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Category Archives: Scheduling

Project planning and scheduling posts

The evolution of the DCMA 14 Point Schedule Assessment

The DCMA 14-Point schedule assessment process was part of a suite of systems developed by the Defense Contract Management Agency (DCMA) starting in 2005. Its purpose was to standardize the assessment by DCMA staff of contractor developed Integrated Master Schedules.  

The DCMA is an agency of the United States federal government reporting to the Under Secretary of Defense for Acquisition and Sustainment, responsible for administering contracts for the Department of Defense (DoD), and other authorized federal agencies. It was created in February 1990 as the Defense Contract Management Command (DCMC) within the Defense Logistics Agency (DLA), then in March 2000, the DCMC was renamed as the Defense Contract Management Agency (DCMA) and made an independent agency.

The DCMA works directly with defense suppliers and contractors to oversee their time, cost, and technical performance, by monitoring the contractors’ performance and management systems to ensure that cost, product performance, and delivery schedules comply with the terms and conditions of the contracts.

The DOD had published specifications for an Integrated Master Schedule since 1991. In March 2005, the USA Under Secretary of Defense for Acquisition and Technology (USDA(AT&L)) issued a memo mandating the use of an Integrated Master Schedule (IMS) for contracts greater than $20 million and requiring the DCMA to establish guidelines and procedures to monitor and evaluate these schedules.

In response, the DCMA developed their 14-Point Assessment Checks as a protocol to be used for CPM schedule reviews made by their staff. The initial documentation describing this protocol appears to have consisted of an internal training course provided by the DCMA. The training was deployed as an on-line course in late 2007 and updated and re-issued on 21st November 2009 (none of these training materials appear to be available – there may have been other changes).

The final and current update to the 14 Point Assessment was included in Section 4 of the Earned Value Management System (EVMS) Program Analysis Pamphlet (PAP) DCMA-EA PAM 200.1 from October 2012.  This PAP appears to still be current as at the start of 2024 with DCMA training available to assessors. This version is the basis of our guide: DCMA 14-Point Assessment Metrics.

However, the usefulness of this approach to assessing schedule quality is questionable!

The objectives of the DCMA 14 Point assessment is frequently misunderstood, this was discussed in DCMA 14 Point Schedule Assessment – Updated.

The validity of some of the ‘checks’ are questionable, they do not conform to standards set by various scheduling authorities.

And, the relevance of the DCMA 14-Points is also questionable. The publication of the U.S. Government Accountability Office (GAO) Schedule Assessment Guide in December 2015 appears to provide a more realistic basis for assessment. 

Based on the above, one has to ask if this old baseline for assessing schedule quality still relevant? For more on schedule quality assessment see: https://mosaicprojects.com.au/PMKI-SCH-020.php#Overview

Using WPM to augment CPM predictions

We all know (or should know) that when a project is running late, the predicted completion date calculated by the ‘critical path method’ (CPM) at an update tends to be optimistic, and this bias remains true for predictions based on simple time analysis as well as schedule calculations made using resource leveling.

There are two primary reasons for this:

  1. The assumption in CPM is that all future work will occur exactly as planned regardless of performance to date. The planned durations of future activities do not change.
  2. The burning of float has no effect of the calculated completion date until after the float is 100% consumed and the activity become critical.

For more on this issue see Why Critical Path Scheduling is Wildly Optimistic!

Having an optimistic schedule for the motivation of resources to perform in not all bad – the updated CPM schedule shows the minimum level of performance needed to stop the situation deteriorating. The problem is more senior managers also need a reliable prediction of when the project can realistically be expected to finish and CPM cannot provide this. A more realistic / pessimistic view is obtained by apply the principles of Work Performance Management (WPM) to a CPM schedule, using ‘activity days’ taken from the CPM schedule as the metric.

Our latest article, WPM Solves CPM Optimism, uses a simple CPM schedule to demonstrate the differences in the calculated project completion dates between CPM and WPM. The value of WPM is stripping away the optimism bias inherent in CPM scheduling (particularly early in the project), thereby providing management with a clear indication of where the project is likely to finish if work continues at the current levels of productivity. These predictions are not a statement of fact, change the productivity and you change the outcome! A similar approach can be used to assess projected completion dates based on a simple manual bar chart.

