SOCIETY OF CONSTRUCTION LAW

DELAY ANALYSIS –
METHODOLOGY AND MYTHOLOGY

Tony Farrow

November 2001

A paper based on a talk given to a meeting of

the Society of Construction Law
in Manchester on 6th November 2001

© The Society of Construction Law, 2001

 DELAY ANALYSIS –
METHODOLOGY AND MYTHOLOGY

Tony Farrow

Introduction

‘Has construction law changed much over the past decade?’ During a
question and answer session at a recent lecture on construction claims, I was
asked this question. In giving my answer, I considered the question from
three perspectives; recent reforms, statute and case law.

With regard to the first point, I referred to Lord Woolf’s report Access to
1
Justice published in 1995 and his recommendations aimed at addressing the
criticisms that civil justice was too slow, costly and complex. Building on the
recommendations contained in this report, the Civil Procedure Rules came
into effect on 26 April 1999 and replaced the Rules of the Supreme Court (the
‘White Book’). Judicial case management lies at the very heart of these
reforms and I have no doubt that anyone involved in construction disputes ten
years ago will agree that the case management of construction litigation has
been revolutionised over the past decade.

I then turned to Sir Michael Latham’s report Constructing The Team (more
2
commonly referred to as ‘the Latham Report’), published in 1994, a
precursor to the Housing Grants, Construction and Regeneration Act 1996
which introduced statutory adjudication into many areas of construction. Five
years have passed and the effect of this legislation has been considerable. The
number of construction disputes that now proceed along the traditional
avenues of litigation and arbitration have been reducing each year since the
3
introduction of the Act. Ask any construction lawyer what is the type of
work they are involved in these days and the answer will probably be:
‘Another adjudication: it’s been non-stop for months’. Although it is not yet
known what the long-term consequences of adjudication will be, it can be
stated with certainty that the introduction of adjudication has fundamentally
altered the construction dispute process.

Finally, I considered recent case law, with particular emphasis on cases

concerning extensions of time, which was the area of my talk. I referred to:
4
• Balfour Beatty Building Ltd v Chestermount Properties Ltd
• Piggott Foundations Ltd v Shepherd Construction Ltd
5

1 The Rt Hon the Lord Woolf, Access to Justice, June 1995.

2 Sir Michael Latham, Constructing the Team, Final Report July 1994, HMSO.
3 An investigation into the suitability of adjudication as a means for resolving disputes in the
construction industry, degree dissertation, Jacob Shomron, University of Salford, May 2001.
4 Balfour Beatty Building Ltd v Chestermount Properties Ltd (1993) 62 BLR 1, Comm Ct.
5 Piggott Foundations Ltd v Shepherd Construction Ltd (1993) 67 BLR 48, OR.

1
 6
• John Barker Construction Ltd v London Portman Hotel Ltd.
7
• Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd
• Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester)
8
Ltd
• Royal Brompton Hospital v Frederick Alexander Hammond and
9
Others.

From these cases, the following conclusions can be drawn:

1. Theoretical calculations of delay have been discredited on numerous

occasions.

2. What actually occurred on the particular project is significant when

analysing contractual entitlement.

3. Who owns the programme float, as between employer and contractor, is

still unclear. Simplistically one would conclude that the contractor
does, but there is rarely a simple case to which to apply the rule and so
the debate over ownership continues. For example, a contractor cannot
allocate a general float period on a selective basis when dealing with
subcontractor delays.

4. When there are two concurrent delays, one the employer’s responsibility
the other the contractor’s, the latter is entitled to an extension of time.

5. However, where the contractor is already in delay and the employer

introduces an excusable event which does not further delay the works,
no extension of time is due.

6. But, if the excusable delay further delays the works, the contractor is
entitled to an extension of time, on the net entitlement basis.

From the perspective of extensions of time, my view is that recent case law
has not brought about significant changes to construction law. Instead, the
courts have clarified a number of issues, particularly in relation to the facts
and contract terms of those specific cases.

Following the lecture, I reflected on how my own practice of preparing and

evaluating contractors’ claims and related expert witness work had changed
over the past decade. One particular feature stood out. My firm employs
10
three times as many forensic planners (or programmers or schedule analysts)

6 John Barker Construction Ltd v London Portman Hotel Ltd (1996) 83 BLR 31, OR.
7 Ascon Contracting Ltd v Alfred McAlpine Construction Isle of Man Ltd unreported, 19th October
1999, TCC, [2000] CILL 1583.
8 Henry Boot Construction Ltd v Malmaison Hotel (Manchester) Ltd unreported, 18th October 1999,
TCC.
9 Royal Brompton Hospital NHS Trust v Frederick Alexander Hammond and Others [2000] BLR 75,
[1999] BLR 162, TCC.
10 A forensic planner is someone who tries to understand how the project was to be constructed, the
timing and duration of the various as-built activities and, of particular relevance, why the project

2
in 2001 than it did in 1991. This is significant because it indicates how the
nature of contractors’ claims has changed, in particular with respect to the
analysis of project delay. There was a time when this work was the domain of
quantity surveyors but today, in a firm such as mine, half my colleagues are
from a planning, construction or engineering background, rather than purely
commercial. This stems from the fact that delay analysis today is more
involved, more analytical, more forensic and a more challenging feature of
construction law than it was ten years ago.

