Guild of Project Controls: Compendium | Roles | Assessment | Certifications | Membership

Tips on using this forum..

(1) Explain your problem, don't simply post "This isn't working". What were you doing when you faced the problem? What have you tried to resolve - did you look for a solution using "Search" ? Has it happened just once or several times?

(2) It's also good to get feedback when a solution is found, return to the original post to explain how it was resolved so that more people can also use the results.

both client and contrator delay

22 replies [Last post]
Sun, 2006-08-20 14:29
mohamed elghayesh
User offline. Last seen 16 years 30 weeks ago. Offline
Joined: 8 Aug 2006
Posts: 3
Groups: None
if it is plan to start activity (A) on 1/8/2006 the client isuue variation order on 25/7/2006 to start activity (B). activity (B) needs 35 days to complete and activity (A) can not start without finishing activity (B). so it is clear that it will be claimed for 30 days. but if the contractor was not ready on 25/7/2006 to start activity (A)after 5 days also he was not ready even after 35 days. is the contractor has a right to claim about the V.O because he suppose to make acceleration to over come his delay without the V.O Duration
Top

Replies

Thu, 2006-09-28 04:29
#1
ashraf alawady
User offline. Last seen 9 years 33 weeks ago. Offline
Joined: 27 Aug 2006
Posts: 320
Groups: None
For sure, we have to analize any contractual issues based on the condition of contract,other contract documents and any other supporting documents.
Top
Wed, 2006-09-27 04:25
#2
X Planner
User offline. Last seen 8 years 15 weeks ago. Offline
Joined: 17 Jun 2002
Posts: 78
Groups: None
u may also want to highlight what contract reads on this issue.
Top
Wed, 2006-09-27 04:20
#3
X Planner
User offline. Last seen 8 years 15 weeks ago. Offline
Joined: 17 Jun 2002
Posts: 78
Groups: None
Dear Mohamed,

IMHO, i think u should be considering two things,

1- what was the actual situation at the time then, i mean u should look at the monthly update and u will be able to define if the contractor able or not, i believe if he was in delay already and ur V.O. will cause more delays (next update) then E.O.T can be garnted without any cost impact.

2- i think the acceleration and recovery are issues based on procedures so again if the contractor had the intention to setup a protocol to recover himself on the a/m period,then there should be correspondences on table to support your file.

Regards,
Top
Mon, 2006-09-25 05:41
#4
ashraf alawady
User offline. Last seen 9 years 33 weeks ago. Offline
Joined: 27 Aug 2006
Posts: 320
Groups: None
EOT is supported and can be grantted.
Cost is negotitionable based on the condition of your contract and the available clauses related to the above subject.
Top
Tue, 2006-09-19 05:36
#5
Andrew Flowerdew
User offline. Last seen 2 years 27 weeks ago. Offline
Joined: 14 Dec 2004
Posts: 960
Groups: None
Uri,

The contractor may or may not be entitled to money - just depends on what your contract says. He will at least be entitled to the direct cost of doing the work and depending on how your contract works, may be entitled to EoT costs.

On the information you have stated, the contractor is entitled to 30 days EoT but you haven’t mentioned issues such as lead in times for operations, etc that need to be considered.
Top
Tue, 2006-09-12 07:14
#6
ashraf alawady
User offline. Last seen 9 years 33 weeks ago. Offline
Joined: 27 Aug 2006
Posts: 320
Groups: None
Coming back to the original question"if it is plan to start activity (A) on 1/8/2006 the client isuue variation order on 25/7/2006 to start activity (B). activity (B) needs 35 days to complete and activity (A) can not start without finishing activity (B). so it is clear that it will be claimed for 30 days. but if the contractor was not ready on 25/7/2006 to start activity (A)after 5 days also he was not ready even after 35 days. is the contractor has a right to claim about the V.O because he suppose to make acceleration to over come his delay without the V.O Duration "

In my opinion ,the cotractor is entitle to get 30 days EOT but with out any associated cost.

the reason is that ’by issuing the V.O to the contractor on 27/7/2006 to start activity B so this variation will prevent the contractor from completing activity A regadless the current situation in the project because we have to answer an immportant question(what will be the case if the contractor was refoomed well ,and his progress were in compliance with the programme and the date of completion,and this variation has issued at this stag.)
so definitly the contractor is entitled for EOT but due to the recorded delays from his side ,he will not be entitled
for the associated cost.

This is my own judgement.
GOOD LUCK
Top
Tue, 2006-09-05 09:35
#7
Andrew Flowerdew
User offline. Last seen 2 years 27 weeks ago. Offline
Joined: 14 Dec 2004
Posts: 960
Groups: None
Oliver,

The SCL Protocol says TIA is the prefered method on analysis, but doesn’t tell you how to do it.

As for concurrent delay, the Protocol sets out one way of dealing with it - substantially along the lines of the law as it stands but with an American slant, but I know a few people (mostly lawyers!) who point out that you can only decide how concurrent delay should be dealt with when you know if the contract has anything to say about it. Can’t say that is wrong, some think the Malmaison approach is applicable to JCT contracts only, some (most) think it has a more universal application.

Most standard forms don’t say anything about concurrent delay and so the Protocol COULD be applicable, but these days alot of people are amending terms to try and deal with the problem. Some have sucess, others don’t - they end up putting time at large and creating bigger problems!

Personally I don’t think the confusion is a problem of law, it’s a problem of contract drafting.