To download the article, and see more on augmenting CPM with WPM to enhance controls information: https://mosaicprojects.com.au/PMKI-SCH-041.php#WPM-CPM

Critical Path Characteristics and Definitions

I’m wondering what is causing the confusion appearing in so many posts lately concerning the definition of the critical path. Is it:

  1. A lack of knowledge?
  2. People being out of date and using superseded definitions?
  3. People not understanding the difference between a characteristic and a definition?

As most people know (or should know) the definition used by the PMI Practice Standard for Scheduling (Third Edition), the International Standards Organization (ISO) and most other reputable authorities in their standards is similar to:

Critical Path: sequence of activities that determine the earliest possible completion date for the project or phase. 

For more on the development of this definition see: Defining the Critical Path.


To deal with the questions above, in reverse order:

The difference between a characteristic and a definition.

The definition of a phrase or concept (the ‘critical path’ is both) should be a short, concise, statement that is always correct. A characteristic is something that indicates the concept may be present.

Everyone of significance has always agreed the critical path is the sequence of activities determining the earliest possible completion of the project (or if the project has staged completions, a stage or phase).  This is the basis of the current valid definitions. As a direct consequence of this in a properly constructed CPM schedule, the float on the critical path is likely to be lower than on other paths but not always. Low float or zero float is a characteristic that is often seen on a critical path, but this is a consequence of its defining feature, it being longer than other paths. 

Superseded definitions.

In the 1960s and 70s, most CPM schedules were hand drawn and calculated using a day number calendar. This meant there was only one calendar and constraints were uncommon.  When there are no constraints and only a single calendar in use, the critical path has zero float! From the 1980s on, most CPM schedules have been developed using various software tool, all of which offer the user the option to impose date constraints and use multiple calendars (mainframe scheduling tools generally had these features from the 1960s on).

Using more than one calendar can cause different float values to occur within a single chain of activities, this is discussed in Calendars and the Critical Path.  

Date constraints can create positive or negative float (usually negative) depending on the imposed date compared to the calculated date and the type of constraint, this is discussed in Negative Float and the Critical Path.

Consequently for at least the last 40 years, the definition of a critical path cannot be based on float – float changes depending on other factors.

Knowledge?

One of the problems with frequently repeated fallacies is when people do a reference search, they find a viable answer, and then use that information assuming the information is correct. This is the way we learn, and is common across all disciplines.

Academic papers are built based on references, and despite peer review process, can reference false information and continue to spread the falsehood. One classic example of this is the number of books and papers that still claim Henry Gantt developed the bar chart despite the fact bar charts were in use 100 year before Gantt published his books (which make no claim to him having invented the concept), for more on this see: https://mosaicprojects.com.au/PMKI-ZSY-020.php#Barchart. Another common falsehood is Henry Gantt ‘invented project management’ – his work was focused on improving factory production processes: https://mosaicprojects.com.au/PMKI-ZSY-025.php#Overview

Academics are trained researchers, and still make mistakes; the rest of us have a bigger challenge! The spread of un-reviewed publications via the internet in the last 20+ years started the problem. Now Generative AI (Gen AI) and large language models (LLM) are exacerbating the problem. For most of us it is getting harder and harder to understand where the information being presented a person, or in an article originated. Gen AI is built to translate data into language, it has no ability to determine if the data it has found is from a credible source or not. And as more and more text is produced by the various Gen AI tools the more often wrong information will be repeated making it more likely the wrong information will be found and repeated again, and again.   

I’m not sure of the solution to this challenge Gen AI is clearly not skilled in project management practice (even the PMI AI tool), for more discussion on this important topic see: https://mosaicprojects.com.au/PMKI-SCH-033.php#AI-Discussion  

Reference

One reference that is reliable is Mosaic’s Easy CPM.  It incorporates most of what we know, focused on  developing and using an effective schedule in any software tool. The book is designed to provide practical guidance to people involved in developing, or using, schedules based on the Critical Path Method (CPM), and act as a reference and practice guide to enhance the effectiveness of their scheduling practice.

