The fundamental requirement of construction projects is that the contractor completes the work within allocated budget, specified time duration, and quality. Moreover, construction contract usually enclose the start and finish date of the project. If contractor fails to complete the project within specified time duration then employer has the right in light of construction contract to impose damages on contractor. In order to avoid damages, a contraction contract allows the contractors to claim an extension of time (EOT) in a specific scenario. In the event of success EOT, the contractor is allowed to apply for prolongation claims from the employer. The most complex situation is determining prolongation claims in the event of concurrent delays along the critical path. Concurrent delay occurs where the delay can be attributed simultaneously to the actions of both the employer and the contractor. (Arditi and Pattanakitchamroon, 2006)
In the absence of proper mechanism to assess the actual cause and effect rationally, we are compelled to seek due consideration for concurrent delay issues through certain case law through which such an issue can judged reasonably. A concurrency occurs when two or more delays that are independent overlap in one time. However, it is difficult to determine who in a particular situation is correct, unless identifying the actual cause of delay rationally. Once the project is completed, owner concludes late completion of the project and claims damages from the contractor. In such situation, contractor analyses the situation to assert the concurrent delay in order to avoid or withheld the damages. (Trauner, 2009)
The most fundamental aspect associated with the construction project is uncertainty in terms of cost, time and quality. The variance in completion of the project without a doubt delays the project and has negative effect on performance of the project. Therefore, these delays result in claims for lost time and damages. Contractor view the delays as responsibility of the employer or owner and attempt to tag the loss with employer though claiming extension of time (EOT) and cost. Therefore, apportionment and evaluation of the delay along the concurrent path to raise a sustainable claim is a challenging task. The fundamental factor in construction industry is to determine the delay in efficient manner to avoid the financial losses and minimise the legal complications.(Alkass, Mazerolle and Harris, 1996)
Contractor proposes a situation stating that the delay is because of concurrent events and contractor owns a time extension. It is a common view that critical path analysis is the best option to deal with this situation as far as apportionment is concerned. Critical path analysis is the best procedure to illustrate the effect of critical activities in a work program by outlining the logical link between activities. It directly affects the completion of the project and through which it becomes an appropriate tool to assess a reasonable ground for the apportionment of effects of concurrent delays between employer and contractor. The aim of this dissertation is to study the effects of concurrent delay along the critical path. How concurrent delay affects the extension of time and damage claims. Prolongation claims are made for an additional cost which are related to time for the situation where delay is caused by the employer. (Ibbs and Nguyen, 2007)
Construction contracts international (4th.Edition) prepared by FIDIC (Federation International des Ingenieurs), apply conditions between the owner and the contractor for work of civil engineering. If the contractor is unable to complete the project in time then the employer can impose liquated damages on the contractor under section 47.1 of contract law. On the other hand, contractor can claim extension of time (EOT) under section 44.1 in case of any delay by the employer or such events, which are beyond the control of contractor. Furthermore, contractors can claim extra payments under section 53.3 of contraction contracts international. (KÖKSAL, 2011)
There is a lack of clear understanding on concurrency delay in law due to lack of clear definition and it makes the situation complicated. Employer wants to complete the project with the allocated budget, quality and in time. However, delays are common phenomenon in construction projects around the world. Construction contract internationals are unable to provide clear explanation and resolution for concurrent delay. In concurrent delays, contractor and owner of the project follow independent delay on the critical path. Nevertheless, these events delay the completion of the project with same approximate period.(Hewitt, 2011)
There are number of techniques used by the industry to study the concurrent delay and consequently raise the claim. The key problem is contractor and employers estimate the delay based on sample calendar rather using specified technique such as CPM as well as it ignore the delay factors. One of the fundamental problems exist in concurrent delays are causations, entitlement as well as damages either by the employer or contractor. The nature of concurrent delays is complicated because of lack of clarification in the law and unsystematic study of delay along the concurrent path. (Alkassa et al., 1995)
Due to the delay along the critical path, prolongation claims are common practice. However, the challenge is to identify and assessing the concurrent delay in events to settle disputes for prolongation claims. The contractors defend against the liquidation damages to use concurrent delays, if project is delay or to make prolongation claim against the owner. One of the most common situation in which contractors usually use concurrent delay as an excuse is after the completion of the project. (Kelleher, 2005)
It is important to study, what factors caused the delay as well as how concurrent delay is relevant to prolongation claims. Enclosed in contracts that a contractor will notify delays within specified time, but a contractor used concurrent delay to avoid time related damages or contractor want to claim an additional cost. Concurrent delay evidently proved a rare situation in terms of delay analysis but due to the unclear proposition in the law for concurrent delays, it raises legal and practical complications. (Krishnaswamy, Sivakuma and Mathirajan, 2009)
Moreover, based on factors, possible solutions can proposed to avoid concurrent delays and best apportionment of the prolongation claim. The aim is to investigate circumstances contributed to concurrent delay events. It will be used to extend the overall completion of the project and apportion the cause and the responsibility between employer and contractor for the establishment of delay claim and loss & expense claim. (Garza, Prateapusanond and Ambani, 2007)
It is a common view that critical path analysis is the best option to deal with this situation as far as estimation of prolongation is concerned. Investigate the facts thoroughly where the loss and expense were evidenced both by events for which the employer is liable and by events for which he is not liable. Critical path analysis is the best procedure to illustrate the effect of critical activities in a work program by outlining the logical link between activities. It will directly affect the completion of project. Through which it becomes an appropriate tool to assess a reasonable ground for apportionment of effects of concurrent & sequential delays between employer and contractor.(Keane and Caletka, 2009)
Despite enclosed in the contract, a contractor is obliged to provide written notice of delay in defined period. However, contractor may or may not pursue such delay to substantiate concurrent delay. Consequently, the owner of the project is usually taken by surprise when a contractor filed for concurrent delay at the end of the project. To assert the concurrent delay, it is important to access causes of delay from contractor and employer perspective. (Bramble and Callahan, 2010)
