For a Contractor to receive an extension of time, many  contracts require that he must  demonstrate that he has been delayed such that he could  not finish by the Date for  Completion. Brian Eagles  argues that the level of proof  required is the same as in all  civil-cases; that is, on the  balance of probability, or to  put it another way, the  demonstration must be at the very minimum 51%  convincing.

The SCL Protocol recognises four methods of analysis by which a Contractor can demonstrate an entitlement to an extension of time: the Planned versus As-Built; the Impacted As-Plan; the Collapsed As-Built; and the Time Impact Analysis. The Protocol also sets out the level of information required for each method of analysis. The Protocol also recommends the most representative in terms of demonstrating  entitlement, based on the type of  information that is available.

The difficulty occurs when these  theoretical analyses meet reality.  What I mean by this is that there are  few contracts that follow the original  planned sequence of work throughout  the entire building process. Perhaps  this is because I deal mostly with  projects that are in delay, but some  degree of rescheduling is  commonplace in the construction  industry. The SCL Protocol offers no  guidance on how any changes to the  planned programme should be made, whether as the result of a supplemental agreement, a Contractor’s mitigation or an acceleration. This is a limitation of the Protocol since three, and possibly all, of the four specified methods make use of the planned programme in one form or another.

Recently, I undertook a retrospective Impacted As-Planned analysis for a client. As so often happens, the programme had been re-sequenced during the project so that the analysis using the original programme was unrepresentative of the whole building cycle. Consequently, my analysis was repeated from the date of the programme change and the remaining period of the contract was evaluated on the basis of the revised programme. I called this approach the Updated As-Planned Impacted method. I find this approach an extremely effective one for analysing delayas we move through the building process.

However, the engineer found that, because the Impacted As-Planned analysis had not been carried out precisely as set out in the SCL Protocol for the whole of the construction period, the analysis was void and was rejected in its entirety. The complaint was that the original programme had not been used for the entire analysis and I had deviated from the SCL Protocol. In my view, a reasonable analysis which adopted but adapted the methods described in the SCL Protocol had been unreasonably rejected.

It appears that the SCL Protocol had closed the mind of the engineer to any demonstration of cause and effect other than those described in it. The engineer had not taken account of the legal principle that the Contractor needs to demonstrate that, on the balance of probability, it was prevented from completing by the Date for Completion by delays that constitute Relevant Events under the contract. If it was able to do so, a Contractor is entitled to receive an Extension of Time. In effect the burden of proof had, in the mind of the engineer, been replaced by a failure to follow the guidelines of the Protocol.

It may be that this was just one rogue decision but it calls into focus the purpose of the SCL Protocol as a guidance document, not as a manual on the allowable methods of delay analysis. In the UK, we presently have a system of justice that is based upon case law, built up over centuries. To suggest, therefore, that the SCL Protocol somehow overrides and codifies English law, as is implied from this engineer’s decision, is wrong in my view.

In my opinion, the SCL Protocol has been elevated to a level of importance beyond which it has justification. Some of this prominence originates from the word ‘protocol’ in the title. The common usage of the word ‘protocol’ is an action plan to be followed but in the case of delay analysis, the protocol only addresses examples of the methods available, and whilst this is useful as a guide, it does not represent all methods of demonstrating cause and effect and should be employed accordingly.

Since this decision, I have been involved with several cases where a variety of methods of analysis have been utilised, both from the SCL Protocol and elsewhere. The results achieved have been mixed but all have been reasonable decisions in the light of the evidence presented. As I say, perhaps my earlier case was only one rogue decision but when I include updated programmes in my analyses, the reasons for deviating from the purity of the analysis set out in the SCL Protocol are now clearly explained in my reports.

Brian Eagles is based at Trett Consulting’s Manchester Office.