Despite this, it was not long before the protocol began to be referred to in delay and disruption claims as if it were a clear and binding statement as to current law. Although most adjudicators and judges have rightly given such arguments short shrift, without a contractual role it was not clear what future the protocol would have, if any.
Now solicitors Fenwick Elliot and programming experts Pickavance Consulting have produced the PFE Change Management Supplement to the JCT 1998 Standard Form of Building Contract. The intention of the supplement is to incorporate the recommendations of the protocol into the JCT contract so that the contract becomes protocol-compliant. Whether or not you think this is a good idea will depend very much on whether or not you approved of the protocol.
If you do not think that the recommended "prospective" analysis of delay should be used retrospectively following completion of the project, or if you think that the simplistic way the protocol dealt with concurrent delay disregarded existing law, then the supplement is not for you.
There are other disincentives to its use. The supplement is not an easy read. The amendments amount to 26 pages of contract changes and schedules and require 23 pages of guidance notes to make sense of them. As the authors note, some of the terms used may not be familiar to those unused to the rigours of critical path methodology. Less than helpfully, they suggest that you might go and buy a copy of Pickavance's book on the subject for further guidance.
The new role of "risk manager" is an important one as they will be responsible to the employer for identifying risk issues that need to be properly dealt with in the programs to be produced by the contractor. The risk manager is also to advise on techniques for preparing the programmes and software to be used on the project, and the "general shape and feel of the management information to be required from the contractor". The role of risk manager may not necessarily be taken by a member of the design or construction team but might instead be independent of them. Clearly he or she will have a heavy workload in analysing the information prepared by the design team and that produced by the contractor to ensure that change can be managed adequately under the contract. It is a role that will require training and increased resources – the cost of which will no doubt be footed by the employer.
Much of the supplement sets out requirements on the contractor in relation to the preparation and updating of programmes and the supply of information by the contractor to the employer.
If the programmes specified are not correctly and regularly updated, then the whole timing mechanism in the contract, including the method of analysing delay, will not work. Given the difficulty even some sophisticated contractors have in regularly updating construction programmes, one should not underestimate the administrative burden the programming and information requirements of the supplement will place on the contractor. If it is not to fall foul of the provisions of the supplement, the contractor will need to retrain staff and engage additional properly skilled resources. Although the increased costs and administrative burdens may be time and money well spent on bigger projects, it is hard to see how they can be cost-effective on smaller projects.
It appears that the authors are planning similar supplements for both the Intermediate and Minor Works JCT Forms of Building Contract. Assuming the same level of detail and paperwork is required for those forms, it is hard to see such supplements being widely taken up.
Marc Hanson is a partner at CMS Cameron McKenna.