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 that window?

Whether the out-of-sequencing on the forecast after your window shows an incorrect date is not the point or issue. The issue is: what was the actual data and was it recorded correctly for that window?

If you’re looking at a Time Slice or a Time Impact Window Analysis, then, yes, out-of-sequencing may well affect the results of your analysis in every window you are looking at. So, should you reject it? Well, you need clarification.

The Contractor may well have changed the sequence from the original plans, because he’s worked out that he can do it quicker or better, or he’s trying to mitigate and he just hasn’t revised the logic in the programme, which is then flashing up an out-of-sequence. So, it could be one of two things as to why it is out of sequence. So, a discussion with the Contractor about the out-of-sequence and why it hasn’t been corrected is needed. It’s better to correct, but it’s still possible to do a reasonable analysis if you have a look at the critical path and that out-of-sequence.

I’ve seen projects with a 30,000-activity programme with 60 monthly updates and found every update has an out-of-sequence. You may not have the time permitted to go back and correct that. Again, it is down to your agreement with your Client. How much time and money do they want to spend? I’ve seen out-of-sequence corrected and give the same answer.

There are some tests you can do with Primavera software.

It all comes back to your contemporaneous records. If you’re relying on your schedule update to be your accurate contemporaneous record, you have to put in the time and effort to make sure that every update is correct.

Likewise, the programme for the project. The reviewing party should ask that question: You’ve got out of sequence; can you correct it? Because if you are working to a revised sequence, you’re not working as planned, for whatever reason, delays, better sequence, manpower and/ or materials shortages. The logic you’ve put into that programme has changed and you need to ensure the programme reflects this revised sequence.

It’s really important to make sure your updates are correct, because otherwise, your delay analysis is wrong, and it’s going to be a very lengthy and costly exercise to recreate updates for an As-Built programme.

To conclude, no, you shouldn’t reject. You should review it and try and resolve it with the Contractor. If you’re using an As-Planned As-Built Window Analysis, it doesn’t matter. It won’t affect your analysis. If you’re using a Time Slice or Time Impact Analysis that relies on forecasting, then, yes, it will potentially affect your results.

Question 2

Question: This question relates to a question posed two weeks ago, “Who own the float?”

Answer: I want to expand on the answer given: I believe the project owns the float. I stand by that. What I would like to add is, if your contract says that somebody owns the float, then you have to follow the contract.

Of the many contracts I’ve worked on, I’ve only seen one contract that declared the float was owned by the Client. It’s very rare. Therefore, the project owns the float as a general view.

Some years ago, there were two points of view. One, on a lump sum contract, the Contractor should have the float, because he’s taking all the risk. If it is a remeasurable contract, then the Client should have it, because he is paying for it.

Guidelines for planning from AACEI and SCL both work on the basis of first-come, first-served. So, the project owns the float and it goes to whoever gets there first.

The AACEI guidelines state, “Total float is a shared commodity, and is available for consumption on a first-come, first-served basis.” The SCL Protocol principle 8 isn’t so obvious about it, but it works on the basis that, if you want to get an EOT, the Employer delay event has to reduce the total float to below zero, to become negative, which means the project is delayed. Then you can apply.

So, if the Employer delay event has to delay the float, then the float must be there as a common use. So, whilst the SCL is not that specific, you can imply that, as a guideline, that it is a first-come, first-served basis. But, as ever, follow the contract. You can’t be wrong, if you follow the contract.

Question 3

Question: (Follow up on ownership of the float): Would you encourage stating float ownership in the contract?

Answer: No, I would still treat it as first come, first served.

The questions covered in this blog were answered by Lee Sporle

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