For more see: https://mosaicprojects.com.au/shop-easy-cpm.php 

Project Controls Dilemma

The purpose of project controls has been defined as: Project controls are the data gathering, management and analytical processes used to predict, understand and constructively influence the time and cost outcomes of a project or program through the communication of information in formats that assist effective governance and management decision making[1].

The question posed in this short post is how can we fulfil this objective when different processes calculate completely different completion dates for the same set of project data?  The options for the calculated project delay for the simple project outlined above are:

–  CPM using progress override calculates a 3 week delay.

–  CPM using retained logic calculates a 4 week delay.

–  WPM and ES calculate a 16 week (4 month) delay.

Which option is correct or are all of the options correct and project managers are free to choose the delay they prefer to report?  Full details of the various options are included in Calculating Completion: https://mosaicprojects.com.au/PDF_Papers/P217_Calculating_Completion.pdf

My suggestion is a realistic prediction of completion needs more than a simple CPM update that assumes all future work will miraculously be completed as planned. WPM (Work Performance Management) has been developed to apply a similar approach to EVM, ES and ED, based on understanding the ratio between work performed and work planned and applying this factor to the future incomplete work to assess the likely completion date if nothing changes.

For more on WPM see: https://mosaicprojects.com.au/PMKI-SCH-041.php#WPM  


[1] See Project Controls – A Definition: https://mosaicprojects.com.au/WhitePapers/WP1093_Project_Controls.pdf

DCMA 14 Point Schedule Assessment – Updated

There seems to be a lot of misunderstanding around the intention and use of the DCMA 14 Point Schedule Assessment.  Following on from several discussions over the last month or so we have updated our White Paper: DCMA 14-Point Assessment Metrics and uploaded the last published version of the Metrics:  Earned Value Management System (EVMS) Program Analysis Pamphlet (PAP), DCMA-EA PAM 200.1, October 2012.

The EVMS-PAP is designed for use in performing an integrated baseline review of a major program using EVM, but EVM relies on a competent schedule and Section 4 of DCMA-EA PAM 200.1 defines the last published version of the DCMA 14 Point Schedule Metrics. As can be seen from the date of publication, the DCMA 14 Points are quite old, and they did change in the years before 2012 (for more on the evolution of the DCMA 14 Points see: The evolution of the DCMA 14 Point Schedule Assessment). This leads to two significant problems:

The first is many people misunderstand the objective of the assessment. The objective is stated explicitly in the document:

The DCMA 14 Point Schedule Metrics were developed to identify potential problem areas with a contractor’s IMS…… These metrics provide the analyst with a framework for asking educated questions and performing follow-up research. The identification of a “red” metric is not in and of itself synonymous with failure but rather an indicator or a catalyst to dig deeper in the analysis for understanding the reason for the situation. Consequently, correction of that metric is not necessarily required, but it should be understood.

Earlier versions talked about pass/fail, this concept has been dropped (and was never a good idea).

The second issue is implementation of the assessment. The implementation of the DCMA 14-Point Assessment in the various software tools is not certified by the DCMA or any other body and varies between the tools!  The biggest issue is around counting of the number of tasks to be considered. The 2012 version stated that the Total Tasks should exclude: Completed tasks, LOE tasks, Subprojects (called Summary tasks in MS Project), and Milestones (Zero Duration Tasks). This differs from the 2009 update, and the 2009 update changed from earlier versions.

There is an established correlation between a competently prepared schedule and project success – successful projects tend to have an effective controls system and a ‘good’ schedule, but the key measure of a good schedule is it is useful and is used. The purpose of the DCMA checks is to identify issues that need to be understood.

For more on schedule quality see: https://mosaicprojects.com.au/PMKI-SCH-020.php#Overview

Assessing Delay – the SCL Options.

Our latest paper Assessing Delay – the SCL Options. Has been published in the April edition of PM World Journal.

