Article in Building magazine, 11 January 2002

GETTING IN EARLY
by Tony Bingham

The Society of Construction Law has brought out a best practice guide for those gearing up for a dispute about delay. Do yourself a favour and download it now

Now then, here is an interesting contribution. It is described as "material necessary for parties to avoid unnecessary disputes". And, given our infinite capacity for differences of opinion, any straw in the wind is welcome.

The "unnecessary disputes" concern "time". That gets us into extensions of time, liquidated damages, concurrent delays and who owns "float". Then it gets us into disruption and global claims, and then, oh then, it gets into "collapsed as built", "but for …", "lag finish to finish", "start to start", "negative lag programmes". You understand that kind of jargon, of course, but some folk are flummoxed.

So, a group of sound people sat down under the umbrella of the Society of Construction Law and had a think. This group, led by top construction lawyer Jeremy Winter, of Baker & McKenzie, has produced a 70-page guidance note called A Protocol for Determining Extensions of Time and Compensation for Delay and Disruption (you can download the draft form free – go to www.eotprotocol.com). I reckon it will have a major effect on this sometimes difficult area of construction.

What is the protocol for? Well, you could include it as a contract document since it explains things such as float and ownership of concurrency. It would also help to explain the meaning of words and phrases to do with programming in the contract. More likely, though, the protocol will be used to beat the other chap over the head when he doesn't agree with your point of view.

That's not a throwaway remark; the truth is that the people who made up the drafting committee and the people who added bits here and there are a strong representation of the building dispute management business. All told, 50 people contributed. That's a lot of expertise to beat up the other bloke with. Mind you, I don't actually agree with all of it, as I'll explain in a moment.

Hurrah, though, for a start, for the protocol's dictionary. It is seriously good stuff. I honestly didn't know what "activity-on-the-node" was before the protocol enlightened me. At last, there is a definition of "constructive acceleration", "a hammock", "a Gantt chart", and more besides.

Hurrah, too, for switching the talk of "time" from disputes territory to the reality that delay and disruption are for ordinary management to sort out, just as much as delivering paving slabs. The protocol simply explains how a transparent and unified approach to programming through proper recording and identifying the consequences of delay and disruption, is everyday "managing". And if you don't know about "time-input" analysis, here is your chance to learn.

As to the programme itself, the protocol inevitably teaches grandmother to suck eggs. But damn it, there may be some folks out there who still don't use the most basic software for critical path networks. And, come on, it doesn't need a protocol to coax you to use software to predict the effect of change. I mean, this is everyday stuff – I think. And here it gives a code for combining the programme with the method statement. People in an adjudication will fall about laughing if you haven't submitted draft programmes at the right time, or haven't adopted a mechanism for archiving the weekly updates.

As for extensions of time, the guidance at last explains that these are nothing to do with loss and expense claims, or rather, they're best thought of separately. It states, accurately, that: "Where a contractor delay to completion occurs concurrently with employer delay to completion, the contractor's concurrent delay should not reduce any extension of time due."

And as for money, it even explains that the awarding of extensions of time for concurrent delay does not automatically run up a prolongation claim.

There is good stuff on head office overheads, claiming of quite separate stuff called profit. I like the note about claim preparation costs, which I hope some adjudicators will think about.

Where I disagree with the 50 experts, is on their throwaway approach to a global claim. The protocol condemns these contractor claims. They want each bit of disruption to be linked to resultant loss.

Tosh. Come on, chaps, get back on site. Global claims deserve much more detailed analysis of the recent cases. It is unwise to say they don't stack up. They do … sometimes.

The protocol is aiming to help provide common ground. Get it, and contribute to it – you've got until 31 January. Tell the Society of Construction Law where you think it's adrift.