This change can also be attributed to developments in computer technology, in

conjunction with more advanced planning and forensic software tools which
are now available to the analysts involved in the investigation of project
delays. Indeed, delay analysis has become a construction law subject in its
own right, with American and UK publications available relating solely to this
topic. The Society of Construction Law has drafted a protocol for determining
11
extensions of time.

I discussed how delay analysis has changed with several of my colleagues. Of

12
particular interest was the experiences of one of our forensic planners.
Having given evidence in a number of arbitrations, he expressed the view that
the approach to delay analysis was indeed changing. However, rather than
setting out what had occurred on a project and why, he felt many claims were
being presented on what should have occurred or what would have occurred
but for a series of events imposed upon a party. Claims were based on
theoretical models, not interrogation of fact.

We debated the number of text books now available and formed the view that
whilst the problem has never changed (ie ‘what caused the delay and who is
responsible for the time and cost consequences?’), the means of investigating
and presenting the problem (ie the delay analysis methodologies) had
changed. We decided to review a selection of these methodologies and
applied them to a single project scenario. The conclusion drawn from our
research was that many of the techniques produced different and, in some
cases, unrealistic results which were closer to fiction than fact.

From this we coined the phrase ‘delay analysis mythology’ and this is the
theme of this paper. That is to say, methodology is concerned with a set of
practices, rules or procedures used by those engaged in an enquiry, and
mythology is fictional story telling. Are those using delay analysis
methodologies as a means for investigating project delay, actually engaged in
delay analysis mythology?

The following notes briefly describe the types of methodologies in use, their
advantages and disadvantages, the factors influencing selection of a

was delayed. Forensic planners use planning, project management and database software as base
tools for interrogating planned intentions or records of what occurred.
11 Protocol for determining extensions of time and compensation for delay and disruption, Society of
Construction Law, draft November 2001.
12 Christopher Foan, Senior Associate Director.

3
methodology, the means of testing the robustness of each, and most
13
importantly, identifying how methodology can sometimes lead to mythology.

What is delay analysis?

Before considering the various different types of delay analysis methodology,

it is necessary to consider what we mean by delay analysis and why we should
want to use it.

Delay analysis refers to a forensic investigation into the issue of what has
caused a project to run late. That is, delay to the completion of work or
contract milestones caused by the time impact of events such as variations,
late information, excessively inclement weather, poor performance, remedial
works and the hundreds of other delay causing circumstances that arise on
construction projects.

Analysts distinguish between critical and non-critical delay, the former

delaying the project’s completion date and the latter affecting progress but not
overall completion. Ultimately, we need to identify those events causing
critical delay for evaluating extensions of time, but it can be difficult to
distinguish between each type. Analysts also investigate programme
disruption, or disruptive delay, which concerns issues of productivity,
acceleration, congestion, fatigue, morale and other consequential effects of
project change. This aspect is not considered in this paper.

There are three primary reasons why one might want to analyse delay: to
establish lines of investigation, to demonstrate entitlement and to present the
case one is seeking to prove.

To help establish lines of investigation

An investigation of a construction project will involve consideration of a wide

variety of issues. These include where the delays occurred (which part of the
project – was it in the foundations, steelwork, roof, air conditioning etc); when
did the rate of progress decline; where did late information or materials cause
delay; instances of competing delays; poor productivity; insufficiency of
resource; lack of design information; failure to progress; excessive rainfall and
so on.

Such an investigation requires a forensic review of project records involving

three stages:

1. Databasing relevant project records, such as programme activities,

progress schedules, actual start and finish dates, labour allocation sheets,
daywork sheets, notices of delay, material deliveries, plant deliveries,
weld records, chainage progress, drawing registers and so on.

13 I would like to thank Christopher Foan at Trett Consulting’s Manchester office for his notes and
comments on the various methodologies; also, thanks to Clare Williams in the Hong Kong office for
editorial comments and references.

4
2. Analysing the databased records by linking related data together where
relevant (eg drawing numbers linked to activity progress),
sorting/grouping data by different variables (eg progress by floor, by
gang, by ‘system’, by trade etc), aggregating or summing together
quantities (eg numbers of drawings per week, progress achieved per
month etc) and selecting or filtering data of particular interest.

3. Graphing the results of the analysis using barcharts, histograms, line-

graphs, tables etc.

Analysis of project information in this way can help to highlight when events,
delays or disruptions arose, how extensive they were, where they occurred on
the project and which programme activities were affected.

The graphs or charts produced in this way are working documents, in that
their purpose is to identify changes or variances (such as peaks and troughs in
resource levels, design information, overall productivity etc), trends
(indicating where delays arose, where events and delays occurred at the same
time, reductions in productivity etc) and differences (such as illustrating that
certain floors/trades/systems were not affected whereas others were).

This kind of working data analysis can be raw and involves ‘slicing and
dicing’ the project records in order to discover where the effects appear to
exist and where the problems probably arose. In general, such analysis does
not rely on a delay methodology, but requires a free format and versatile data
analysis and graphics software tools. From this investigation, the analyst
hopes to identify those issues, time periods or construction elements that
require a more detailed study.

