Delay analysis records

Record keeping for contemporaneous delay analysis: a model for effective event management

Increasingly sophisticated computer software is being utilized to support detailed critical path method (CPM)analysis for resolving delay and disruption claims. The accurate determination of entitlement is however stilldependent on the quality of programme and progress information provided by all parties. A comparativeanalysis of record-keeping methods in the UK and the US reveals that there is less rigour to this practice in theUK, where parties are not required by the contract to provide such records. In most forms of US governmentconstruction contract the contractor is required to produce a schedule using CPM software and to regularlyupdate this to reflect project progress and changes. Recent recommended best practice in the UK also stipulatesthat the contractor should keep reliable and accurate progress and programme records to assistcontemporaneous assessment of the cause and effect of project changes. While not contractually imperative,a clear method of managing information is important in UK construction and engineering projects to facilitatemore effective and accurate assessments of delay and disruption. The US experience and good practiceapproaches in the UK demonstrate the importance of implementing and establishing an ‘event managementstrategy and archive’ at the outset of projects.

Indroduction

No matter what project controls are put in place,unfortunately delay and disruption especially on largeor complex projects are almost inevitable. AsMcCullough (1989) states, ‘The basis of most construction claims is a delay’.

What is a Delay and Why do they occur ?

Delay is the situation where the works take longer than originally intended. Delays can be approval delays, information delays or work undertaken later than originally planned. (Williams et al., 2003). The variable which is affected by the event is time-related. Disruption by contrast does not refer tothe timing of the works but to the situation where theworks are made more difficult by some act of hindranceor prevention by the employer.

Delay due to the Change of Design

Delays might be due to changes in the initial design,alterations to the specification and unforeseen circumstancessuch as unexpected ground conditions, poorweather or poor design which is only discovered duringconstruction. Other delays are frequently caused bysupply chain problems, for example suppliers not deliveringcomponents to site on time, or specialist manufacturershaving problems with their off-site productionprocesses. Delays and disruption can also be caused bypeople issues, for example individuals or organizations notresponding to requested information within an appropriatetime or individuals not agreeing on technical ormanagement issues for an unreasonable period of time.Change management principles have been developedto help manage delay as it happens and in so doingreduce the likelihood of disagreements regardingculpability for such delays and disruption.

Dispute as regards to Entension of Time (EOT)

Many projects still end up in dispute as regards to extension of time (EOT) claims and/or prolongation claims after the project has finished (when relationships can start to break down). This situation is unlikely to change in the future. In paragraph 9.4 of the Latham Report, Latham states that disputes may arise despite everyone’s best efforts to avoid them. Carnell (2000:89) adds: ‘It is a mistake to believe that the postLatham and Egan construction industries will be freefrom claims.’

Carnell (2000: 107) also states that disputes will arisenot least because there will be instances where a genuinedifference occurs, where the parties hold sincere butdiametrically opposed opinions: ‘One should not demonizeconstruction disputes. The key is to understand theplace in which disputes and the available mechanisms fortheir resolution occupy in the construction process.’Williams (2003) states that most good contractors willtry to avoid getting into claims situations where possible.Zack (1993) however suggests that ‘claimsmanship’often reduces transparency in the claims process and lists11 ‘claim games’ commonly played out by contractorson public projects.

The use of Delay analysis

The use of delay analysis is currently increasinglypopular with the courts in identifying culpability andascertaining damages. The increasing use of computersin recent years has enabled critical path programmes tobe analysed and, using a range of assessment methods,highly complex projects can in theory be analysed fordelays and disruption and very specific ‘answers’regarding the impact of delay events on the programmeare often provided to the courts.The problem is that delay claims involve detailedinvestigation of the project, often retrospectively,which requires a vast number of documents to bereviewed and people to be interviewed, which can bea time-consuming and resource-hungry process.Alkass et al. (1995) discuss the effort involved in thisand say that 70 per cent of the effort in a claim isspent on searching and organizing information.Effective delay analysis must consider all delayingevents and is dependent on the ‘facts’ of the case.Facts in this sense mean the project’s factual records,i.e. variations, correspondence, minutes of meetings,progress reports and so on. If this process is notmanaged effectively, claims can be at best very timeconsumingto assess in terms of validity and at worstdeceivingly inaccurate.Gibson (2003) states:Too often do we see extension of time and delay claimssubmissions containing several lever arch files of these factswith no specific linkage to the alleged events that caused thedelay. There may also be a bundle of computer printoutsindicating the claimed effects but the causal link is not clearlydefined. The referee is expected to find it and often it’s likelooking for a needle in a haystack!

The Importance of Keeping all Records

The records kept on construction projects will be themain source of information on which claims for time oradditional payments will be established by the contractoror assessed by the engineer or contract administrator.The importance of producing adequate delaydocumentation has been recognized for many years(Epling, 1984), and Jergeas and Hartman (1994)stipulate that good record-keeping is crucial in helpingto avoid or resolve claims.

There is a multitude of different types of records including correspondence, meeting minutes, delivery notes, progress records, site diaries, day work sheets, photographs and invoices(Scott, 1990). Updated programmes can also recordprogress. The purpose of keeping records is to enablethe assessment of progress, to confirm work has beencarried out and to record resource use and expenditurefor payment.

The quality and rigour with which records are keptvaries wildly between different organizations. Manyhave different procedures for keeping records and onmany jobs quality procedures for record-keeping arenot implemented effectively. Recent studies showthat producing ‘inadequate records’ is amongthe principal generic causes identified as leading todelays in substantiation/assessment of EOT claims(Kumaraswamy and Yogeswaran, 2003). Courts andboards of contract appeals stress the importance ofcontemporaneous records in proving delay andother claims and often the outcome of such caseshinges on such documentation (Bramble and Callahan,2000). However the production of information is oftenof insufficient quality to enable an effective investigationinto issues of delay and disruption to be undertakenin retrospect, as Major and Ranson (1980)observe:

It is all to common, when seeking to establish what actuallyhappened on a project, to find that even a considerableamount of investigation will produce only an incompletepicture. It will often be necessary to analyse minutes ofprogress meetings, valuations, diaries, and various chartsand programmes which neither individually nor collectivelyenable an actual progress chart to be produced or a detailedhistory of the project to be written. This is a commonand substantial area of failure in site and head officemanagement.

Delays and Disruption

Delays and disruption are therefore common, andalthough change management and delay analysis havebeen introduced to try and avoid and resolve delay anddisruption claims it is suggested that they will neverdisappear. The problem is that records are kept inmultiple forms inconsistently and in various locations,and because the analysis is normally retrospective andrequires the assessment of disparate documents, it isalways difficult to clearly show causation.1008 Carmichael and MurrayIn recent years in the UK the importance of keepingcontemporaneous records has become more widelyunderstood with the development of the ‘Delay andDisruption Protocol’ (Society of Construction Law,2002) by the UK’s Society of Construction Law, whichoffers guidance on change management issues associatedwith the assessment of project delay anddisruption

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