This paper reviews The Society of Construction Law, Delay and Disruption Protocol (2nd edition), and contrasts the SCL Protocol with AACE® International Recommended Practice No. 29R-03 Forensic Schedule Analysis (2011 Ed.)

In most respects, the two documents take a very similar approach to assessing delay and disruption on construction projects. The fundamental difference is in the focus of the documents, the objective SCL Protocol is to provide useful guidance on some of the common delay and disruption issues that arise on construction projects, with a view to minimizing disputes, whereas AACEi 29R-03 focuses on forensically analyzing delays after the dispute has arisen.

To download more papers focused on delay, disruption and acceleration see: https://mosaicprojects.com.au/PMKI-ITC-020.php#ADD

Costain vs Haswell Revisited

One of the ways the law tries to maintain consistency across multiple court cases in literally hundreds of court rooms is by following the same decision-making process used in previous cases to decide an outcome where similar matters are in dispute. This has the advantage of providing a degree of certainty, or at least consistency in the way laws and contracts are interpreted. But can make the law relatively slow to change when business practice changes. However, there are times when the Judges identify problems well before the practitioners! Costain Ltd v Charles Haswell & Partners Ltd [2009] EWHC B25 (TCC) (24 September 2009) is one example. This case related to the construction of the eleven separate structures, that constitute the Lostock and Rivington Water Treatment Works in Lancashire, UK.

As part of this court case, the design and construction contractor, Costain Limited, sought costs from its consulting civil engineer, Charles Haswell & Partners Ltd (Haswell), for the cost of delays caused by incorrect geotechnical advice provided by Haswell. Costain alleged that Haswell’s original design for pre-foundation ground treatment works failed to achieve the specified design criteria for two of the eleven project structures. This resulted in the need for unplanned piling works to support the two structures, which Costain alleged caused a critical delay to the project. As a consequence, Costain was seeking to recover the costs of the delay (prolongation costs) from Haswell.

The quantum experts in the case agreed on two tests for establishing Costain’s entitlement to prolongation costs:

  • First, whether the assumed delay to completion caused by the remedial piling had crystallised into the same actual delay to the completion of the project some sixteen months later, and
  • Second, whether all of the project’s activities were delayed by the piling to just two of the eleven structures.

The parties’ programming experts agreed on a common methodology for assessing the delay, which the judgment refers to as a ‘time impact analysis’ or ‘windows slice analysis’. The method described in the judgement appears the same as the Time Impact Analysis defined in the SCL Delay and Disruption Protocol and AACEi MIP 3.7 (for more detail on this see: https://mosaicprojects.com.au/PDF_Papers/P216_Assessing_Delay_The_SCL_Options.pdf).

There were some points of disagreement between the experts but ultimately, the Court found that the remedial piling on two structures was critical to the project at the time considered in the ‘windows analysis’  noting the experts have agreed that the delays to the RGF and IW were critical delays since those buildings were on the critical path of the project at the relevant time.  Ordinarily therefore one would expect, other things being equal, that the project completion date would be pushed out at the end of the job by the same or a similar period to the period of delay to those buildings.  However, as experience shows on construction sites, many supervening events can take place which will falsify such an assumed result.  For example, the Contractor may rearrange his programme so that other activities are accelerated or carried out in a different sequence thereby reducing the initial delays. [Clause 233]

The assumption underpinning the expert’s ‘window’ analysis showing that a critical delay had occurred and the entitlement to a delay was based on the premise that the work on the rest of the project would follow the logic as shown in the CPM network. The Court rejected this assumption because the assumed flow-on of the delay to the overall completion of the works was not demonstrated: ‘I find that it has not been shown by Costain that the critical delay caused to the project by the late provision of piled foundations to the RGF and IW buildings necessarily pushed out the contract completion date by that period or at all’. [Clause 200 (ii)]

