Q&A: COVID-19, EOT Claims, and Delay Analysis Methodologies

In this blog post, Steering Committee member, Lee Sporle, answers questions related to claims submissions during COVID-19. This blog has been extracted from our fourth Construction Clinic session, which took place in April of 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: Conducting the delay analysis, it was found that the programme updates contained out-of-sequence activities which resulted in incorrect dates. Should it be corrected and justified prior to the analysis, or can I simply reject the EOT submission? Answer: Firstly, what delay analysis method are you going to perform? If you’re performing a Window Analysis-based method, As-Planned As-Built, then it won’t matter because you aren’t looking at any forecasting or entitlement; you’re looking at actual delay. So, under an As-Planned As-Built Window Analysis, you’ll be reviewing in a window period of time: what was planned, what actually happened, and how much was the critical path affected in…

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Q&A: Delays, Notice, and Force Majeure

The following questions, related to contractual issues arising from COVID-19, were posed during our second Construction Clinic, held in April 2020. The entire webinar may be viewed on-demand on YouTube. Question 1 Question: Where is the coronavirus categorized under FIDIC Red Book with regard to the payment of costs? Answer: When it comes to payment of costs associated with the EoT, or any other costs associated with the coronavirus, the most appropriate place is Sub-Clause 19 (Force Majeure), but there are some qualifications and FIDIC aren’t really clear about epidemics here. Sub-Clause 19 (Definition of Force Majeure) states, “Force Majeure may include, but is not limited … of the kind listed” and the kinds that FIDIC refer to in the list are all man-made things such as hostilities, war, taking over of power, etc. etc. So, it doesn’t tick that box. Where it says it’s not limited to those things, does that mean there are other man-made things, or does that mean it could be anything…

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How To Deal With Delays By Nominated Subcontractors

Many years ago when I used to deal with the JCT forms of contract, if a nominated subcontractor delayed the works, the contractor could use this as a legitimate reason to claim an extension of time. Either things have either changed since then, or not all forms of contract take this view. Under the FIDIC Red Book form of contract, the Engineer may nominate a subcontractor, but once the Contractor has accepted the nomination, he becomes responsible for the actions of the subcontractor and may not claim for any failures of the subcontractor. In a situation where the Engineer nominates a subcontractor who has submitted a competitive price but is incapable of providing adequate performance (does this sound familiar at all?) it seems inequitable to make the Contractor responsible when he has had nothing to do with the selection of the subcontractor. Does the Contractor have any recourse in such a scenario? Well, sort of, as we will see. Sub-Clause 5.2 (Objection to Nomination) states that…

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Extension of Time Claims – Cause and Effect

If a claim is to succeed, it is vital that it contains a persuasive argument to demonstrate that the claimant is entitled to an award and the quantum of the award. In this paper, I am going to share with you some key elements that must be included to help a just extension of time claim to succeed and an award to be made in a timely manner. The elements discussed here are cause, effect and delay analysis: matters that are all essential to proving the case. Cause and Effect Often the best way to deal with the event itself is to present the details through a chronology. The chronology should describe what happened, when it happened and provide substantiation of the events by way of reference to the project records. The project records should, of course, be included in an appendix for verification and reference. We should also split the chronology into sections that deal with cause and effect so that it is very clear that we have these essential elements covered. The chronology will…

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Planning Progress Records | Best Practice

Most contracts will identify the creation of the Baseline (As-Planned) programme and the regular reporting periods. FIDIC contracts refers to the Baseline under Clause 14 or 8.3.  An essential project tool is a programme which allows the project team to understand where they are, where they are going and how to get there. However, the project tool is only as good as the effort used to create it, and the effort used to update it.  In recent years, my company has witnessed a deterioration in the planning skills on many projects resulting in errors in project updates, with project values ranging between USD 100 million to USD 1 billion. We noted that the common errors that occur between progress updates refer to progress percentages decreasing between updates, actual dates changing from ‘it started to hasn’t started’ to a ‘revelation that it started six months ago and we forget to record the actual start or record any progress in the six months.' Other changes are in durations, both…

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