To demonstrate entitlement

This is the main subject of this paper. I use the phrase ‘to demonstrate
entitlement’ with caution as it may imply that the delay analysis using one of
the methodologies is the demonstration (that is, it discharges the party’s
burden to prove the consequences of a set of events upon the progress of the
works). However, this implication is mythology. The delay analysis
methodologies do not provide the ultimate answer in a case concerning
extensions of time. The methodologies are tools for assisting in describing or
analysing complex sets of facts. It is the engineer or architect, or ultimately
an arbitrator or a judge, who has to consider and weigh up all the competing
evidence and form an opinion. The delay analysis exercise will assist in this
process but it will only be part of the evidential matrix. That is to say, the
tribunal has to weigh up the terms of the contract, relevant case law, witness
evidence, contemporary records such as photographs, as well as considering
analytical exercises such as delay analysis, and form its own views.

To present the case

Having interrogated the project records and analysed the delays, it is

necessary to convince the opposing party. This can be aided by visual

5
pictures (primarily graphs and charts) and these can be produced using IT
tools used by the delay analyst.

Delay analysis methodologies

There appear to be two groups, or types, of delay analysis methodology. The

first category is often referred to as entitlement based methods, but this is not
an ideal description since it can be confused with contractual entitlement. For
example, a contractor’s entitlement to an extension of time is derived from the
terms of the contract, whereas entitlement here is derived from the results of a
delay analysis methodology (ie it is methodological entitlement). The two are
clearly different.

Theoretical based methods is perhaps a better definition, since these methods

rely on demonstrating the theoretical impact of the consequences of delaying
events, rather than on showing what in fact occurred. Another definition of
this group could be model based methods, since each methodology is based on
establishing a programming model of the project and then influencing it by the
application of project events or constraints. In this theory based grouping are
the global and the net impact methods, the as-planned but for, the as-planned
impacted and the as-built but for methods.

The second group is called the actual based methods, since they seek to
demonstrate what actually occurred on a project and the analyst investigates
what caused the project delay. These methods include the as-planned vs as-
built, the window/snap-shot and the impact/update methods.

The theory based methods all approach the issue of entitlement to extension of
time by first focussing on the delay event and then seeking to determine what
delay may have resulted. However, this is not achieved by identifying its
actual impact from recorded facts, but by theoretical analysis of what the
effect ought to have been. These methods tend to favour the contractor’s
position because matters such as culpable delay (that is, where the contractor
has a problem of his own), the effects of mitigation (that is, the employer’s
delay being offset by simple corrective action by the contractor) and the
programming changes actually implemented by the contractor, tend to be
considered only as secondary issues, if at all.

On the other hand, the actual based methods approach the analysis by seeking
to measure how actual progress differed from what was planned. They focus
on how the works progressed, how activities were actually delayed and only
thereafter seek to ascertain what delay event(s) caused this delay.

I would emphasise that the two groups do have common features and cannot
be distinguished in absolute terms. For example, the actual based methods
also rely on models and theory, but less so than the entitlement or theory
based methods.

One feature that all the methodologies have in common, however, is the
subjectivity involved in the entire delay analysis process. If different analysts
investigated the same project, applying the same method and using the same

6
facts, they would be unlikely to arrive at the same conclusion. This is because
each analyst will have to consider and challenge a wide variety of related
issues and each analyst will apply different degrees of personal experience
and judgement.

These related issues include:

• the sufficiency of the planned durations;
• the sequence and logic of the planned programme of work;
• the sufficiency of resources provided by the contractor to carry out the
works;
• criticality, being the determination of those activities influencing
progress at each stage;
• programme float or risk contingency;
• the impact of revisions to programme;
• concurrency of events (two events imposed at the same time);
• concurrency of delays, (two events imposed at different times but
causing delay at the same time);
• contractor mitigation, ie making up lost time by construction experience
and skill;
• dominance theory (which event was the major contributor to delay); and
• acceleration, which involves increasing the rate of production by
employing more resources or working longer hours.

To take a very simple case. An element of work took two men four weeks
instead of two weeks. Throughout the period the weather was dreadful. The
contractor claims that the weather caused the delay. The employer asks why
did the contractor not employ four men? Opinions will differ, not only
between contractor and employer, but also between analysts.

The point, I believe, is this. The delay analysis methodologies each provide a
set of rules for examining project delay. However, issues affecting the
analysis using any methodology require subjective assessments and it is these
assessments that undermine the analytical or clinical nature of the process. In
addition, the rules of the methodologies can be ill defined or require judgment
in applying them, and this again increases the level of subjectivity.

In summary, none of the methodologies are perfect because they all include an
element of assumption, subjective assessment and theoretical projection, some
more than others. For this reason, the ‘answer’ that a methodology provides is
only as good as the accuracy of the base information, the assumptions inherent
in the methodology and the reasonableness of the subjective decisions made
by the analyst. This is important to recognise if you are employing delay
analysis to assist in presenting your client’s case.

The following notes briefly discuss each of the methods referred to earlier and
this is followed by some practical considerations of selection and use. One
problem any writer on delay analysis has is attempting to describe in words
something that really requires a dynamic and graphical presentation.