Scheduling problem is common in the construction industry and almost all contract face disputes and prolongation claims. The legal and financial cost along with time involved has risen for practitioners and researchers to come up with solution to minimise the claims and disputes in the industry. The number of schedule related problem include the float, logic to access the delay as well as resource allocation have significant effect on the construction project claims estimation. Therefore, it is important to examine the delays along the critical path in order to ascertain the claim in an appropriate manner. The most of the previous research work focus on the resource allocation and scheduling. However, no attempt has made to study the concurrent delay along with critical path and how it effect the estimation of prolongation claims in order to minimise legal and financial complication. The key questions to ask what causes the delay, studying the concurrent delay along critical path and how concurrent delay affects the prolongation estimation.(Finke, 1999)
The fundamental question is what event entitles the contractor extension of time or liquated damages. Despite the fact there are number of perspective available to estimate the prolongation damages and parties have own perspective on concurrent delay. However, in this dissertation we will determine the principle factors from the contractor’s perspective that how concurrent delays should be examined along the critical path and presentation of claims based on concurrent delay estimation. The study will try to establish a framework based on the previous judgements and case studies to effectively estimate the delay on the concurrent path to claims prolongation as well as minimise the legal complications. According to Zack 2011, there are evident that contractor fails the claim because of flaw in presentation of the facts. The fundamental is that contractor tries to estimate the delay based on the calendar rather using a systematic approach. (Bordoli and Baldwin, 1998)
The questions are what are concurrent delays? How to determine these delays? Whether the critical path affects the progress of the project? In addition, how concurrent delay impact prolongation claims? In which situation contractor is entitled to prolongation claims. How to deal with critical path delay as the concurrent delay is a complicated situation? Moreover, concurrent delays are used as excusable delays and prolongation claims made the situation legally complicated. (Ramsey and Limited, 2007)
The aim is to find ‘the effectof the concurrent delay on the critical path and how contractor use concurrent delay as shield in estimating and defending prolongation costs.’ The specific objectives of the research include:
Research will highlight the concurrent events are analysed by the contractors along the critical path. Moreover, it will examine how the contractor and employers for prolongations claims use concurrent delays. Concurrent delay is the main factor to be considered in determining concurrence effects for extension of time and in loss and expense claims. (Thomas and Wright, 2011, p.93)
The significance of the study could not emphasize less as it is intended to highlight that how concurrent delays affect the critical path. Moreover, it will highlight how concurrent delay along the critical path is examined by employer and contractor. Furthermore, it will highlight how concurrent delays impact upon the prolongation claims. The problem of concurrent delays is not the address in the construction contracts international. Therefore, this study is useful to examine how different legal judgement has historically dealt with concurrent delays. At last but not the least, study will focus and highlight the situation in which contractor is entitled to the extension of time or cost because of concurrent event. The impact and consequences of concurrent delay in construction are legally and technical issue to address in order to resolve complicated situation of prolongation claims.(Davison, 2008)
The study examines how concurrent delays are analysed along the critical path and consequently effect of concurrent delay in prolongation claims. However, ‘human behaviour’ remains the basic matter of concern. Despite the fact, technology highlights the problem; legal contracts are used along with effort deployed to study the concurrent delay phenomena. Nevertheless, human behaviour and attitude remains a major factor in prolongation claims. The contractor uses concurrent delays as a shield against employer. In addition, employer want to claim liquated damages depend upon the human nature. Therefore, we will able to highlight the concurrent delays and estimation of concurrent delays, human behaviour. Intention cannot be examine and remains the fundamental factor behind the prolongation claims.(Mace et al., 1994)
According to Wiezel 1991, the law is unclear about concurrent delay in the contractual context. The situation gets even worse because of the lack of clear explanation of the law. There is no clear understanding of the position of the employer and contractor while dealing with concurrent delays. The recent decision of court for concurrent delay has raised the sense of injustice as well as increase debate to define and analyse concurrent delay, usage of concurrent delay to estimate the prolongation claims, the law explains for concurrent delays as well as position of employer and contractor once the prolongation has establish. The lack of explanation and definition has raised the uncertainty in the area of concurrent delays.(Wiezel, 1991)
According to Leea, Peña-Morab and Parkc, 2006, an understanding of construction project scheduling is useful to highlight schedule problems and prolongation claims in projects. The schedules and consequently concurrent delay result in EOT and prolongation claims. The number of scheduling techniques involve As-planned schedule, as built schedule and entitlement schedule. However, the technique adopted for this dissertation involves critical path method (CPM) analysis. CPM is used to schedule the project especially with the help of primavera and Microsoft project has made it most adopted technique in the industry. Construction contract, contractors, and court have recognized the value and importance of CPM analysis to identify the concurrent delay and have used the CPM analysis to identify the impact of delay. However, using CPM has itself questions such as how delay should be analysed, role of resources as well as project schedule. (Leea, Peña-Morab and Parkc, 2006)
‘A delay is defined as period of time when something need wait because of associated time period. In other words, it can be defined as a situation, which does not incur when it should occur. In the context of construction project management, a delay involve circumstance in which project cannot be completed in time. Furthermore, it is defined as a situation when schedule event get extended along the critical path and give raise to situation which result in financial and legal disputes.(Bubshait and Cunningham, 1998)
Disruption is usually related to activity which has resulted in poor performance or output as which as in caused the changes to the working environment. In comparison with delays, disruption can caused changes in scope and working environment of project without effecting the overall completion of the project. Acceleration is usually offered to compensate the delays happened in the completion of the project. Furthermore, schedule acceleration include situation in which more work is carried out in particular to meet the delay. The acceleration is achieved through adding more resources by the contractor and using estimate and manages differently than delay prolongation claims. (Cushman, 2000)
There are different types of delays in contraction industry, which include schedule delay, excusable, and in excusable delay as well as compensable delay. These three types of delay may correspond to employer, contractor or third party associated with the project. Nevertheless, construction contract imposed a clause, which is known as no-damage for the delay. The scenario is different in such situation as the contractor may cause several delays or some inexcusable delays may not attribute to contractor. The responsibility and liability in these events is defined by contractual terms and enforcement. (Kim, Kim and Shin, 2005)
|Figure 1: Concurrent Delays|
Concurrent delays usually incurred when multiple responsibilities as well as activities are attached to project. The delay claims are much more complicated and there are no clear provisions through contractual terms or enforcement. This makes the situation difficult as these claims are used as shield by contractor as well as employer imposed damages on the contractor.
