So, what about contractors’ programmes? Contractors often have to cobble together programmes without enough detail, often at a stage in the tender process when the design is not sufficiently defined, and often in the face of requirements stipulated by employers who know even less about what will be involved. Contractors can’t be expected to get things right every time. It may not matter if they don’t. But when it comes to time disputes, it matters a lot.
So what do you do about an inadequate programme? Do you refer it to a delay expert? Do they throw their hands up in the air and say they isn’t going to second-guess the contractor? Or do you get him to modify it? Hands up those of you who have seen events impacted on to programmes which bear little or no relation to what actually happened on site. Who has not wondered how the expert can opine that the events they have introduced to an untested, possibly unworkable, and probably unfamiliar programme are proof of anything? And get away with it?
When it comes to proving excusable delay and its extent, disputants often put forward “proofs” based on just such programmes. Indeed, the use of critical path analysis to demonstrate delays and entitlements is proliferating and will be further encouraged if the SCL protocol is adopted. This is to be welcomed because it encourages parties to analyse delays more logically and methodically.
Where a programme has numerous events “impacted” on to it to prove delay, the proof will be based on assumptions. Foremost is the assumption that the sequence and timing of work shown on the programme was workable. Unless a programme’s reasonableness has been established, the proof will be worthless. Where a party challenges a programme’s viability, some effort must go into arguing the merits of the “baseline” programme.
It would seem sensible for a party to challenge the workability of the other party’s baseline programme from the outset, if for no other reason than to lay the foundation for a proper cross-examination of the assumptions of the other side’s delay expert.
What should we expect of the delay expert? How should they address the inadequate programme? Programmes are subjective, and assessing their reasonableness is a matter of opinion. But the expression of an opinion based on experience of industry planning practice should not present a problem. An expert can identify problem areas in programmes and, where necessary, perform corrections justifiable by logic, by industry practice, and by relevant experience.
But what sort of expert does one need? Anyone, it seems, can be a delay expert. But will it be sensible to instruct, say, a QS where a programme for substantial civil engineering works is called into question? Surely not. It can only be sensible to instruct a delay expert who understands the planning of works in the field of their professional qualification. Of course, one can instruct two experts, one in delay and one in the programming of the relevant discipline. But an ideal expert would know about both.
The SCL’s protocol requires the contractor to prepare a detailed programme, and for this to be approved by the contract administrator. Thereafter, the programme must be updated every month, to show progress and any changes in logic or in the sequence of activities. The programme is to be used to determine extensions of time, and will also undoubtedly play a major part in any disputes relating to disruption and prolongation.
Clients and contractors alike will be forced to focus on programming issues from the outset. The contractor will have identified the critical path(s) and demonstrated how events during the course of the works have impacted on their execution. The contract administrator will, in turn, have evaluated this information and approved it. The protocol should bring disputes over the workability of the baseline programme and the effect of variations and delaying events to the fore and will allow them to be tackled earlier. Anything that focuses the parties’ minds at an early stage will at least enable them to act before the real issues become lost in a morass of conflicting events, assumptions and opinions.
Nicholas Lane and Tom Wrzesien are lawyers specialising in construction disputes at Winward Fearon.