7
Theoretical-based methods

Global impact method

The global impact method is a rough and ready way of indicating what the
potential impact of a delay causing event has been. An example of a global
approach is where the work scope (that is, the amount of work the contractor
has to carry out) doubles due to variations and so the duration of the relevant
14
activity is doubled. In the McAlpine Humberoak case the claimant sought to
demonstrate its delay case by arguing that every hour worked on particular
variations equated to an hour delay to the project (the argument was not
accepted!). Another example of a global claim arises when you indicate the
date of a variation and measure the difference between the planned start or
finish date of the relevant programme activity with the date of the variation, to
arrive at a period of delay to the project.

The global approach is quick and simple but never contractually supportable
and provides no cause and effect. It ignores other delays occurring at the
same time and does not consider timing, concurrency or dominance of delays.
It also ignores any actual delays caused by the contractor.

This method has also been repeatedly criticised by the courts because it fails
to consider the fundamental issue of criticality (that is, whether the works
were delayed or not) and ignores reality, as well as the contractor’s duty to
mitigate. Despite the criticisms, the global method is still widely used by
contractors in an endeavour to demonstrate their case.

Net impact method

This is essentially the same as the global method but with the refinement that
the issue of concurrency of delays is considered. For example, where there
are two concurrent delays each of say five days, only five days is taken as
delay to the works rather than the total of ten days, as would be the case with
the global method. The advantages and disadvantages of the global impact
method also apply to this approach. In summary, this method has little to
commend its use.

As-planned impacted method

This method is also known as the entitlement method and the POPE method
(programme of possible entitlement). It analyses the theoretical effect of
impacting delay events onto the original baseline (ie planned) programme and
projecting the completion date using the original sequence and timing of
remaining activities. It can be used to show the theoretical delaying effect of
the employer’s delays, or of the contractor’s delays, or of both together.

The prerequisites of this method are a baseline critical path programme that
represents the contractor’s intent and a schedule of delay events. The first
step is an assessment of the likely critical delaying effect of each delay event

14 McAlpine Humberoak Ltd v McDermott International Inc (No 1) (1992) 58 BLR 1, CA.

8
in the schedule. This can be estimated using norms and experience, or be
based on evidence of the actual delay experienced on the project. Secondly,
for each delay event, the effect (such as a delayed start, delayed finish or
prolonged duration) is individually impacted onto the planned programme, in
chronological order and the project completion date re-analysed. This process
continues until all of the delays have been impacted.

The strength of this method is that the process avoids the need to analyse
actual progress records in detail because the key elements of the methodology
are the original baseline programme and a schedule of delay events.

However, there are two principle weaknesses of this method. Firstly, the
original baseline programme may not be a realistic model on which to base the
whole analysis (because the works were probably carried out in a different
sequence and at a different time from that originally planned). Secondly,
since actual progress is not considered, this method does not demonstrate what
actually caused delay to the works. If it can be shown that a delay event,
relied upon in the analysis, could not have actually caused delay (for example,
if it can be shown that alleged late information was received well in advance
of the actual progress of the works), then the methodology will lose
credibility.

If the result of this method is a projected end date that is much later than the
actual achieved end date, then the reasonableness of the analysis will be in
doubt, which is often the case. As with the other entitlement methods, the
results derived from the analysis are likely to be attacked as artificial.

As-planned but for method

For this method, the analyst impacts the planned baseline programme with the
assessed implications of the events a party considers it is responsible for and
the combined influences of these are analysed. The impacted completion date
is then compared with the as-built completion date (that is, when the project
was actually completed) and the difference is said to be how much earlier the
project could have finished ‘but for’ all the other delay events (imposed by the
other party) but which have not been analysed. The period between the
analysed date and the actual completion date is said to represent either the
contractor’s entitlement to an extension of time or the employer’s entitlement
to deduct liquidated damages, depending on which set of events have been
analysed.

The advantage of this method is that it is reasonably quick, as there is no need

to consider actual progress of the works or the timing of events, but this means
it is a theoretical investigation.

This method also relies upon the planned model for carrying out the works
and ignores the fact that the actual critical path would more than likely be
different. This is because a planned programme is an early projection of
intentions and the contractor will change the sequence and timing of activities
when the works are in progress.

9
As-built but for method

Although this methodology adopts a model of the as-built programme for

analysis, and so starts off as a fact based analysis, it is still a theoretical
analysis of delay. The approach is similar to the as-planned impacted method,
but in reverse. The as-built programme is first constructed and linked together
into a critical path network. This becomes the model to be analysed. A
schedule of delaying events is created, including a measure of their impact
(for example, a start delay, a finish delay or an activity prolongation). The
very last excusable delaying event on the critical path is removed and the
model is re-analysed. The difference in the overall programme duration
before and after this removal is said to represent the period of critical delay
caused by the particular delay item removed. For example, if the last activity
in the project happens to be a five day painting variation, when this excusable
delay is removed, the programme is able to finish five days earlier. Thus, ‘but
for’ the additional painting, the programme could have finished five days
earlier.