Concurrent delay is defined as two or more delays occurring at same time and if one of them has incurred or event would have delay the project. Nevertheless, there is no consistent and affirm agreement on how concurrent delay should be defined. The fundamental issue rise when both parties use contractor and employer use concurrent delay as a shield to each other. For example, employer used them to avoid prolongation claims whereas contractor use the concurrent delay to avoid the inexcusable to avoid damages claimed by the employer.(Antill, 1990)
Float is a key factor in order to determine whether an event has resulted delay to the project. The important factor is to determine who has result the delay. The legal judgements and practitioners are confused to ascertain who is responsible for the float. Float is better defined by network analysis technique and therefore, CPM is superior technique to identify the float in activities. In CPM, slack or float is defined as the time along which a project can be delayed without delaying the overall completion of the project. In addition, float is the key to determine the amount of time along with project could delay and there is no effect on time of completion of overall project. (Antill, 1990)
Critical path is defined as network path with float in it. Activities on the critical path are defined as critical activities. In other word, these are activities with zero slack and crucial in order to timely complete the project. Nevertheless, the relationship between critical path as well as float is difficult to define and therefore, CPM analysis in a useful tool in analysing such delay. The key issue in order to determine the delay along the critical path is how it owns the float. The employer uses total slack in order to accommodate the changes in order to reduce the time impact on original schedule of the project. Therefore, the fundamental question is how is responsible for the float and how to determine the delay along the critical path. At last, not the least, CPM analysis plays an important role to determine the slack. CPM analysis is consider as the best practice to analyse the delay along critical path and has been a widely practice technique. Therefore, the question is how to effectively examine the effect of concurrent delay on the critical path and consequently determine the effect of concurrent delay prolongation claims. (Fullerl, 1982)
Concurrent delays are classified as excusable delay, which permits contractors to claim time extension and liquidated damages. Excusable delay is usually not attributed the actions of the contractor but it is used for extension of prolongation claims. It is important that claim should be based on concurrent delay along the critical path that actually resulted in project delay. The important criteria for assessing concurrent events are 1) delay should be critical 2) delay events are independent 3) delay events occurred at the same time. The Doctrine of concurrent delays does not propose an equitable solution, but it is based on the previous litigation failure. (Burns and Wellings, 2007)
According to Popescu, 1995, p 188, there are several causes of delay depend upon the situation. The situation involves in which owner and contractor but employer delay entitle contractor for time-related. The next situation involves a delay on the part of the contractor because of the natural event, which entitles more time but no additional cost. Owner resulted in a delay because of neutral event and this entitle contractor to claim both time and cost. Moreover, employer results in a delay, which gives contractor a right to claim prolongation expenses for time and cost. At last but not the least there is the situation in which contractor delay in an event but entitle to both time-related and cost. The table below summarizes delay and possible entitlement for the contractor. (Popescu, 1995)
For example, with reference to concurrency consider the following scenario. An architect has resulted in the delay, as it is enable to provide the site access to contractor for one week. On the other hand, contractor was unable to start the work for one week because of lack of labour. Resulting, the delay is classified as concurrent as both parties have equal fault. The employer would be unhappy, as he has to compensate for damages to the contractor as well as it cannot apply for liquidated damages. Similarly, contractor is also unhappy as he has to pay damages and cannot recover its cost. Therefore, there is a lack of legal explanation on how to deal with such scenario. In addition, when party claim damages against another, the situation becomes complicated.(Knowles, 2012)
According to Haidar 2011, p107, a large construction project, critical path is more than string of activities without any float. The activity with less one week of float is classified on the critical path, as there is time risk associated with the activity. Nevertheless, critical path is more than just string of activities with zero floats. Therefore, when excusable delay incurred, it shifts the critical path or extend the critical path.
According to Bubshait and Cunningham 1998, three delay measurement processes are 1) AS-Planned schedule Delay Analysis, 2) As-Built Schedule Delay Analysis 3) Modified As-Built Schedule Delay Analysis. Where employed has to measure the impact of the delay utilizing computerized critical path method analysis. In general, the evidence reveals the widely accepted method of determining the impact of project delays is “As planned vs. As-Built Schedule Analysis”. It is claimed that critical path analyses are the most tools in order to study and highlight the effect of these delays. (Haidar, 2011)
The factors that affect identification concurrent delay are highlighted in the following scenario. The first scenario is to determine whether a delay is either literal or functional. In the case of literal delay, the events occur simultaneously. Moreover, functional delay involves the delays that are resided as well as concurrently effect the completion of work.
Functional theory uses CPM analysis to analyse the time period delay. It is better to examine the delay on same CPM rather than developing s separate concurrency analyses chart. Functional theory allows CPM schedule and claims near critical delays can be concurrent as shown in the diagram. The next situation to analyse the concurrent delay involves determining the causes of delay of the delay as well as how this has effect the project. There is a difference between concurrent causes and effect of concurrency delay. In the diagram below, delay caused approach is studied. The identification of delay event as independent for the planned duration and it is driven by nature of the event. (Long, 2015)
In the above diagram, piping ‘Activity A’ was planned to complete in 30 days. However, after 15 days a new order was issued by the owner, which resulted in additional 45 days’ work. Therefore, the delay was caused by the changed order. The revised schedule can be calculated by adding 45 days and new completion of work can be forecasted. On the other hand, delay effect approach explains that the delay cannot be estimated until there are changes in the plan activity of duration. Similarly, for Activity A, change order issued after 30 days of completion of work, which has resulted in the completion of work after 45 delays. However, delay effect has pushed the activity B start by 45 days. (Peters, 2013)
Therefore, causes of the delay highlight the factors behind the delay and factors have an effect on the project. The effect of delay highlights the delay through quantification. The literal theory of concurrency is more relevant to the delay cause and delay affect theory. When delay incurred concurrently then it is important to determine the causes of delay rather determining the effect of delay.
According to AACE international, the frequency and distribution plays an important role in order to determine the concurrent delays. Another important scenario to determine the concurrent delay involves frequency and duration of the analysis to determine concurrent delay. Frequency shows the number of terms defined to conduct the analysis along with the duration refers to no. of days in each period. Therefore, continuous update of the schedule of work minimise the subjectivity in case of consistent reporting. Either the principle method to examine the delay is to update the schedule, based on the date or updating based on specified event. Frequency and duration analysis is consistent with a functional approach to examining the concurrent delay along the concurrent path. This approach is much more useful to conduct the multiple analyses. (Bramble and Callahan, 2010)
The next scenario is determining the extraction of delay to identify the concurrent delay as well as quantification of the delay event. The extraction of delay is commonly studied through time impact analysis. As built for analysis the delay is placed in reverse order from the last window to the first window. The concurrent delay is determined by using the retrospective information. Therefore, when comparing schedule delay through comparison of the hinder sight result blind-sight result over the duration of the project.
In blind-sight method, the original schedule of work is 21 days and the status update started after 20 days. Therefore, as per blind sight method, the period of 20 days, calculated from one window and it is difficult to determine the delay of first 20 days. Therefore, the only way to determine the delay is once the window is closed. However, hinder represent much more quantitative approach. For example, as per diagram, if the activity, the first will complete in 21 days but when the status updated after 20 days, it shows the project until the 5 days pending to its completion. The last approach to determine the concurrent delay is direct or indirect pacing. Pacing is used to study the concurrent delay when delay incurred in more than activities. In pacing, contractor deliberately used to slow the progress of work. Nevertheless, concurrent delay incurred when independent activity and the factor causes the delay are independent. The direct pacing is a situation in which delay incurred for the successor activity due to the delay in preceded activity. (AACE International, 1999)
In summarizing, the analysis of concurrent delay in light of critical path can manage through the number of approaches. The first method is analysing whether the delay is functional or literal. In literal approach, delays are simultaneous whereas, functional approach studies reside delay as concurrent. Another method to analyses the concurrent delay involves cause of delay and the effect of delay. If delays are parallel, then causes of delay are important to determine. In the case of residing delays, which are considered as concurrent, effect of delay must be examined. Extraction of delay is another technique used to study concurrent delay along the critical path. The extraction of delay is commonly studied through time impact analysis. As built for analysis the delay is placed in reverse order from the last window to the first window. The concurrent delay is determined by using the retrospective information. Blind-sight technique along with Hinder-sight is also used to study the concurrent delay along the critical path. Pacing is used to study the concurrent delay when delay incurred in more than activities. In pacing contractor deliberately used to slow the progress of work.
