation costs could be either high or low depending on the pricing of the preliminaries by the Contractor.

A contract may well have many hundreds of variations, and many dozens of these could be critical and contributing to the delay. A further large number could be causing concurrent delay. To assess prolongation costs by individually pricing each variation which causes critical delay is, for many contracts, simply not practical. Also, in a short preliminaries bill, this is not conducive at all.  All these have prompted a move away from the traditional approach towards an actual cost basis for prolongation costs. When this traditional basis fell into doubt, industry has accepted that the correct means of evaluating prolongation costs is by reference to actual expenditure, but it depends on the precise terms of the particular contract.

For instance, overheads in the bill rate should not be adjusted where the variation may cause a critical delay when it would not be adjusted if the variation has not caused delay. To deduct this allowance in the bill rate because the Contractor has incurred a delay would place the Engineer in a difficult position than it would have been absent any delay.

However, the Employer cannot profit from liquidated damages during a period of the Contractor’s culpable delay if the Employer has also prevented completion. Similarly, the Contractor cannot recover damages in respect of an extension of time if he is in a concurrently impacted period. The argument is that even in the event of a concurrent delay for which the Contractor is responsible, if the Contractor is delayed during that period by a variation then the Contractor should be paid for that prolongation necessitated by the variation.

It is normal to assess prolongation at Cost, but to extend the detailed preliminaries rates provided in the BQ may cause injustice for the Contractors who can establish his actual costs on contemporary records.

What matters then?

What matters are basically the records and the planner’s approach? Records of the Contractor alone will not help at all. Planners approach without Quantity Surveyor’s input also will not lend a hand. TIA is a combined exercise. Quantity Surveyor is to guide the planner in picking up delay events eligible under the contract and the planner is to guide the Quantity Surveyor in picking up the concurrent elements and so on. A checklist approach will help make sure every important aspect has been taken into account. A checklist neither takes precedence over contracts nor frames out the planning or surveying expertise but promotes good practice in absence of a protocol in some organizations to deal with claims that involve time and cost.

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