This process is then continued until all excusable delays have been removed
and the model has been fully collapsed (the method is also referred to as the
collapsed as-built method). The process can also be applied by removing all
the excusable events together, or by grouping similar excusable events
together and removing each group individually. Whatever the approach, each
invariably produces a different answer! Once the analysis is underway, the
model no longer represents the real as-built programme but is only a
simulation of what the as-built programme could have been had the delay
events not occurred. The model is, therefore, sometimes referred to as the
simulated as-built programme.

The accuracy of the analysis will depend on the quality of the information on
which it is based. The greater the amount of information that can be provided
in support of any assumptions made, the more credible the results. Such
information will generally be gained from site records, in whatever form they
exist, and the importance of accuracy, completeness and reasonable logic
cannot be over stressed. However, since the method is based on the as-built
programme, it appears to have a thread of truth about it.

Although the principles of this methodology are straightforward, its

application is not. It is dependant on subjective logic links that were never set
down and which were never agreed in any contemporaneous programme. It is
open to criticisms of bias on the part of the analyst. Also, removing delay
events (and logic links) retrospectively does not reflect the actual way the
works were progressed. Hence, this methodology does not appear to be an
appropriate one for most standard forms of contract. In summary, the results
of an as-built but for analysis are often impossible to defend because they do
no relate to what actually happened on the project.

10
Actual based methods

These methods are characterised by the fact that they focus on determining the
delay periods and then assessing which event(s) caused that delay.

As-planned vs as-built method

This is probably the most common method and it compares the original
programme intent and the as-built programme to enable an assessment of
where delays occurred in any particular period of time. This method is ideal
for those projects where it is easy to identify where the main delays arose, for
example, from a high level barchart comparing as-planned v as-built activities.
This methodology also lends itself to the analysis of relatively small
programmes (say up to 50 activities) which can be considered on one page and
so viewed altogether. For most complex project disputes, however, this
method is only useful for an initial pass.

Having identified delay periods, the next stage is to establish which delay
events caused the particular delay periods, how these delay events competed
with other concurrent events and whether the delay periods were critical at the
time. This may require a more sophisticated methodology.

The main advantages of this method are its simplicity; the fact that it considers
what changed in terms of planned intentions; and that it is a ‘visual’
methodology with no manipulation (in contrast with the as-built but for
method). It is a relatively low cost methodology and is particularly useful in
identifying where the main delay periods probably arose.

The main disadvantage is that for complex projects, with competing delay
events and large numbers of activities, the method may not be rigorous
enough.

Windows/snap-shot or update method

This method is a more rigorous version of the as-planned vs as-built method

but follows the same basic philosophy, that is considering when and where
actual delays were incurred. The main refinement is that critical path analysis
is used to assess criticality, delay and indeed mitigation.

The as-planned and as-built programmes are first established, along with any
revised programmes (each programme must be compatible with the others so
that they may be readily compared ie they must have generally equivalent
activities). These programmes (or the original as-planned programme at least)
are then logically linked so that they become critical path programmes. The
as-planned programme becomes the model. The overall project duration is
then divided into periods in order to make the analysis more incremental. In
practice, the increments coincide with the frequency of the progress reporting
cycle, say monthly, or with major milestone events.

For each time period or ‘window’, the duration, progress and logic of the work
actually carried out in that month (from the as-built programme and progress

11
records) are imposed onto the as-planned model. If any major planned
programme revisions were made in that period, these should also be
introduced into the model. The model is then time analysed. The end date is
the result of actual progress achieved to date (ie up to the end of the window)
and planned durations and logic for the remaining work. The difference
between the end date from this analysis, and the end date from the previous
window or snap-shot, represents the period of delay or mitigation which arose
in the current window. Having identified a period of delay or mitigation in the
period in question, the remaining task is to assess the causative event or
events. This can be done in a variety of ways; by detailed visual inspection (ie
expert assessment), by creating, impacting and analysing sub-nets (eg small
critical paths that model a single programme activity in greater detail).

The strength of this approach is that it forces the analyst to consider actual
progress and revised programme intent in a logical manner. It produces a
result which cannot be easily rejected as contrived because it is practical
rather than theoretical. Issues such as mitigation, criticality, concurrency and
dominance are all taken into account in a transparent manner, leading to better
understanding of what occurred and the circumstances at the time.

Impact/update method

This method is an enhancement of the previous method, but is very similar to

it. Whereas the window/update method establishes delay or mitigation in each
window period and leaves the assessment of causation as a separate debate,
the impact/update method introduces the causative event into the delay
analysis. That is to say, this method applies events to the as-planned model on
a month by month basis (the windows) to derive the monthly entitlement but
then considers the actual monthly production, ie to contrast the contractor’s
actual performance, in terms of culpable delay or mitigation.

A delay schedule is drawn up before the analysis proceeds and this will list the
delay events alleged to give rise to contractual entitlement. For each of the
window periods, the delay events that are alleged to have arisen in the period
in question are impacted on the planned model and time analysed. The
resultant project end date at the end of the window will reflect the notional
entitlement, at that time, to an extension of time. The contractor’s culpable
delay events that are alleged to have arisen in the period in question may also
be impacted on the model and time analysed. The resultant project end date
will reflect the additional delay, if any, caused by the contractor in that month.