According to Gibson, 2008, p 132, contractors try to determine the prolongations claims in number of ways, which involve either logic or without testing the law. The number of claims made because of budgeted completion time against the actual completion time associated with the project. Nevertheless, this vague estimation is not acceptable in law and reasonable evidence must be provided in order to ascertain the situation. In order to claim for the loss, it is important that there is a delay in contract and cause of delay explained. Contractor must prove that delay was caused by the principle through breach of contract as well as the event, which has resulted in such delay. In order to ascertain the claims law, it is required an evidence for the delay. Therefore, in order to ascertain the claim, delay should incur along the critical path. There is no claim in such situation where contractor has control of the situation. (Gibson, 2008)
The determination of effect of concurrent delay for prolongation estimation is a difficult task. To ascertain a delay claim experience, details, judgement analysis are required to examine the impact of cost and time associated with project schedule. The clause based on liquidated damages results the employer to calculate the damages.
However, sometimes due to unusual circumstances, employers want to claim and it will draw results that are more favourable. The two types of delays employer usually claim are direct damage as well as consequential damages. On the other hand, contractor can also claim direct or indirect loss. Therefore, it is important to analyse the concurrent delay along critical path in efficient manner to ensure the successful outcome prolongation claims. (Pickavance, 2005)
According to Keane and Caletka, 2009, p 207, concurrent delays in construction projects and it presents a tool to support to analyse delay claims. The paper reveals apportionment of responsibility for delays after the job is completed thus reflecting the schedule sequences. Further concurrent delays could be evaluated in different paths of existence for more than one critical path on projects. The whole paper discusses different delay types and their apportionment of liabilities. (Thomas and Wright, 2011)
SCL Protocol refers to “true concurrent delay” which it defines as “the occurrence of two or more delay events at the same time, one an employer risk event the other a contractor risk event and the effects of which are felt at the same time”. The SCL protocol does recognize this very real situation by noting that concurrent delay is often used to describe the situation where two or more delay events arise at different times but their effects are felt (in whole or in part) at the same time. (Keane and Caletka, 2009)
According to AACE, the outline to establish the responsibility of delay is summarised in the following table (AACE International, 1999)
According to Davison (2008, p 147) to ascertain concurrent delays, there are legal principles available, which help the employer and contractor to assert the situation. The first legal principle is called ‘prevention principle’. It is based on the historical decision of cases Wells vs. Army and Navy cooperation (1903). In the light of the case, it is evident that if a contract highlight there is a limited time available for contractor to complete the project and owner actions have resulted in a delay along the critical path. (Trauner, 2009)
Therefore, delay is incurred because of action of the owner, and then contractor is entitled to time and cost damages. The next legal approach to ascertain the delay through burden of proof in which victim party needs to show the damages resulted because of such delay. Therefore, claimant needs to show that damages have incurred due to plaintiff and his action does not result in breach of contract. (Davison, 2008)
According to Potts and Ankrah, 2014, p 274, the next factor in order to ascertain the prolongation claims is that the party cannot claim damages because of its owner’s error. The legal conceptual that validate the recovery of actual damages in case does not hold validate in case liquidated relief damages for delay.
Therefore, if contractor delay the project because of owner but contractor compensate for the delay in term additional time provision as well as relieved for liquidated damages. In such cases, damages can only be provided for time-related damages. (Potts and Ankrah, 2014)
In summarizing, concurrent delay and legal principles and its possible implication in prolongation estimation, the standard situation is that if the owner is responsible for the delay then contractor can claim damages (EOT). Moreover, if the contractor is responsible for the delay then contractor can claim the loss. However, the fundamental question goes back to the examination of critical path whether the evident highlight by either party is legal support for the critical path. Moreover, the legal principle available to explain the delay involve prevention principle, proof of burden as well as contractor cannot get benefit from own mistake remain the fundamental in assessment of claims.
According to (Eggleston, 2009)
|Sr.||Scenario||Case Reference / Approach||Applicable situation|
|1||If the contractor is causing delay, which entitle him for time claim, but parallel delay is caused by the employer.||Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited||When there are two events co-operating and breach of contract in one situation result loss. Therefore the breach alone is sufficient for judgment|
|2||When there are more than one event responsible for delay||Dominant clause||The loss resulted because claimants rely on and consequently it is dominated clause|
|3||Attribution of concurrent delay to neutral events||Watkins White Construction Ltd v Commonwealth1|
and Armstrong Construction v Council of the Shire of
|The judgment made it difficult to explain the situation in case of neutral event rather the attribution at part of owner or contractor.|
|4||Contractor claim extension of time because of delay caused by owner due to change in design, which resulted variations||Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited||When two concurrent events incurred and result in delay and other is not. Therefore, the event which has resulted in delay on the project|
|5||Delay on a part of the owner because of design team removal. New architecture award eight weeks extension to shepherd but deducted a damages of £ 150,000||City Inn v. Shepherd Construction||When judging a concurrent delay which is caused either by the intent or due to lateness of instruction.|
|6||Legitimate actions of the employer may be characterized as prevention if delay occur beyond the completion date||Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd.||Construction contract has ambiguity in the term of time clause associated.|
|7||Contractor tries to claim prolongation claims on the government because of the concurrent delay.||Smith v. The united states||The judgment decided contractor is not entitled to losses when itself in delay and makes no efforts for apportionment of loss|
The extension of time in the construction contract international is not only to protect the contractor as well as to help the employers. They do not have to pay liquidated damages. In the case of concurrent delay, which entitle contractor time extension (EOT) because of the employer has responsibility for the delay. The example of ‘London underground vs. City link telecommunication Ltd , in which contractor was awarded the time extension.
However, the employer levied the liquidated damages despite the fault. Another case to highlight the position of the contractor involves case of ‘Peak Construction v McKinney’ as well as case of ‘Henry Boot v Matmaison’. The outcome of the case was “…if there are two concurrent causes of delay, one of which is a relevant event, and the other is not, then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event”.
The next example to highlight the position of contractor in the case of ‘Royal Brompton Hospital v Hammona’, and decision associated with the case that contractor deliberately delay the project by not completing the work and doing so it has risen the contractual risk. The relevant events … it would be entitled to extensions of time by reason of the occurrence of the relevant events notwithstanding its own default.”Therefore, in this case, despite the fault of the contractor, the entitlement of EOT was given to the contractor.(Whatley, 2014)
The contractor entitlement for the cost and expenses represents a different scenario. There is no legal explanation or principle is available in order to determine the cost apportion or claim for the contractor. The number of events which involve cost compensation are limited when compare with of cases for time award. The recent award of compensation in the case of City Inn and John Doyle has given rise to number of questions.
The decision raises the different question towards the principle of causation. The case of ‘John Doyle’ is different as cost was apportionment among the relative parties. Despite of the fact that the employer was responsible for the material loss of the project but judgement given highlight the apportionment of cost. (Furst et al., 2012)
To successfully, determine the prolongation claim, the fundamental issue is concurrent delay analysis in terms of owner and contractor. It is evident that both employer and contractor as shield to defend damages against each other use concurrent delay. In general, to avoid the shield contractors are usually awarded the extension of time (EOT) and employers unable to claim the liquidated damages in case of concurrent delay. Therefore, to assert the situation it is important case should be present on the basis clear evidence.