The second test asked whether a delay to work on part of the project would cause all of the project’s activities to be prolonged. In considering this test, the Court rejected Costain’s assumption that the remedial piling to two of the structures on the project prolonged all eleven structures: ‘If the contractor establishes [a critical, excusable delay], he is entitled to an extension of time to the whole project including, of course all those activities which were not in fact delayed … But the contractor will not recover the general site overheads of carrying out all the activities on site as a matter of course unless he can establish that the delaying event to one activity in fact impacted on all the other site activities’. [Clause 183-184]

The Court also found no evidence has been called to establish that the delaying events in question in fact caused delay to any activities on site apart from the RGF and IW buildings.  That being so, it follows, in my judgment, that the prolongation claim advanced by Costain based on recovery of the whole of the site costs of the Lostock site, fails for want of proof’. [Clause 185]

Costain failed in its claim for time related prolongation costs and only recovered the additional costs of installing the piled foundations, because ‘In the absence of any analysis between all the operative delays from the start to the finish, which is absent in this case, in my judgment it is simply not possible for the Court to be satisfied on the balance of probabilities that the assumption upon which this part of Costain’s case depends, is correct’. [Clause 235]

Conclusion – Distributed Projects are Different!

The fundamental problem outlined above was caused by the distributed nature of the project work. The Critical Path Method (CPM) assumes there is one best way to accomplish the work of the project and this is described in the schedule. In distributed projects there are multiple different ways the work could be accomplished. Therefore, any delay analysis technique based on the assumption that the sequence of work shown in a CPM schedule is the only way to accomplish the work is unlikely to prove the delay.  A different approach is needed!

We are working on this challenge.

  • Scheduling Challenges in Agile & Distributed Projects defines the problem and classifies four different types of project from a CPM and controls perspective. Using this classification, the Lostock and Rivington Water Treatment Works was a ‘Class 4’ project where a CPM schedule was imposed, but is unlikely to prove effective. Distributed projects fall under Class3, where a detailed CPM schedule is not accepted as an effective controls approach – different processes are needed.

  • Predicting Completion in Agile & Distributed Projects (due for publication in the May edition of PMWJ) will define a process for measuring progress and predicting completion in Class 3 projects.

  • Assessing Delays in Agile & Distributed Projects (due for publication in the June edition of PMWJ) will define a process for reliably determining the effect of delay or disruption in Class 3 projects.  

As work progresses, we will be updating the Schedule control in Agile and Distributed projects section of the Mosaic website and welcome feedback: https://mosaicprojects.com.au/PMKI-SCH-010.php#Issues-A+D  

The full Costain judgement can be downloaded from: https://mosaicprojects.com.au/PMKI-ITC-020.php#Cases

Scheduling Challenges in Agile & Distributed Projects

Our paper looking at the scheduling challenges in agile and distributed projects has been published in the February 2003 edition of PM World Journal: https://pmworldjournal.com/

Critical path theory is based on an assumption that to deliver a project successfully there is one best sequence of activities to be completed in a pre-defined way. Consequently, this arrangement of the work can be modelled in a logic network. However, while CPM has proved to be an effective controls tool for many types of projects, it is equally apparent the CPM paradigm does not apply to a wide range of other project types including soft projects and distributed projects.

The focus of this paper is to:

  • Briefly define the management assumptions that support the use of CPM scheduling, its origins, and limitations
  • Develop a classification framework of project characteristics to help define the potential usefulness of CPM scheduling
  • Briefly describe some of the management approaches currently used in non-CPM projects including agile and lean, their benefits and limitations
  • Consider the application of the framework discussed above applied to a typical wind farm project
  • Develop general recommendations for the management of non-CPM projects focused on optimizing the efficient use of resources.

Based on this foundation, two additional papers will look at:

  1. Implementing a robust system for reporting progress and predicting completion in agile and distributed projects that can be applied to any class of project.
  2. Assessing delay and disruption in agile and distributed projects where the use of a CPM schedule is not viable.

