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Time Impact Analysis

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Roger Gibson
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One of the most interesting threads over the last three months has been the ‘As Built Critical Path’. Since Gerry started this thread last December there have been more than 170 replies and the thread has been read by more than 2,700 planning planet members.

In the past few days, replies to this thread have referred to a method of Delay Analysis known as ‘time impact analysis’. I have created a new thread for this topic as I consider it merits discussion away from Gerry’s original question.
Some of the replies to Gerry’s thread concerned the Society of Construction Law’s ‘Delay & Disruption Protocol’ and in particular as to whether it recommends ‘time impact analysis’ methodology. It does; and the wording in the Protocol is, paragraph 3.2.11, “The Protocol recommends that this methodology (‘time impact analysis’) be used wherever circumstances permit, both for prospective and (where the necessary information is available) retrospective delay analysis”.

In my view, ‘time impact analysis’ methodology is the correct methodology to use for extension of time analysis and submissions during the project, when an event giving an entitlement to an extension of time occurs. The steps are, an ‘event’ happens, the current programme is updated for progress, future activity logic, etc is reviewed for current planned intent, corrected if necessary; and then, by using this programme, the likely impact of the ‘event’ is determined. A submission is made and an extension of time is granted – before any actual delay occurs. An ideal world (or fantasy world some may say), but this is how most forms of contract should operate.

All this is how ‘prospective’ delay analysis works; and I agree with using ‘time impact analysis’ methodology for this situation.
However, I disagree with using this method of analysis for a ‘retrospective’ delay analysis. By retrospective, I mean where the project is complete and the parties are in dispute over the total extension(s) of time that should have been granted during the project.

In the retrospective situation, ‘time impact analysis’ methodology is based on the referee (judge, arbitrator, etc) putting himself back in time to when the event occurred and using the information that was available at that time, i.e. programme, progress situation, contractor’s future intent, make an assessment and extension of time award. Exactly the same circumstances I have described for the prospective situation.

I have used ‘time impact analysis’ methodology in a retrospective situation on disputes, and the main argument put forward by the other party is ‘if you have only used information that was available at the time the event occurred, then why did the contractor not make an extension of time submission then – and not now a year after the project was completed’. The next stage of the other party’s argument is that he did not apply for an eot at the time because, using the information available, he could not justify a likely delay to completion, and it was only after actual delay later occurred, and having used the skill of an experienced Delay Analyst, he now considers he had an entitlement.

This leads me to my final point, in that the ‘windows’ method of analysis is the best form in a ‘retrospective’ situation. However, this is the subject of another ‘thread’.

I look forward to replies and the opinion of others on ‘time impact analysis’.

Roger Gibson

Replies

David Waddle
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I suspect that a lot of the problem in the Skanska case was in fact in the presentation rather than in the method of analysis - 200+ charts, although maybe have been necessary but I’m sure they probably made the judge glaze over.

That aside and back to TIA. I would like to ask for thoughts about the use of TIA and the NEC Form. TIA is obviously the most appropriate method for assessing potential delay under NEC contracts where each compensation event has to be assessed, although perhaps a Time Slice is appropriate in certain instances; and if the contractor does not do this then the Project Manager should. If however neither does, what happens at the end of the contract?

Can the contractor use TIA to go back and assess each CE as he should have?
If yes, should he estimate the effect, as he should have at the time?
Is he even entitled to go back and assess any delay?

Look forward to your thoughts PPers

DW
David Bordoli
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Roger and all…

Roger, thanks for restarting this tread – it’s a pity some of the stuff from the ABCP thread can’t be imported. You probably know why I have a ‘bee in my bonnet’ (nice!) about soliciting a reply from KP. As someone high profile who has been involved in a high profile case and, up to now known as an advocate for TIA, I cannot understand why he is so reticent to explain what method he used in Skanska. I am wondering if there is something in the method that he now thinks makes it less than robust?

TIA isn’t the panacea, not that anyone has suggested that yet. I find Timeslicing especially useful when there is a plethora of small delaying actions, repeated late information or variations are a typical example. The amount of work involved in producing an impact for those, as individual discrete events, is burdensome so amalgamating, say a months-worth together, makes it a more manageable analysis even though it may be viewed as a succession of mini-global claims.

David
Roger Gibson
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David,

I agree with you about contractors not having the capability of putting forward an Extension of Time submission based on Time Impact Analysis; that’s been my experience over the years since moving more into the dispute arena. The’re missing out on their rightful entitlement, as according to most forms of contract, they are entitled to an eot if a delay to completion is likely to occur. Time Impact Analysis is the correct methodology for this, and at the time the event happens; and not after the project is complete when it is a much more costly exercise and the parties have become entrenched.