This chapter analysed reviews area related to concurrent delay analysis, prolongation claims, legal aspect attached to prolongation as well as examine the apportionment of cost. The analysis of concurrent delay along the critical path can be managed through number of approaches which involve the functional and literal technique, causes of delay and effect of delay, extraction of time from critical path, frequency and duration determination, hinder sight and blind sight concurrent delay estimation. At last but not the least, pacing can be used to determine the actual delay along the critical path and highlight who is actually responsible for the loss. Moreover, AACE provides some basic guidelines in order to determine the responsibility for loss. Nevertheless, the legal position remains vague. Despite of the fact, there are legal principle available in law which are prevention, principle, proof of burden and person cannot claim from its own negligence but judgement from different case remain a question on part of law.
This chapter encloses the research method used to explore the objective of the dissertation. The success of the research objective is dependent upon the research design. Furthermore, this chapter encloses research methodology used to explore the problem. The research methodology used is case study approach, which has given the flexibility to study the data in wider concept. The case study research methodology is used to analyse the secondary data. According to Robson 2010, case study based research is useful as ‘A strategy for doing research which involves an empirical investigation of a particular contemporary phenomenon within its real life context using multiple sources of evidence’. This study used the previous cases as well as document analysis to judge the situation. (Krishnaswamy, Sivakuma, and Mathirajan, 2009)
Research methodology and design plays an important role to achieve the objectives of research. To establish how concurrent delays examine along critical path its effect on prolongation claims, this research will analyse multiple case studies illustrating concurrent delays scenario along with legal judgement. (Thomas, 2003)
The case studies (legal judgments) will help to analyse the previous scenario and consequently will build into a single case. The researcher wants to study concurrent delays event proposed by contractors and employers.
The analysis of factors along the critical path in comparison with the actual methodology will highlight the gap. Case study approach is the most effective in scenario while the natural events need direct observation. The findings from the case studies will generalize into a theoretical framework developed from the literature review. Moreover, rich methodology will deploy to study the critical path, which is helpful to define structure of the scenario in given context. (Yin, 2013)
According to Kasi (2009, p96), the research method deployed is qualitative in nature along with interpretive approach, which is used to understand human actions inherent in the situation. The case study research approach is based on secondary research. The secondary research involves reading past legal case on concurrent delays, relevant journal articles, as well as textbooks, which deal with concurrent delay. The articles and legal judgment will source through online full texted online databases.
The articles used have already published and rated as top quality, especially in construction and legal field. Moreover, to develop an understanding of critical delay on descriptive methodology will be used. Therefore, focusing on qualitative technique will help the researcher to develop understanding on concurrent delays and legal implications as well as how critical path in directly linked to concurrent delays. (Kasi, 2009)
According to Creswell (2004), the qualitative research is known as phenomenological approach whether as positivist approach is linked quantitative research approach.
To study a social phenomenon, positivist approach is used. This approach is largely used to study the social science phenomena as well as to determine the facts associated with a particular issue. Positivist approach deploys well-structured and rigid approach in order to facilitate a quantifiable phenomenon. Positivist approach pays more attention to the details but does not pay any attention to the subject. This approach is much effective to explain the social realities, as it believes these realities are independent of the knowledge of the people. Positivist approach is useful to provide the basis to study a social phenomenon and confirm the facts.(Tashakkori and Teddlie, 1998)
The study of human behaviour in the social context can manage through a phenomenological approach. This approach looks at experiences of those who are involved in the situation in order to develop an understanding about the experiences of those individuals. Moreover, it is useful to experience the social reality as well as useful to give meaning to the social event.
With the help of social phenomena, researcher can develop an understanding of the issue from the real world. This approach explains the social interaction and helps to interpret the social events. In this study, phenomenological approach is deployed to observe the social behaviour and judgement for different case studies. This allows developing the understanding how individual with situation in light of different theories and events. (Novikov and Novikov, 2013)
In order to meet the objectives of research qualitative, research approach is deployed. The purpose of the qualitative approach is the degree of flexibility to study phenomena approach offer through analysis the case studies as well as academic journal to analyse the situation. The nature of the study, in order to determine the effect of concurrent delay on critical path and estimation of prolongation claims, can be studied though from different case studies. The fundamental difference between the qualitative and qualitative approach is a methodology used to study the event and scenario.
Qualitative approach is more concern with developing understanding of a social event and derived result from it. In the case of the qualitative approach, researcher cannot separate itself from the situation. Moreover, qualitative approach is concerned with developing a relationship between the variables.
The qualitative research is important to understand the different variables, concepts, theories, characteristic of subjects as well as a description of different items. It is useful to measure the outcome of different variables. Qualitative research is much more flexible in terms of information it provides about scenario and it takes less time to analyse and interpret the results. (Tracy, 2012)
Quantitative approach is much more analytic in approach and useful to present the numerical data or interpret the variables. Qualitative approach involves interpretation approach to identifying and explains the variables in the social environment. This approach is much more effective to summarize the data as well as when data is largely numerical quantitative research approach is much more flexible.(Mills, Bonner and Francis, 2006)
One of the important things associated with the research to explain whether research is inductive or deductive. Deductive approach is used to test a hypothesis or theory. On the other hand, inductive approach used in building a theory and draw results through generalisation of phenomena.
Inductive approach is much more useful to summarize broader events as well as it confirms the hypothesis rather presenting a theory or model. In the light of this study, inductive approach is used to study and analyse the different models, principles, academic papers as well as case studies to generalise the siltation and present a narrow perspective.(Johnson, 2004)
Constructionism is a useful approach to perceive reality in socially constructed manner. Constructionism exist in the mind of people and it is useful to interprets, analyse and understand the social situation through reconstruct the situation. This is helpful to give meaning to the situation, draw a result as well as proposed the desire results. Moreover, constructionism involves building knowledge about social reality and situation but it does not involve building reality itself.
The philosophy behind constructionism approach based on that people perceive things in different context and construct different meaning from same situation. Nevertheless, constructionism involves setting up situation from different stakeholder’s perspective particular when studying phenomena in social context. In the light of constructionism, a situation develops as more information is received and interpreted. Therefore, phenomenal approach along constructionism seems to draw positive results. Therefore, constructions approach will help to develop an understanding from the case studies and interpret the scenario. (Bryman and Bell, 2011)
This approach is useful in order to interpret the social realities and give meaning to the behaviour of people. Interpretation considers as a social process, which assume researcher cannot separate himself from the situation. According to interpretivism, approach, world is complex and it is difficult to break that into observable laws. The interpretivism provides opportunities to give meaning to the social context from the researcher perspective.
It helps to highlight the subjective nature present in the social context and motivate the people behind such actions. The interpretation of case studies, principles, and data from academic sources is useful to develop an understanding of the situation as well as present the result in much better meaning.(Yanow and Schwartz-Shea, 2006)
The secondary data is used to study the concurrent delays and prolongation claims in the construction industry. The secondary research involves reading the past legal case/judgements on concurrent delays, relevant journal articles, as well as textbooks, which deal with concurrent delay. The articles and legal judgment will source through online full texted online databases. Data collection is important component of the research. The data collected should be accurate and accuracy of data plays an important role in outcome of the research. The validity of the research results and achievement of research objectives is based on the data.
