On sixteen October 2002, the Society of Construction Law issued its “Delay and Disruption Protocol”.
The Protocol was produced by way of a drafting sub-committee formed by way of a group of individuals of the Society of Construction Law.
The Protocol isn’t meant to be a contract document, however it does present recommendations and guidance to those involved with drafting contracts.
The Protocol is meant to act as an aid to the interpretation of the delay and disruption provisions contained in common civil engineering and construction contracts.
The ideas, suggestions and/or recommendation contained within the Protocol are meant to be used as a common statement and guide only.
The purpose of the Protocol is that in time, construction and civil engineering contracts will undertake the Protocol’s guidance as the most effective means of dealing with issues of delay and disruption which come up throughout the contract.
PROGRAMME AND RECORDS The Protocol recommends that a correct programme must be submitted from the contractor and approved through the contract administrator. The programme is a very important monitoring instrument for the Protocol, and the Protocol envisages that the up to date programme would be the primary instrument for establishing out the amount of any extensions of time.
PURPOSE OF EXTENSION OF TIME The Contractor is relieved from his legal responsibility for damages for delay in completion typically in the form of liquidated (damages). The mechanism prevents time becoming “at large”.
ENTITLEMENT TO EXTENSION OF TIME Purposes for EOT will have to be made at or on the subject of the time of the delaying event. The Contractor is only entitled to extensions of time for situations for which the Employer has assumed risk and responsibility, and only where these delays impinge upon the critical path. Extensions of time will have to be in response to reasonable prediction of the delay.
FLOAT AS IT RELATES TO TIME Extensions of time will most likely be granted to the extent that the Employer Extend is expected to reduce the full amount of float on the activity path to zero. This may occasionally range if express provisions within the contract are on the contrary, and the Protocol recommends that such specific provisions are written into contracts.
FLOAT AS IT RELATES TO COMPENSATION The Contractor is entitled to recover cost in the event the delay event caused by the Employer has prevented him from completing the works based on the Contractor’s forecast completion date (a date past than the contract completion date), provided the Company is made aware of the Contractor’s intended forecast completion date sooner than the parties entered into the Contract and that the sooner completion date was reasonable and practicable.
CONCURRENCY OF DELAY – ITS EFFECTS ON ENTITLEMENT TO EXTENSION OF TIME In the instance the Contractor’s prolongaiton happens concurrently the Employers Delay, this should not reduce the Contractor’s overall entitlement to an EOT. The Protocol seems to disfavour any moves against attempts to apportion blame and/or to determine such blame when it comes to proportion reductions in extension of time entitlements.
CONCURRENCY OF DELAY – ITS EFFECT ON ENTITLEMENT TO COMPENSATION FOR PROLONGATION In the insance the Contractor’s Delay and Employer’s Delay happen on the same time, the Protocol advises that the Contractor could be entitled to extra costs where the Contractor is ready to separately establish those extra costs as a result of the Employer’s Delay. If the extra costs would have been incurred because of the Contractors Delay in any event, the Contractor shouldn’t be entitled to the reimbursement of these costs.
MITIGATION OF DELAY AND LOSSES The Contractor has an obligation to mitigate the effects on his works, minimising loss and making an attempt to reduce any additional loss. Then again, this responsibility does not extend to requiring the Contractor so as to add further tools or to work outside the agreed working hours.
VALUATION OF VARIATIONS Both Parties should attempt to agreed the costs for the Variations together with the direct prices and the time associated charges.
BASIS OF CALCULATION OF COMPENSATION FOR PROLONGATION The target is to place the Contractor again into the same position as if the Employer Risk Event had no longer took place. Compensation for prolongation (rather than contract variations) is primarily based upon the real additional costs incurred via the Contractor.
RELEVANCE OF TENDER/BID ALLOWANCES The bid allowance has restricted relevance in the analysis of rates and/or prices in terms of prolongation and disruption, as a result of breach of contract or any other cause.
PERIOD FOR EVALUATION FOR COMPENSATION The analysis of the sum due for prolongation costs is in line with the duration when the impact of the Employer’s Risk Event was felt and not based on the prolonged duration on the completion of the contract.
GLOBAL CLAIMS Global claims are discouraged by means of the Protocol and certainly are infrequently accepted by way of the Courts. The Protocol states expressly that: “The not unusual practice of contractors making composite or global claims with out substantiating cause and effect is discouraged by way of the Protocol and is rarely accepted by way of the courts.”
ACCELERATION In the instance where acceleration measures are undertaken, costs pursuant to the contract provisions must be made. In the instance where the contract no longer provides for the cost of acceleration the Contractor and Employer must agree upon what measures of acceleration are to be undertaken and the basis of cost earlier than any such acceleration measures are undertaken.
DISRUPTION Disruption is outlined as a disturbance, problem or interruption to the Contractor’s standard working methods which impacts the Contractor’s productivity.
CLAIM PREPARATION COSTS The Protocol recommends that, where it may be proven that the contractor, or employer, has been put to extra cost because of “unreasonable actions or inactions” in making ready or defending claims, then these prices must be recoverable.