Facing an ‘Extension of Time’ Claim
6th May 2020
There are numerous discussions ongoing as to whether the Covid-19 pandemic will trigger a Force Majeure clause and give remedy to contractors who are being delayed by the numerous impacts currently being felt across the world. What should you be doing to prepare?
For all of us, this should serve as a reminder to ensure that programmes are fit for purpose. Whilst programmes are of course a tool for planning works and monitoring progress, it should never be forgotten that they represent the foundation of making, or defending, Extension of Time claims.
The NEC, JCT and other contracts stipulate what must be shown in a programme from a contractual perspective, including start dates, access dates, completion and sectional completion dates. However in order to successfully make or defend a claim for an Extension of Time, the programme needs to be of robust quality and integrity to stand up to the inevitable scrutiny of the other side. As well as being contractually compliant, this means the work needs to be detailed to a sufficient level, sequenced correctly and fully logically linked in order to be able to demonstrate the real impact of an event on the programme.
Assuming we have a suitable programme, and have issued the appropriate notices as per the contract, there are various methods available to us to demonstrate the delay to completion, all of which have their pros and cons. The method selected depends to some degree on the complexity of the situation, the time and cost allocated to resolve the issue, and the information available to the Delay Analyst.The last point is often overlooked; simply adding an activity into a programme to try and demonstrate a delay is simply not adequate, it needs substantiation too. Some of the techniques require detailed as-built information and to help unravel what has happened, a large amount of information is required, including site diaries, photographs, client instruction, change order, meeting minutes and so on.
Within this context a timely review of your programmes and their health and suitability for purpose is recommended. Whether you are considering making or defending Extension of Time claims there will be considerable quantities of data to collate and analyse. Like all good boy scouts, be prepared.
About the author
Simon Martin is an Associate Director with K2 Consultancy, heading up the Technical Services Team. He has over 15 years’ experience of planning all phases of large and technically challenging projects across numerous industry sectors, including aviation, defence, engineering and mining.
Simon is experienced in Schedule Risk Analysis, Earned Value Management and Delay Analysis.