Following analysis, the progress records are imposed on the planned model
and the programme time analysed again. The resulting end date will represent
the overall delay to completion actually occurring in that window period.
This will allow for excusable delay events, compensable delay events,
culpable delay events and contractor’s mitigation due to changes in
programme or faster progress.

From these two exercises (the planned model time analysed with delay events
and the planned model analysed with actual progress), the analyst is provided

12
with information on causation which can then be debated as to dominance,
concurrency, mitigation and so on.

This is probably the preferred method of analysis due to it being more

transparent, practical, balanced, and based on critical path analysis. It
considers actual progress and revised programmes, allows for matters of
concurrency, dominance and mitigation to be debated, and limits the degree of
initial subjectivity to the logic links within the model.

However, the weakness in the method is that it can be expensive to carry out
and requires good as-built records. Furthermore, the courts have implied that
the assessed time impact of early delays could diminish later on in the
programme.

The methods contrasted

Having described the various methods under the two headings of theoretical
based and actual based, I suggest that the methods fall into four basic groups,
identified by the approach:

1. The first approach applies to most of the theoretical methods. A model

of what was planned is produced, ignoring how the project was actually
constructed, and actual events are imposed on the model to see how they
may have influenced the end date. Any extended completion date is
said to give rise to an entitlement to an extension of time. In most
applications, this is mythology.

2. The second approach is the ‘but for’ methods, which create models of
planned intentions or the as-built project and seek to address causation
on the basis of assumption. If the employer had not imposed this event
or constraint on the contractor’s performance, when would the works
have been completed? The fact is, the event or constraint was imposed
and the standard forms of contract ask for the consequences of it. In
many applications, these methods produce mythology.

3. The third approach, which historically has been the most widely used
and from my experience, is what the lawyers prefer, is the as-planned vs
as-built method. Two models of the project are overlaid on each other
and the analyst seeks to explain the causes of the variance (possibly
using another methodology).

4. The final approach is to re-live the life of the project by considering the
programme in incremental stages, by using the window/update or
impact/update methods. What these methods are attempting to do is
consider events at the time they arose and consider what was the likely
entitlement at each month. This can be contrasted with the as-planned
vs as-built method which seeks to justify the overall plan with the
overall as-built in one step. These update methods are probably the
most robust and extensive analyses.

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Choosing a method

What factors may affect the selection and approach adopted?

Firstly, the nature of the project or claim, or the case one is seeking to explain
often influences the approach to be taken. Where the case is primarily
concerned with justification of time, the more theoretical methods (particulary
those relying on critical path analysis) are helpful. However, if the claim is
for money as well, an approach based on what actually happened is warranted.
This is because recovery of money suggests a positive assertion which the
claimant then has the burden to prove in a positive way (and there is an
appropriate standard for this). For example, the contractor will have to show
what actual resources were on site during the actual delay period, not some
theoretical resource level during some notional delay period. However, a
more theoretical approach may be acceptable to support the negative of a
loosely asserted fact, alternatively to demonstrate mitigation or acceleration.

Secondly, instead of analysing your case by one method, consider using two
approaches. In fact, a sign of a potentially weak case is the adoption of a
theoretical methodology that does not rely at all on a more factually based
presentation.

Thirdly, methodology is often affected by the available software. For

example, Microsoft Project, Power Project and Pertmaster are critical path
analysis tools but require other software packages for processing data.
Primevera is said to be a very good forward planning tool and although it can
be used for analytical purposes by itself, it is said to be cumbersome. Artemis
is a powerful package with an integrated database for forensic analysis of
project records. However, Microsoft Project only requires a few hours of
hands-on learning before it can be used; Artemis requires specialist training
courses and years of experience. In addition, one costs £250, the other
£5,000. Note also that each software package has its own procedures, rules
and methods of operation. Therefore, each delay analysis methodology may
have to be applied in a different way. This is important to note if writing
method statements for delay analysis. They should not be written around one
specific package.

The fourth issue to note is that delay analysis, particularly when using critical
path analysis, is fraught with manipulation. For example, a slight but
unjustifiable adjustment to logic links can be difficult to identify but can
produce the appropriate result for one party. Another typical manipulation is
the manner in which events are analysed. A common one is the introduction
of additional work by increasing the appropriate activities by a proportional
amount equivalent to the extra work. Such approaches usually exaggerate the
case. Another example is the sequence in which delays are entered onto the
programme.

Quite often, the approach taken in delay analysis is dependant on the status of
the party’s records, or lack of them. This is a governing factor, not just of the
methodology selection, but also of the depth of the investigation. An aspect of

14
depth of investigation concerns the numbers of programme activities to be
analysed. Although this issue is case specific, my experience is that ten
activities are too few and many hundreds of activities too many. On a fairly
large project, I would attempt to analyse up to 100 activities. In fact,
experience also indicates that programmes with many hundreds or thousands
of activities are far too complex to sensibly analyse and produce unrealistic or
unreliable results. They produce mythology.

