Paper Example on Construction Delay: Defining Start & Completion Dates

3.1. Defining Construction Delay

Any construction contract defines the specific time within which the construction work is completed by the contractor. Typically, to define the period, it is required that both the start and end time often referred to as commencement date and date of practical completion. The start and completion dates must be well-defined since they form the basis for the responsible party to set in place the program that would enable the construction works to successful completion. In the construction field, the process is referred to as the baseline program as it is the foundation for construction.

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Whenever a delay occurs in the construction contract, it means that the parties will ask for more time to have the contract completed. Typically, this circumstance occurs following any change in the contract or when one party in the contract defaults in its duties. Delay occurs when, at any point, the construction project is extended beyond what was planned in the first place as the date for the completion of the project. Usually, the delay is caused by circumstances in which parties could not anticipate and involve any of the phases of project development or even part of the construction project.

In the construction contract, most of the factors that cause delays can be avoided. Delays occur at any stage during the implementation of the construction plan. Construction projects have procedures and processes which require that parties, especially the contractors, pay special attention to these processes when handling unique projects. Paying particular attention to unique projects will slow down the progress, which may negatively impact the speed of the project. As a result, it will cause the delay in completing the project within the required time.

There is a need to ensure that particular important programs are affected, and this depends on the management teams on the side of both the contractor and the client who is mandated with making necessary decisions. The fast the decisions are arrived at on some issues, the better the progress of the project, and this is likely to lead to the project being finished on time. However, delays will be experienced in situations where the management teams use a lot of time to form a conclusion on issues or agree on the matter of subject because this will as well delay the implementation process.

3.2. Types of Delays

In the construction contract, delays are termed critical when they extend the date of completing the contract. Critical delays are classified into the following categories:

• Critical or noncritical
• Excusable or non-excusable
• Compensable or non-compensable
• Concurrent or non-concurrent

3.2.a Critical or Noncritical

Sometimes, the progress of the project is featured with many events that may affect some phases, thus causing delays. A critical delay occurs when the completion project completion date is affected by the events that occur alongside the process of constructing. Non-critical delay, on the other hand, involves the disruption of the contract when such events occur. Therefore, in a noncritical delay, the completion date is not affected by the contract is disrupted in one way or the other. The critical and non-critical delays must be differentiated, especially when it comes to the extension of time since it can only happen in critical delay, and this means that the date of completion of the project is affected. An example included the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd where the court maintained that comoletion date must be affected in delay.

In delay analysis, the critical path method (CPM) has been practiced over the years as the basis of analysis. When the issue of delay is presented before the court of law, the court assesses whether the delay is on the critical path to determine if the aggrieved party is entitled to claim for the extension of time. The court will usually hear evidence from expert witnesses. An illustration of this was presented in the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd, where the decision was made by the court, disregarding any relevant delay that is out of the critical part. The court was clear that the relevant delay must be within the critical path, and if not, the aggrieved party is not entitled to any extension of time. Another illustration is in the case of John Barker Construction v London Portman Hotel Ltd, where the presiding judge for the case indicated that there is a need to use a critical path network. In the final decision, the court declared the logic in the logical analysis to establish a critical path network as a requirement in the dispute involving time for completion of the project. Contractors working on various construction projects are under the requirement to specify the critical path in the documents of contract. Clause 2.9 of JCT 2011 puts contractors under the mandate to produce a master program with an identified critical path.3.2. a. Excusable delaysIn other situations, in construction projects, events occur, but these events are not foreseen. In the excusable delays, they stem from those events which could not be foreseen, and this includes those that the contractor cannot control alone. They include those events that are a result of omissions when drawing contracts, fires, floods, errors, changes directed by the owner, and the severe weather. Research has identified the further classification of excisable delays and includes those without compensation and those with compensation.

3.2. b. Excusable with the compensation

Excusable with the compensation are delays that the owner of the project that is being constructed or the agent of the owner. For instance, the owner or the architect may by no good reason fail to release drawings until such a time when it is late because of commitments to other duties, lack of the right material, or delayed fee paymentIn many cases, when this happens, the delay would be experienced, and it means that the schedule would be expanded. The owner of the project would also be exposed to the economic damages that the contractor would claim. The contractor, on the other hand, incurs additional indirect expenses that will be part of the extension of head office and site office overheads among other head office overhead that may not be absorbed. This results into the loss on the part of the contractor and this happens when there are multiple projects conducted by a single contractor for the same employer.