There are two types of data, which is used in the research known as primary or secondary data. The primary data is collected when research questions cannot be answered through secondary data. Secondary data plays an important role in order to identify, analyse, and develop the problem. Literature review is an important component of secondary data that is built through journal articles, books as well as other quality data available from different sources. (Kothari, 2004)
Sampling is known as selecting the data from large population based on particular element. There are usually two categories of sampling which is probabilistic or random sampling. Probability sampling gives known change of every member of population being selected. On the other hand, random sampling involves selecting a member from population with equal chance of being selected.
The sample selected for this population involve multiple case studies draw from large number of case studies available. Therefore, quota-sampling approach is used in this dissertation, which certain case studies are selected to study from selected group of case studies available. The data collected and analysed does not include any personal information of any member involve in case study.(Connaway and Powell, 2010)
The distinctive advantage case studies have over the other research strategy is that ‘why’ and ‘how’ questions can be answered from the current phenomena. Moreover, researcher does not have any control over the events and gives an opportunity to explain the outcome of certain events as well as it is useful to draw the results from those situations. The case studies on ‘concurrent delays along the critical path’ as well as ‘prolongation claim judgements’ offer opportunity to analyse social setting based on actual data.
In addition, case study helps to collect and analyse the data from different sources and mix of research method to explore the outcome and generalise the scenario. Therefore, conclusion and finding based on case studies are likely to be more compelling and results are more likely to validate. Case study is useful to generalise the finding of larger population. (Yin, 2009)
Therefore, setting a boundary to generalise phenomena there are multiple case studies designs are based. There is a single-case (holistic or embedded) design and multiple case studies (holistic or embedded) design is available. Therefore, it is important to understand that holistic design is based on studying single unit whereas the mulch analysis involves the analyses in the multi-scenario. The method used in this study involves multi-case studies approach with embedded approach. The multiple case studies will be used to analyse the data and develop the result from various case studies. (Blatter and Haverland, 2012)
Rich picture soft methodology provides focus to understand different aspects of the situation. Rich picture is useful to define and understand a complicated situation through the depiction of connections, influences and relationships and subjective element and characteristic and prejudices of human nature. Moreover, rich picture documents are collected from different high-quality publications through an analytical approach.
The purpose of using rich picture is that symbol and graphical representation give meaning to them. The emphasis is given how critical path is used to analyse and study in order to determine the concurrent delay. The data analysis of qualitative data is conducted by using a systematic approach. This approach is best to define structured guidelines as well as development of final recommendations. (Kumar, 2007)
Document exist independent of researcher actions and give information about the phenomena that is being investigated. The case study highlights the specific action and not produces for specific study. The fundamental benefit achieves from case studies that information from difference cases can be combined. The data collected and examined cannot be distorted by the action of researcher and respondent. It is useful to study the past, cost effective, non-reactive as well as unbiased information presentation.(Potts and Ankrah, 2014)
Triangulation is a useful strategy to develop, strengthen, and increase confidence in finding and results of the research. Moreover, triangulation reduce the methodology and personal basis as well as it useful technique to generalize the results. In case of triangulation, data collected from different sources are analysed and generalized which makes it more dependable and reliable. The triangulation involves the methodology, researcher, as well as data triangulation.
In this dissertation, triangulation is achieved through collecting data from multiple case studies, which has increase the data reliability as well as generalization of the data. The finding and results of dissertation have developed confidence and increase reliability because of triangulation. (Hair et al., 2011)
In this chapter, research methodology used in this dissertation was highlighted. Moreover, theoretical as well as practical approach required to achieve the objectives of the dissertation as discussed. Nevertheless, the use of a phenomenological approach along with case study research method has enabled to explore the data available on concurrent delays along the critical and how it is used to estimate and manage the prolongation claim.
Data is obtained through case studies and document analysis, which has provided strong theory to examine the different scenarios. The four case studies selected in order to achieve the objectives of this dissertation and provided recommendation to manage future prolongation claims based on concurrent delays.
To analyse how, concurrent delay are examined along the critical path by contractor
According to Popescu, 1995, p 188, there are several causes of delay depend upon the situation. In the case of ‘Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd’, the reason for the delay was weather and contractor was unable to supply the labour. The concurrent delay was resulted from two parallel events, one was relevant, and the other wasirrelevant. The critical delay was determined based on the literal approach as well as the effect of delay was established.
Therefore, the finding of this case has become relevant when one of the two concurrent events affect the outcome or completion of the project. Therefore, proof of burden and effect of the delay principle has highlighted the effect of concurrent delay. The next case, Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd’, Employer and contractor blame each other for delay as well as late completion of time. The delay was analysed in this approach through extraction of time methodology and causes of delay was determined.
In this, there was parallel incurred but there was float present when parallel event incurred. Therefore, contractor determines the concurrent delay based on extraction of time but fails to imply the effect of delay. That is why, it is important to examine the critical path but it must analyse in the light of the principle available. There were a concurrent delay and both employers and contractor blame each for the delay. Rather following the principles to avoid such events, both employer and contractor examined the delay on the critical path but fail to apply the legal prevention principle and unable to analyse the cause of delay. Despite of the fact that delay incurred was concurrent but there was 6-week float in the activities.
The case of City Inn v. Shepherd Construction, employer delays the event because of the changes of the designer. There were a total of 9 weeks delays. The critical path was examined, based on Built vs. plan methodology. However, failure to consider the effect of delay, frequency, and duration of the event in examination concurrent itself and ignoring another factor may not be evident enough. The plan vs. actual schedule delay may entitle liquidated damages. The analysis of concurrent delay without applying the legal principle is not sufficient to evident the damages.
Despite of the delay, city Inn was unable to present the effect of the delay. Therefore, causes of delay must be established in order to claim the damages. The last case of ‘Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd’, there were number of concurrent delays event and delay was analysed using the planned vs. built approach. The extraction of time was used to analyse the events.
However, contractor did provide notice for EOT in a timely manner and failure to comply with a time issue contractor later fail to claim the time extension and therefore contractor lose the claim. The point made by Popescu 1995, the multifactor analysis as well as effect of delay should be studied in order to effectively carried out concurrent delay analysis along the critical path was ignored.
To study how concurrent delay impacts upon estimation of prolongation claims
According to Gibson, 2008, p 132, contractors try to determine the prolongations claims in number of ways, which involve either logic or without testing the law. The number of claims made because of budgeted completion time against the actual completion time associated with the project. Nevertheless, this vague estimation is not acceptable in law and reasonable evidence must be provided in order to ascertain the situation.
The relationship of concurrent delay and prolongation claims in of case of Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd, the concurrent delay based on literal approach and estimation of claim based on effect of delay. The judge statement, the intention of employer is an important consideration in order to determine the claim“
It is agreed that if there are two concurrent causes of delay, one of which is a relevant event and the other is not then the contractor is entitled to an extension of time for the period of delay caused by the relevant event notwithstanding the concurrent effect of the other event.” Therefore, in this concurrent delay has managed to claim for EOT.