Another point to note is that there needs to be equality between the level of
activities being analysed and the progress details available to measure
progress. This certainly applies when one is considering the as-built situation,
which is, more often than not, advisable. There is no point in seeking to
measure the progress of a thousand activities on a planned programme if
records were only kept of a hundred. In these situations, the approach to take
is to produce an as-planned vs as-built comparison which is to the highest
level of available consistent detail. For example, consider a ten storey
building with ten planned activities per floor. Progress has been monitored
per floor, but not by activity. In this case, the as-planned vs as-built
comparison would be by floor, but where delay is apparent on any particular
floor, this can be investigated by seeking to develop the events on the ten
activities by reference to other records.

An alternative situation is where the planned programme provides

insufficient detail to enable proper analysis of the actual circumstances. In
this case, it is normal to develop sub-nets of the planned programme, which
analyse in greater detail the manner in which certain aspects of the works
would have been constructed and the sequence and timing. In this way, a
more intensive analysis is only carried out during those periods where the
high level analysis indicates that deeper investigation is warranted. It is not
necessary to produce the entire plan or the entire as-built in greater detail.

However, developing the as-planned programme in greater detail usually

results in the cry of ‘foul-play’, possibly rightly so. Hindsight is a wonderful
gift of the delay analyst and one can always come up with a sound argument
to justify the sequence in which a particular element of unplanned work
would have been carried out, as well as its duration. This is then compared to
what actually occurred and, hey presto, we demonstrate a delay caused by an
event which is the other side’s responsibility. Consequently, the more
hindsight that is applied to your methodology, the greater the opportunity for
challenge on the grounds of bias or unreliability. If you do not have an as-
planned programme in sufficient detail, think twice about developing a very
complex plan years after the project was started.

I have noted above that the most common approach to delay analysis is to
contrast the as-planned with the as-built programme and seek to explain the
variance. However, it is still necessary to justify the reasonableness of the
plan. Otherwise, an alleged delay can be challenged on the basis that there
was no delay, only an optimistic plan! This is a point missed from many
delay claims. Not only should the claim rely upon the planned intent, but
detailed method statements should be used to justify it.

15
One of the most frustrating situations in delay analysis is having a project
which has been delayed but where there is no clear cause. There are lots of
potential events: instructions, variations, access problems, re-sequencing,
drawing amendments etc. However, when analysed, each perhaps contributes
a frustration or disruption to progress but there is no major event delaying the
project. I believe the Ascon case15 was of this type. In such situations, it is
tempting to apply less robust methodologies, such as the global or net impact
methods, in order to demonstrate entitlement (because, for example, changes
were repeatedly made and the last instruction, contrasted with the plan,
16
indicates a considerable delay). Balfour Beatty v Chestermount put paid to
17 18
this type of approach. The McAlpine Humberoak and Ascon cases have
both confirmed that wholly theoretical calculations are unlikely to succeed.

In such cases (that is, where there are many small issues) what is required is
an analysis of the actual, realistic impact of each item. This can be a costly
process as well as inconclusive, since the individual impacts do not justify the
total overrun. With the inability of delay analysis to justify the period of
delay, the contractor must argue that the combination of all events resulted in
disruption or dislocation to the programme, which itself is measured by the
difference between the derived entitlement and the actual. In the Ascon
19
case, it appears that this approach was not successful.

Summing up

The first point to note is that there is often no certain answer to a given set of
facts. This is partly because the theories and principles upon which we build
our case are incompletely developed, as well as being inexact. Applying the
same facts to the different methodologies results in different allocations
between excusable and inexcusable delay.

Another point to recognise is that construction contracts frequently throw up

the most complex set of related circumstances and to disentangle these into a
clear chronology and logic can be difficult, if not impossible. Available
records only tell part of the story and memory has to fill in the gaps, but
opposing parties have contrary recollections of the facts. Hence it is the norm,
rather than the exception, that one has to analyse project delays based on two
sets of asserted facts. Each set of facts produce different conclusions.

A third point to note is that extension of time clauses in contracts are not
prescriptive. They are drafted in a general way and it is not industry practice
to pre-determine how delays should be analysed, either in terms of
methodologies or in dealing with such factors as float and concurrency. Even
if clauses were more prescriptive, the facts of the case would still be argued
over.

15 See note 7.
16 See note 4.
17 See note 14.
18 See note 7.
19 See note 7.

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Case law can be helpful in deciding how to approach delay analysis but often
it is so case specific that the facts on your project never quite relate to the
decided case. Of course, there are those who say that, given a set of
circumstances and a particular contract, there is only one definite, certain
answer and outcome, and the other side are clearly wrong! However, one of
my colleagues often tells the story of an arbitration case where they lost the
issue they knew they would win, but won the issue they considered they
would lose. I am sure many have similar experiences; I do not think my
colleague’s experience is unique. It is necessary to acknowledge, therefore,
that in delay analysis there is often no clear solution, either in methodology or
law. To allege otherwise is generating mythology.

So, how can we maintain a critical attitude towards the case, particularly when
some members of the team hold clear and unambiguous views? There are a
number of recommended measures.

Firstly, appreciate that the methodologies do have an order of merit. A delay

analysis using the global or net methods will produce a result that is closer to
mythology than fact, whereas the impacted/updated programme methods, if
applied properly, are preferred as they seek to address what occurred/or
should have occurred, at the time. I would suggest that the order of merit is as
set out in these notes, but note that I have introduced them in reverse order!

