The following questions were answered by Steering Committee member, Lee Sporle during Construction Clinic 8, recorded on 19 May 2020. The entire webinar may be viewed on-demand on YouTube.

Question 1

Question: If a delay is justified, at what time is it justified? Is it at the end of the original completion period or at the occurrence of the delay?

Answer: By justified, I assume you mean it’s actually approved, accepted, and is valid. So, at what time is it justified? Well, the delay occurs when it occurs. So that’s the delay, period.

If it’s critical, then the effect of that will delay your project completion. If it’s non-critical, it will be a delay just in that area. In that case, there won’t be a delay to a project’s completion.

So, at what time is it justified? It’s at the time the event occurs, but that could lead to a delay in your project completion. The question’s a little bit vague, but the delay is when it occurs and you analyse when the delay occurred and any costs associated will be at that time.

Question 2

Question: If the rate of progress is slow and the Contractor cannot complete on time as per Sub-clause 8.6 (Rate of Progress), a recovery program shall be submitted. The SCL states it is a Contractor’s obligation to mitigate delays. If the Contractor demonstrates that even after the mitigation, adopting techniques like fast-tracking and parallel sequencing, it is not possible to complete on time, what programmes should be submitted? Should it be an EOT submission?

Answer: So, progress is slow, 8.6 recovery, and you still can’t make time for completion. So it can’t then be a true recovery programme under the contract, because you can’t meet time for completion if it’s defined in the contract. So, it would be a best-effort programme.

However, the rate of slow progress could be due to 100% the Contractor’s delays, 100% the Employer’s delays, or it could be a mixture of Contractor and Employer delays.

If it’s the Contractor delay, then yes, best-effort programme, mitigation, acceleration, that’s the best you’re going to do. You’re going to be liable for any damages, or penalties that could be applied, if it is purely 100% the Contractor’s issue.

If it’s the Employer’s issue, then my recommendation would be to try and do an 8.6, recovery programme to show that you’ve tried to mitigate some of the delays. Then, for the remainder, put an Extension of Time claim in. You have more chances of getting that through and winning it quite quickly, because you’ve shown that you’ve tried to mitigate. However, most of the time, the Contractor would just go for the entire period under an EoT claim.

If it’s a mixture, I would do the same thing. I would try to mitigate as best I can, put an EoT claim in, and for the part that cannot be mitigated, then that’s going to be down to the Contractor. So you would suffer a delay.

(An) 8.6 doesn’t work if you can’t meet time for completion, if that’s what your contract states that the 8.3 programme is for. It has to meet time for completion. If you can’t if you’ve gone so far down the road on the project and it’s impossible to achieve the end date then an 8.6 won’t be a recovery unless there’s a revised completion date.

So it would be a best-effort programme. And then the combinations of whether it’s Contractor delay, Employer delay, or a combination of both.

If you have to mitigate something because it is going to be your delay, work out what the cost of that mitigation may be: acceleration, double shifts, nighttime work, etc. What’s the cost of that compared to the daily cost that you’re going to be levied against? If it’s cheaper to go and do the acceleration measures at your cost, then do it. Or take full damages and lose your reputation with the client.

The questions covered in this blog were answered by Lee Sporle

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