Moreover, contractor cannot claim for expense and loss associated with concurrent delay. Therefore, as per literature review this arrangement agreewith the legal provision. The case of Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd, contractor was awarded EOT based on concurrent delay. However, contract was not award damages as judge believe that there was a float in the activities.
The prolongation claim City Inn v. Shepherd Construction was award EOT by the employer. However, the decision award in the case stated that the procedural obligation should not consider as breach of contract. At last but not the least, the case of Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd, The prolongation claim made was rejected because of the contractor failure to adherence to policies and procedures.
Therefore, despite the concurrent delay, the contractor fails to raise the prolongation claim. Then, the analysis of case studies proves the point made by Gibson 2008 that vague results are not acceptable by the court. Therefore, contractor should provide evident and follow the guidelines for a successful claim.
To examine how law deals with concurrent delay
According to Davison, 2008, p 147, to ascertain concurrent delays, there are legal principles available, which help the employer and contractor to assert the situation. Moreover, in case of Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd, the legal principle was applied in order to ascertain the claim. Therefore, contractor was award the EOT. However, the prevention principle and effect of delay was natural and therefore no damages were awarded.
In the light of the case, it is evident that if a contract highlight there is a limited time available for contractor to complete the project and owner actions have resulted in a delay along the critical path. The next case involves Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd, in this case, contractor was also awarded the EOT, but there were no damages awarded. Moreover, according to Davison 2008, contract should provide the proof of burden and prevention principle in order to avoid the loss.
The City Inn v. Shepherd Construction highlight to follow the procedural changes, there was a delay on the part of the supplier. However, ascertain the delay through burden of proof in which victim party needs to show the damages resulted because of such delay. Therefore, claimant needs to show that damages have incurred due to the complainant and his action does not result in breach of contract.
Therefore, the verdict in judgement proves that the delay was because of procedural changes and there were no liquidated damages. Therefore, legal guideline provides by Gibson 2008, for effective management of the prolongation claim has ignored by the contractor, which has resulted in a fail claim.
In the case of ‘Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd’, the contractor fails to notify the employer for EOT and damages. According to Potts and Ankrah, 2014, p 274, the next factor in order to ascertain the prolongation claims is that the party cannot claim damages because of its owner error. The legal conceptual that validate the recovery of actual damages it does not hold validate in case liquidated relief damages for delay.
Therefore, if contractor delay the project because of owner but contractor compensate for the delay in term additional time provision as well as relieved for liquidated damages. In such cases, damages only provided for time-related damages. Therefore, in the light of the judgement, there was a failure on the part of the contractor. Concurrent delay and legal principles and its possible implication in prolongation estimation, the standard situation is that if the owner is responsible for the delay then contractor can claim damages (EOT). Moreover, the legal principle available to explain the delay involve prevention principle, proof of burden as well as contractor cannot get benefit from own mistake remain the fundamental in assessment of claims.
To focus the situation in which contractor is entitled to the extension of time or cost because of concurrent event
Therefore, to ascertain the position of the contractor in four cases, it is required that the contractor should examine the critical path in effective manner. In the case of ‘Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd’, there were concurrent delays and they were identifying using the literal approach and highlighting the effect of delay. Moreover, contractor was to claim for the EOT by the employer. Nevertheless, the issue related to liquated damages remain uncertain.
Contractor deploys the resources to accelerate the speed of the project. However, the judgement of case highlight legal principle of prevention has resulted in no liquated damages. Therefore, contractor position to claim the expenses was questionable as the damages and additional resources were not awarded to the contractor.
The case of ‘Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd‘, contractor was again successful in claiming the EOT but according to judgement, because of float in the activities, contractor was unable to claim the expenses and loss. Therefore, despite of the fault of the contractor, there was not loss and expenses awarded to the contractor. The decision of law remains a question on the claim for the cost.
Next case of City Inn v. Shepherd Construction’, makes the judgement and law even more questionable. The concurrent delay was along the concurrent path and there was a delay in project by six week. The contractor was awarded EOT to complete the project. However, despite the loss there were no liquated damages awarded to city inn and the case has even made the cost and expense damage more complicated. The concurrent delay was correctly identified along with legal aspect was followed.
However, the procedural changes are classified under the prevention principle. The cases of Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd’, contractor was not aware of any time-related cost because contractor was failed to make in timely manner. Thereare legal principles available in law, which are prevention, principle, proof of burden, and person cannot claim from its own negligence.
The analyses of case studies have provided the answer to the research questions. The first objective of the research was to determine how concurrent delays are examined along the critical path. From the cases, it has been evident that the contractor used built vs. plan approach to examining delay along the critical path. The lack of using the proper methodology has resulted in claim failure.
For example, in case of Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd’, there was a float in the activities and contractor was award extension of time but there was liquidated damages payment. Therefore, contractor not assessing the concurrent delay in the appropriate fashion has resulted in legal cost but unable to claim liquated damages.
In the case of Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd’, contractor was unable to claim the liquidated damages because the lack of evident on effect of delay on completion of the project.
The case associated with City Inn v. Shepherd Construction involve contractor award of EOT from the employer but despite the employer fault, there were no liquidated damages paid. One possible reason that the contractor did not highlight the effect of delay on overall completion of the project has result in denied of claim.
In the case of Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd’, contractor was not awarded the liquated damages because the period enclosed in the contract to rise was elapsed. The possible remedy for such situation is examining the concurrent delay in timely manner. The duration and frequency of concurrent delay examination could help to resolve such issue in the future.
Therefore, in relation to objective one, ‘concurrent delay is examined along the critical path by contractor’. It can conclude that contractor fails to properly examine the concurrent delay on the critical path has resulted in poor presentation of facts.
The relationship of concurrent delays and prolongation claims could not emphasize less as poorly presented case always resulted in failure of the claim. For example, in case of ‘Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd’, contractor fails to estimate the effect of concurrent delay along the critical in terms of completion of the project. Therefore, no liquated damages were award to the contractor.
Furthermore, in the case of Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd’, there was a float in activities which was mentioned in the decision. Based on float in the activities contractor was not awarded the prolongation claims. Therefore, proper examining of concurrent on the critical path is fundamental to the success of claims. Similarly, contractor was successful to highlight the concurrent delay on the critical path in case of City Inn v. Shepherd Construction case.
Nevertheless, contractor fail to show the effect of concurrent delay on the critical path in terms of completion of the project has result a failure in terms of liquated damages.
Frequency and duration in terms of concurrent delay is another important factor in terms of failure of the claim. For example, despite of the identification of concurrent delay, Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd was unable to claim the damages as judgement given explains that contractor fails to fail the claim in timely manner. Therefore, the analyses of case studies have highlighted the importance of examining of concurrent delay on crucial path.
The objective of the two of this dissertation, ‘concurrent delay impacts upon estimation of prolongation claims’ has highlighted from case studies. If the contractor fails to determine the effect properly then it is least likely that claim will be successful. The effect of concurrent delay on the critical path is basic to make a claim for liquated damages as well as future success of the claim.