Download Scheduling Challenges in Agile & Distributed Projects: https://mosaicprojects.com.au/PDF_Papers/P208_Scheduling_Challenges_in_Agile_+_Distributed_Projects.pdf  

For more on this topic see: https://mosaicprojects.com.au/PMKI-SCH-010.php#Issues-A+D

CPM Scheduling – the logical way to error #2

A few weeks ago, we published some of the ways logical inconsistencies can be built into network logic (see the post here /2022/05/18/cpm-scheduling-the-logical-way-to-error-1/).  This post covers some more of the logic challenges from Section 3.5 of Easy CPM. For the most part, this type of problems will not show up in the automated checking tools applying test such as the DCMA 14 point assessment (see more on the DCMA assessment and schedule quality at: https://mosaicprojects.com.au/PMKI-SCH-020.php#Overview).

The naming convention is borrowed from Miklos Hajdu.  In all cases the links shown in the diagram are the controlling links, in a ‘live’ schedule there are likely to be many other links as well.

Increasing Normal Decreasing Neutral

An increase in activity B will delay completion, but a reduction has no effect. There are two variations on this type of construct.

A 1-day increase in the duration of activity B will increase the project duration by one day, however, reducing the length of activity B has no effect on the project’s duration.

Increasing Neutral Decreasing Reverse

An increase in activity B has no effect, but a reduction will delay completion. Again, there are two variations on this type of construct.

A 1-day increase in the duration of activity B has no effect on the project’s duration, however, reducing the length of activity B by 1-day will increase the project duration by one day.

Easy CPM, is designed for people who know how to drive scheduling tools and want to lift their skills to the next level. The book is available for preview, purchase (price $35), and immediate download, from:
https://mosaicprojects.com.au/shop-easy-cpm.php  

Concurrent Delays – UK High Court Decision Supports SCL Protocol

Our White Paper Concurrent and Parallel Delays sets out the basic framework for considering this complex area of contract law. Download from: https://mosaicprojects.com.au/WhitePapers/WP1064_Concurrent-Delays.pdf

A recent decision by the English and Wales High Court in Thomas Barnes & Sons PLC v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC), confirms the contentions in our White Paper, and brings a breath of common sense to the consideration of EOTs and the associated delay costs when there are delays occurring in parallel.

The central elements of the dispute arose out of a contract between Blackburn with Darwen Borough Council (Council) and Thomas Barnes & Sons Plc (TB) to construct a new bus terminal in Blackburn (Project). The Project suffered significant cost increases and delays for which TB claimed extensions of time. The Council denied TB’s claims, terminated the construction contract for delay and appointed a replacement contractor to complete the works. TB subsequently commenced proceedings against the Council for monies said to be due under the contract on a proper valuation of the works done at termination (including delay costs due to prolongation) as well as damages for wrongful termination.

The case revolved around two competing causes of delay to the Project. The first, which supported TB’s EOT claim and for which the Council was responsible, was caused by deflection issues within the steelwork that required investigation and remediation which ultimately delayed subsequent activities on the critical path. The second, for which TB was responsible, arose out of delays to TB’s roof covering works, which the Council alleged caused concurrent delay to the critical path at the same time as the steel deflection delay.

Both parties relied on expert delay evidence and each expert adopted methodologies in the Society of Construction Law Delay and Disruption Protocol to undertake their respective analyses. The judge, in assessing the methods of the opposing experts, stated that ‘[109]. ….irrespective of which method of delay analysis is deployed, there is an overriding objective of ensuring that the conclusions derived from that analysis are sound from a common-sense perspective‘. As a consequence of the experts’ diverging opinions, the judge stated that the court would need to come to its own conclusion as to whether the steel deflection delay and the roof covering delay were concurrent.