Roger
David Waddle
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Roger
Thanks for putting me right, I should have read your first posting a little more carefully, but it is holiday time. I originally focused on the Protocol statement that TIA should be used (if possible) for retrospective analysis and missed your point about Time Slice/Window’s analysis.

My experience of TIA in prospective delay analysis is that contractor’s a) fear getting it wrong and/or b) do not have the resource to carry out such an analysis. The latter being the greater influence as often there is either no planner on site or the planner is not experienced enough to do the job as it could or should be done.

David
Roger Gibson
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David,

’Time slicing’ methodology is similar to the ’Windows’ approach and not like ’Time Impact Analysis’.

As I said in starting this thread, ’Time Impact Analysis’ should be used during the project for estimating the likely affect of an ’event’ and for supporting a submission for an entitlement to an extension of time. The estimation is based on the information (progress, etc) know at the time the event occurs, i.e. the issue of a variation/change order, drawing, etc.

In answer to your final comment, if I am in the position as an ’independant’ Expert to answer the question of "why did the contractor not make an extension of time submission" during the project. This is a question of ’fact’ and the contractor’s witnesses of fact can only answer this question.

Roger


David Waddle
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Roger,
I agree with you that Time Impact (or Time Slicing) is the favoured approach to delay analysis - so long as the information is available of course. I believe that when it comes down to it, the approach chosen is based upon quality and availability of source information with TI being #1 choice & ABCP #2 and so on. Frankly I do not see why some individuals are so dead set against TI as an approach. Out of interest when you model the delay do you base that on actual or do you put yourself back in time and estimate the likely delay?

One other thing, I did wonder how you respond to those who ask "why did the contractor not make an extension of time submission then – and not now a year after the project was completed"

Regards
DW
Jaco Stadler
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I like this 72 hrs thing. This means every 72 Hours the Schedule must be updated and issued to the client informing him of the current project progress & Delays. So this means the planner must work a 7 Day Week 365 days per year. Well I see this being very usefull in shutdowns etc but in Mega Projects NO.
Andrew Flowerdew
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Just to save the lawyers abit of time - I’m sure lawyer type persons will now tell me about the strict application of the law regarding absolute liability of contract and all other matters and I’ll reply with the Unfair Contract Terms Act etc etc and so it will go on -

Bottom line, the contract term must be deemed to be reasonable, all things taken into account. If expressly written into the contract then the contractor should in theory if he thought it unreasonable or impracticable have negoiated a different term - that said I have negoiated with some companies who have point blank refused to change similar terms, the choice being accept it or lose the contract.

All becomes abit of a grey legal area which there is no definitive answer unless you know all the circumstances leading up to the inclusion of the term into the contract, or not as the case may be.


Andrew Flowerdew
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Stuart,

Nope, there is an implied term under common law that what you contract to do is possible, be that the building of the project or anything else related to it.
Stuart Ness
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Roger,

Great idea to start a new thread on this subject [besides which the other was one getting a bit tired and worn…;-) ]; I hope to contribute more constructively when time permits next week…

Bill,
I agree with Andrew that it is the wording in the Contract with regard to the giving of notice or the submission of a claim that is generally paramount. In any event, I question as to whether a period of 72 hours is sufficient to produce a claim for EOT with any credibility. Are you sure that it doesn’t refer to the giving of notice of a claim?? Or is the pro-forma in respect of a RFCO or VOR?

Andrew,
I think that the physical impossibility refers to execution of the Works, rather than the administration of the Contract. In any event, it COULD be overcome by drinking lots and lots of Red Bull and working 24 hours a day!

Have a Happy Easter, all!

Cheers,

Stuart

www.rosmartin.com
Andrew Flowerdew
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Bill,

Hope it’s written in the contract as well as on the proforma - that said, if it is impossible to ascertain the delay in 72hrs then the contractor is still entitled to claim under common law - unfair contract term and physical impossibility are just 2 of a few probable implied terms that spring to mind.
Bill Guthrie
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have read Rodgers paper, very good except for one item.

The firms I have worked for has a pro forma for filing a claim for time extension or entitlement,however a hard line noted on the pro forma is THE CONTRACTOR HAS 72 HOURS TO FILE A CLAIM FOR TIME EXTENSION OR ENTITLEMENT from the actual event.
After that point, he shall not be entitled to any claim for time. thats it.

If your contracts read something like this, it makes life easy.

regards bill
X Planner
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I AGREE WITH YOU,,,,actually i liked your approche for this issue....but is it right to have this during the project :

1- from the owner or consultant’s point of view ?

or

2- from the contractor’s point of view ?

i think expanding on this threat will very helpful...

Thanx