The third objective examines how law deals with concurrent delay, which has given results in favour of the employer. The legal principles attached to study the concurrent delays, which are prevention principle; proof of burden and no claim for negligence has given favour to employer. In case of Henry Boot Construction (UK) v Malmaison Hotel (Manchester) Ltd’, acceleration of project through additional resources was classifieds as prevention principle and there were no liquated damages were award to the contractor.
The EOT of time was granted to the contractor butliquidated damages were not granted. Similarly, in the case of Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd’, there were damages award to contractor stating that there was float in the activities and that is why contractor is not entitled to damages.
Nevertheless, extension of time (EOT) is granted but no liquated damages were reimbursed, in either of case studied. Moreover, if we look at the case of City Inn v. Shepherd Construction’, again judgment proves that prevention principle are applicable and extension of time was award. There were no liquidated damages were awarded because of lack of burden of proof by the contractor. However, ascertain the delay through burden of proof in which victim party needs to show the damages resulted because of such delay. Therefore, claimant needs to show that damages have incurred due to the complainant and his action does not result in breach of contract.
Therefore, the verdict in judgement proves that the delay was because of procedural changes and there were no liquidated damages. Similarly, the legal principle of no claim from contractor’s own negligence is applicable in case of Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd’, as judgement states that contractor fails to make timely claim to loss. Consequently, there were no liquated damages awards.
The fourth objective of research that is ‘situation in which contractor is entitled to the extension of time or cost because of concurrent event’ has shown two possible results. The first scenario is based on the claim contractor has usually time-related damages. However, the cost and expenses loss has not paid to the contractor by law.
The decision award either apply the legal principle to access the concurrent delay claims or failure of proper assessment the effect of concurrent has denied the liquated claims. It is evident from all case studies either legal principle or failure to assess the effect of concurrent delay along the critical path in terms of project completion has resulted in denial claims. Therefore, the result for our fourth objective shows that contractor position is vague in terms of entitlement for cost.
This chapter is concerned with framework developed based on case studies to examine the concurrent delay along critical and its role in prolongation claims. This framework bases on the analysis, results from the case study, and tries to present a framework, which is useful for contractor to present a successful claim. Moreover, this framework is applied to four case studies to examine the scenario whether it is useful to present a successful claim.
The CPM analysis plays an important role in order to establish the delay along the project. Moreover, if there is slack in the activities it is unlikely to claim will be successful along with lack of examining the case in the light legal aspects in order to rise a successful claim. The framework provide the guideline to analyse and examine the concurrent delay, potential legal complication associated with concurrent delays management as well as role of concurrent delays and prolongation claim. Reason and sensible solution to the distribution of damages in concurrent delay is important. The current practice uncovers that courts can embrace the relative carelessness for understanding the simultaneous deferrals.
Framework for concurrent delay and prolongation claim
In the light of framework, concurrent delay was the result of two events one was on employer part and other was because of weather. The company has successfully determined the causes and effect of delay. The examination of concurrent delay and its duration and frequency was examined through CPM. However, in this case, company fails to comply with legal principle applicable which ere prevention principle. Court decision stated that contractor fails to comply with the prevention as the event was natural and reasonable efforts should have made to avoid the delay.
Moreover, the extension of time was awarded in the case because of the natural event. There were concurrent delays, identifying using the literal approach, and highlighting the effect of delay. Moreover, contractor was to claim for the EOT by the employer. Nevertheless, the issue related to liquated damages remain uncertain. Therefore, the contractor fails to consider the legal principle applicable, which result in addition legal cost and fail claim.
There was concurrent delay and both parties ascertain prolongation claim. The supplier did not properly examine the claim, as court stated in the decision that there is slack exists in the activities. The contractor was failed to comply with proof or burden as well as improper CPM analysis has failed the contractor claim.
According to judgement, the supplier fail to comply with prevention principle, unable to provide proof burden as well as poor examination of critical has resulted in weak claim and failure of claim. There was a float in activities, which was in the decision. Based on float in the activities contractor was not awarded the prolongation claims.
Similarly, in the case of Ascon Contracting Ltd vs. MacAlpine Construction Isle of Man Ltd, there were damages awarded to the contractor stating that there was float in the activities and that is why, contractor is not entitled to the damages.
There was concurrent delay in the case because of change of the designer by the employer. The supplier examined the concurrent delay based on the logical guesswork rather relying proper CPM analysis. The critical path was examined based on Built vs. plan methodology. However, failure to consider the effect of delay, frequency, and duration of the event in examination concurrent itself and ignoring another factor may not evident.
Moreover, failure to access the legal principle of prevention as well as judgement statement explains that following the legal procedure does not constitute the breach of contract. In addition, ascertain the delay through burden of proof in which victim party needs to show the damages resulted because of such delay. Therefore, fail to comply with law does result failure claim. Moreover, the claim present base on CPM analysis was not reliable because of the error in the programming.
In case of Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd, court judgement stated that employer could not get benefit from its fault. The concurrent delay as analysed in the event through planned vs. built approach. Therefore, lack of frequent and continuous examining of the critical path result in late claim of prolongation claims.
Therefore, contractor was failed to follow the legal principle associated with contracts. Therefore, judgement given by court explains that contractor cannot get benefit from his loss. The prolongation claim made was rejected because of the contractor failure to adherence to policies and procedures. The legal conceptual that validate the recovery of actual damages in case does not hold validate in case liquidated relief damages for delay.
In summarising the framework application, we can conclude that claim process is complicated because of number of factors attached to them. The starting point involves careful project scheduling and activity manage duration and frequency of the concurrent. The identification of slack as well as examining the process, the event of critical delay can see as number of cases.
Moreover, legal principle should be examined to ensure the case have strong base. The three legal principles, which are prevention, proof of burden as well as own fault should be studied, apply to situation to achieve liquated damages. At last, not least, effect of delays as well as causes of delay should be presented along other facts so that there are strong evidence that delay has resulted overall late completion of project.
The practice guidelines enclosed in this paper are helpful for contractor to deal with concurrent delays. These guidelines are based on findings from the analysis of case studies. The examination of concurrent delays along the critical path have fundamental importance as it is built basis for the claim, estimating prolongation costs as well as dealing with legal complications. The current debate about the recent court decisions for concurrent delays along with finding shows that it is difficult for a contractor to claim cost and expenses. The guidelines for contractor are:
If the contractor fails to examine the concurrent then it built weak claim and resulting unlikely that claim will be successful. The claimants have enabled to provide the effect of concurrent delay. Moreover, how it has delayed the overall completion of the project.
There is huge future research opportunities exist in the field of concurrent delay. The fundamental area is why contractor is usually unsuccessful for liquidated damages. Another opportunity is to present a ‘claim model’ for the contractor that provides guidelines for prolongation claim. There is a lack of clear legal explanation on concurrent delay as well as there are no clear legal guidelines available for cost and expense damages.
The interesting future topic involves ‘Contractor motivation and success of Concurrent claims’ or ‘Developing a framework for contractor to claim prolongation’. Moreover, studying the ‘contractor perspective of the prolongation claim’ represent an interesting area to explore. ‘A framework for assessment of concurrent delays and managing legal complication’ can highlight a new finding in the field of concurrent delay.
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