Despite the fact that the roof covering delay was resolved while the steel deflection delay was ongoing (and did not cause an independent delay to the critical path), the court determined that the delays were in fact concurrent, stating:

‘[140]. In my judgment this is a case where these causes were concurrent over the period of delay caused by the roof coverings. That is because completion of the remedial works to the hub structural steelwork was essential to allow the concrete topping to be poured and the hub SFS to be installed, without which the hub finishes could not be meaningfully started, but completion of the roof coverings was also essential for the hub finishes to be meaningfully started as well. It is not enough for the claimant to say that the works to the roof coverings were irrelevant from a delay perspective because the specification and execution of the remedial works to the hub structural steelwork were continuing both before and after that period of delay. Conversely, it is not enough for the defendant to say that the remedial works to the hub structural steelwork were irrelevant from a delay perspective because the roof coverings were on the critical path. The plain fact is that both of the work items were on the critical path as regards the hub finishes and both were causing delay over the same period.’  Further, the court stated that TB could not seek to use the steel deflection delay as ‘a convenient hook on which to seek to hang all of the delay to the works’. To do so ignored the fact that there was also a problem caused by the delays TB suffered to the roof coverings, which was itself a cause of delay to the critical path.

When considering concurrency, the Society of Construction Law Delay and Disruption Protocol, 2nd edition (SLC Protocol) simply requires the delays and their effects (or parts of the delays and their effects) to be experienced at the same time for concurrency to exist. It has two relevant sections which appear to have been followed by the Judge:

10. Concurrent delay – effect on entitlement to EOT

True concurrent delay is 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. For concurrent delay to exist, each of the Employer Risk Event and the Contractor Risk Event must be an effective cause of Delay to Completion (i.e. the delays must both affect the critical path). Where Contractor Delay to Completion occurs or has an effect concurrently with Employer Delay to Completion, the Contractor’s concurrent delay should not reduce any EOT due.

14. Concurrent delay – effect on entitlement to compensation for prolongation

Where Employer Delay to Completion and Contractor Delay to Completion are concurrent and, as a result of that delay the Contractor incurs additional costs, then the Contractor should only recover compensation if it is able to separate the additional costs caused by the Employer Delay from those caused by the Contractor Delay. If it would have incurred the additional costs in any event as a result of Contractor Delay, the Contractor will not be entitled to recover those additional costs.

Applying the fundamental principal in the SLC Protocol that separates disruption and delay costs from the consideration of EOTs, the court held that:
(n) EOT and prolongation – conclusion [157]. The claimant is entitled to an additional EOT of 119 days (or 17 weeks), but to prolongation of only 27 days. After allowing for the EOTs already granted and agreed, which take the completion date to 13 April 2015, that would entitle the claimant to a revised completion date of 10 August 2015.

The overall period of the roof covering delay included a 31 day delay in starting the roof covering work and an increased duration of the roof works of 26 days compared to the original plan. In considering these contractor delays, the judgement seems to imply ‘pacing’ is not a valid basis for not considering (or reducing) concurrent contractor delays that are in parallel with client delays. TBs expert claimed: “there may have been some works to the externals that could be progressed, however this would not change my opinion that the [steel] works were critical in delay and that it was within TBS’s gift to pace any non-critical works”.

The Judge in considering this opinion stated: ‘[133]. If by this [the expert] meant to suggest that the roof coverings could have been progressed but they were non-critical and could have been performed in a more leisurely manner as a result, this seems to me to ignore the fundamental fact that throughout the crucial period from October 2014 through to January 2015 the claimant could not have known how long the remedial works to the hub steelworks would take and could not therefore reasonably have proceeded on the basis that there was no need to worry about the roof coverings until the hub steel deflection issue was completely resolved’. This part of the judgement clearly sets a high bar for any ‘pacing’ claim to be successful.

Also, implicit in the court’s reasoning is a rejection of the ‘first in time’ approach to assessing concurrent delay in favour of the pragmatic approach in the SCL Protocol that does not allow either party to benefit from a fault on its part. 

These decisions are likely to be significant in the UK, Australia and most Commonwealth Jurisdictions. For more on concurrent and parallel delays see: https://mosaicprojects.com.au/PMKI-ITC-020.php#Concurrent.

An augmented version of this post is now available at: https://mosaicprojects.com.au/Mag_Articles/AA027_Concurrent_Delays-UK_High_Court.pdf

Another aspect of this and several other judgements dealing with the way expert evidence is being treated by the courts can be downloaded from: https://mosaicprojects.com.au/Mag_Articles/AA028_Delivering_Expert_Evidence.pdf