A second important step is exemplified by the comment of a Technology and

Construction Court judge in a recent case. He said to the delay expert: ‘I hear
what you say about the results of your analysis, but, standing back from the
facts of this case, have you tested your methodology?’ The point being made
was that, if your analysis is built on a particular methodology, you must test
its robustness. This can be carried out in several ways. For example, one
technique is to employ what has been referred to as the extreme case rule.20
Apply extreme conditions or circumstances to the analysis. If the
methodology holds good for both situations (ie it produces sensible, logical
answers) it can be more confidently relied upon as being robust. This rule is
used by some arbitrators when weighing up the parties’ alternative
approaches.

Another test is the small change rule. In this test, small changes are made to
the methodology or the analysis to see what happens to the results of the delay
impact. For example, if small changes are made to the programme logic, do
you get significant changes to the completion dates? Or, if you amend the
order in which delays are entered on to the analysis, does the impact change?
For this type of test, one is looking to identify significant changes in the
results arising from minor changes to the methodology or the analysis. Such
changes may demonstrate a weak methodology.

Finally on critical views, it is important to emphasise that the starting point of

delay analysis is the parties’ contract and the contract terms relating to
programme, progress, delays and extensions of time. For example, is there an

20 Credit is due to Harold Crowter for introducing me to this rule.

17
agreed programme; what are the obligations in regard to updated programmes;
what is the base case programme; how are delays to be notified; were delays
notified; were particulars provided; is there a condition precedent clause?
Very simply, there may be a very strong case in fact, but if a contractor has
failed to register its entitlements, will this affect the prosecution of its delay
claim or its defence of the liquidated damages claim?

Conclusion

To conclude, methodology is defined as a body of practices, procedures or

rules used to engage in an inquiry. Mythology means story telling. The delay
analysis methodologies in use today each contain a set of rules which in
themselves can be applied in a subjective way. It is not difficult to manipulate
a methodology to arrive at the ‘required’ answer. There are many related
issues that influence the analysis and these involve the application of personal
experience and judgment. Hence, one analysts’ view of a given set of facts
will result in a different conclusion from another analysts.

There is no preferred delay analysis methodology suitable for all cases,

although some methodologies are more robust than others. The more
theoretical the methodology, the weaker the analysis. It is always better to
demonstrate what actually occurred, although theoretical approaches can be
helpful (particularly for the issues of mitigation and acceleration) but the
results should be tested. The extreme case or small change rules are useful
techniques for testing the methodology.

The methodologies do not tell you what the results mean, for example, in
terms of contractual liability. It is necessary to interpret the meaning of the
results. Remember also that delay analysis is only part of the evidential
matrix.

Although I believe that delay analysis can be an extremely important aspect of

many cases, it is not as precise a science as some suggest. In my view, it is as
much an art as a clinical, analytical study. In order to demonstrate this point, I
have included a small case study in Appendix 1. I have also included four
potential answers, but these are not the only possibilities. I look forward to
being told what the correct answer is.

Tony Farrow MSc BSc DipArb FRICS FCIArb FAE is Executive Director of
Trett Consulting.

Tony Farrow and the Society of Construction Law 2001.

18
The views expressed by the author in this Paper are his alone, and do not
necessarily represent the views of the Society of Construciton Law or the
editor.

19
 APPENDIX 1

DELAY ANALYSIS EXERCISE:

THE SWITCHROOM

THE SWITCH HOUSE

1 2 3 4 5 6 7 8 9 10 11 12 13 14
Delay 1 Slow Progress Planned Actual
Completion Completion
1 STEEL FRAME
Sub-Contractor A

2 WALLS & ROOF

Main Contractor
Delay 2 Notified
Late Switchgear
3 SWITCH GEAR Delivery
Sub-Contractor B
Delay 3
Inherent Design Fault
4 ACCESS GANTRY Discovered
Main Contractor

2000T CRANE
Main Contractor
Delay 4 Crane Delay

Approved Programme As-Built Projected

The main contractor is to build the walls, roof and the access gantry, which is fixed to the outside of
the building. The main contractor is to supply a 200T crane for the erection of the access gantry. The
supply and installation of the steelwork to the building is to be carried out by subcontractor A and
switchgear inside the building supplied and installed by subcontractor B.
Delay 1: Subcontractor A has labour problems and finishes activity 1 two weeks late.
Delay 2: Subcontractor B advises that the switchgear for activity 3 will not be on site until week 11.
Delay 3: On commencement of Activity 2, a design fault by the employer is uncovered and this will
prevent commencement of Activity 4 by two weeks.
Delay 4: The 200T crane is delayed on another site until week 10.
Consider who is liable for the overrun weeks 11, 12 and 13. Suggested solutions:
Solution 1 Solution 2
Employer's liability - week 11 Employer's liability - weeks 11 and 12
Main contractor/Subcontractor B - week 12 Subcontractor B - week 13
Subcontractor B - week 13
Solution 3 Solution 4
Subcontractor A - week 11 Main contractor/Subcontractor A and B
Subcontractor B - weeks 12 and 13 - week 11
Main contractor/Subcontractor B -
weeks 12
Subcontractor B - week 13

20