3.2. c. Excusable delays without recompense

On the other hand, excusable delays without recompense include the non-compensable delays that are as a result of other parties including the third person or those incidents that both the owner of the project and the contractor cannot control. Examples of such incidents include natural happenings that involve the act of God, weather changes, fires, strikes, and the acts imposed by the company with their sovereign powers that cannot be questioned. Whenever these things occur, the contractor can ask for more time from the owner, but there is no guarantee that they would be compensated for the same and the costs incurred for the additional time. This is because the occurrence of the delay is not based on the fault of the employer by something else that could not be controlled.

3.2.3. Non-excusable delays

In other situations, the faulty may be on the part of the contractor, and this involves a lack of performance. When such situations happen, there is a likelihood that delay will occur. The causes of such delays may be due to improper scheduling of the project, and the productivity, planning underestimates. Other incidents leading to non-excusable delays include the poor management of the site and supervision equipment breakdowns, contractors, and the suppliers who cannot be relied upon and the wrong choice of the methods of construction. Whenever non-excusable delays occur, the contractors are mandated to continue with the duty to completion of the project, but this means they have no right to make any claim over additional time and delay costs. An excellent example involves the failure by the supplier to supply enough materials that would see the project completed on time,refer case,Baxall Securities Ltd v Sheard Walshaw Partnership.

3.2.4. Concurrent delay

The concurrent delay occurs when two events occur at the same time, though independent, they affect the completion of the project within the required time. The judge in the case of Royal Brompton Hospital NHS v Frederick A Hammond & Others described the concurrent delay as 'Two or more delay events occurring within the same time, each independently affecting the Completion Date." Another definition of concurrent delay is presented by SCL Protocol which observes that "true concurrent delay is the occurrence of two or more delay events at the same time, one being an Employer Risk Event, the other being a Contractor Risk Event and their effects are felt at the same time." However, SCL Protocol states that the occurrence of real concurrent delay is a rare phenomenon to happen.

Concurrent delays delineate the most common problem that the construction industry faces, which in many cases, is caused by the various delaying events that occur at the same time. However, no one party will carry the blame, but both the owner and the contractor will be responsible for the mess caused by the delay. The extension may be granted in this case. Still, even in the case of this delay, the owners of the project and the contractor share the delays in the scenario where non-excusable delays and excusable with compensation delays occur concurrently.

There are three categories of concurrent delay, and their grouping depends on:

• Whether non-excusable and excusable delays occur concurrently,
• When excusable without compensation and excusable with compensation delays happen concurrently; and
• When two excusable with compensation hold-ups occur concurrently (here, the contractor is free to claim both delay damages and time extension)
• The concurrent delay occurs in different scenarios, as follows:
• Both the employer and the contractor causing the delay
• Contractor's delay together with the neutral event happening
• Employer's delay together with the neutral event happening

The dominant cause approach is applied in courts when deciding the issues that are related to the concurrent delay. The application of the approach is evident in the case of John Doyle Ltd v Laing Management (Scotland) Ltd; similarly, this was seen in the case of Society Ltd v Mowlem Scotland Ltd. In these two cases, the courts were shown to tend to apportion the delay between parties based on dominant cause and the party responsible for the default The Malmaison approach also exists in the concurrent delay like in the case of Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Lid. In this case, the judge stated that in the event where two delay events occurred at the same time, where one is due to the Employer, then the Contractor will be entitled to additional time but not cost due to the extension.

3.2.5. The occurrence of a delay

Various issues that cause the delay to occur include the following:

• Delayed issued of the drawings
• Changes/ additions to the original scope of works
• Authority delays
• The late decision from one, or the other party
• Insufficient productivity;
• Corrective works due to the lack of quality
• Adverse weather conditions
• Unforeseeable physical conditions
• Shortage of resources;
• Transport issues etc.

In the project delay, there are various causes as defined above, but the application of each reason varies and depends on the different circumstances. This was illustrated in the case of Walter Lilly & Company Ltd v Mackay & Anor. In this case, the causes of delay were due...