Charleston - it would be good to write a TIA spec with the input from all the people on this site - I don’t think it could be done actually on the site so if anyone’s interested send me a personal message and we’ll see what can be done.
Top
Tue, 2006-09-05 09:21
#8
Oliver Johnstone
User offline. Last seen 13 years 18 weeks ago. Offline
Joined: 13 Mar 2006
Posts: 5
Groups: None
Forgive me if I am incorrect, bu isnt this what the SCL Protocol tried to do?
Top
Mon, 2006-09-04 03:12
#9
Andrew Flowerdew
User offline. Last seen 2 years 27 weeks ago. Offline
Joined: 14 Dec 2004
Posts: 960
Groups: None
Uri,

That would depend on what legal system you are working with and the exact wording of the contract. All abit of a minefield, with various different legal arguments possible. As yet non of the approaches universally being accepted as the correct way to approach concurrent delay. There have been several previous threads on this subject which may be of help - or just serve to confuse!!!!
Top
Sun, 2006-09-03 18:21
#10
Uri Shachar
User offline. Last seen 6 years 45 weeks ago. Offline
Joined: 11 May 2003
Posts: 82
Groups: None
Guys,

Please correct me if I’m wrong, I suspect some of the terminology I was not sure about refers to the "value" of delays i.e. even though delays can be concurrent one delay can be the prevailing or the predominant delay compared to the other delay(s).

In other words, my understanding is that even though, say, (the cause of) delay A occured prior to (the cause of) delay B, still delay B may be the prevailing delay and therefore any entitlement will be determined considering B and not A.
Top
Mon, 2006-09-04 09:23
#11
Charleston-Joseph...
User offline. Last seen 2 years 42 weeks ago. Offline
Joined: 10 Jul 2005
Posts: 1347
Groups: None
Hi Andrew,

I like your idea.

"I guess it’s abit like T.I.A - no recognised standard on how it should be done - maybe we should write one!"

How can we move on and make this a reality.

This is very important for Planning Engineer.

Cheers,

Charlie
Top
Fri, 2006-09-01 07:48
#12
Andrew Flowerdew
User offline. Last seen 2 years 27 weeks ago. Offline
Joined: 14 Dec 2004
Posts: 960
Groups: None
Uri,

Yes, you are right in my opinion about cause but as John and yourself said - different people take the word to mean different things.

Concurrent, parallel, overlapping and many other terms are used, concurrent delay sometimes being distinguished from concurrent effect just to confuse the matter more.

I guess it’s abit like T.I.A - no recognised standard on how it should be done - maybe we should write one!
Top
Fri, 2006-09-01 02:50
#13
Uri Shachar
User offline. Last seen 6 years 45 weeks ago. Offline
Joined: 11 May 2003
Posts: 82
Groups: None
John,

Your ’intrusion’ is most welcomed. I like your reference to delays being analysed in chronological order using TIA.

Unfortuantely, there is multiple terminilogy associated with concurrent delays such as "overlapping delays" (is it the same as concurrent delays?), overarching delays etc.
Top
Fri, 2006-09-01 02:33
#14
John Whitney
User offline. Last seen 8 years 42 weeks ago. Offline
Joined: 26 Jul 2004
Posts: 35
Groups: None
Uri,

Forgive my intrusion...but I think you are right on this. Indeed, the phrase "concurrent delay" is often a misnomer. While we often see the effects of delays being in parallel between client/contractor, almost always the causes of those delays emerge sequentially, one after the other. That being the case, they should be analyzed in chronological order under a time impact analysis.

I think we all have to very careful when we talk about "concurrent" delays. There is a lot of misinformation and confusion around concerning this subject, and I feel that the lack of a settled legal definition has a large part to play in this.


John
Top
Thu, 2006-08-31 18:24
#15
Uri Shachar
User offline. Last seen 6 years 45 weeks ago. Offline
Joined: 11 May 2003
Posts: 82
Groups: None
Andrew,

My understanding is that for Concurrent delays, the CAUSES of these delays must occur concurrently rather than the delay themselves.

This can sometimes make a difference.

Do you agree?
Top
Thu, 2006-08-31 02:14
#16
John Whitney
User offline. Last seen 8 years 42 weeks ago. Offline
Joined: 26 Jul 2004
Posts: 35
Groups: None
Andrew,

Absolutely. Still, if it were settled, how would we keep the lawyers out of the pubs?

Interesting to see that many clients in the power plant field (especially those in the US) are now increasingly trying to nail down the concept of concurrent delay at the bidding stage - all in their favour, of course! I was confronted with one such odious clause in a recent bid, and immediately threw it back with the Malmaison position. Of course, the client’s lawyers countered with another case which said the complete opposite!

We finally resolved it after weeks of argument by calling it a draw and deleting their proposed clause - but only after I said I would rather take a chance in arbitration than have our people sign their draft as it stood.



Cheers,

John
Top
Wed, 2006-08-30 09:19
#17
Andrew Flowerdew
User offline. Last seen 2 years 27 weeks ago. Offline
Joined: 14 Dec 2004
Posts: 960
Groups: None
John,

Given the amount of times the problem arises, you’d have thought it would have a settled solution by now!

In common law countries it is GENERALLY the case that if the contract says the contractor is entitled to an EoT for a certain event, and that event occurs AND causes delay to the completion date, then the contractor gets an EoT irrespective of any contractor delay occurring at the same time. (often called the "Malmaision" approach after the court case it comes from)
Top
Mon, 2006-08-28 03:04
#18
John Whitney
User offline. Last seen 8 years 42 weeks ago. Offline
Joined: 26 Jul 2004
Posts: 35
Groups: None
Zhang,

I think this is the thorny question of concurrent delay again! I believe there is no settled law on this issue.

I suggest you have a look at the comments under the TIA thread.

Cheers,

John
Top
Mon, 2006-08-28 01:23
#19
Uri Shachar
User offline. Last seen 6 years 45 weeks ago. Offline
Joined: 11 May 2003
Posts: 82
Groups: None
Zhang,

The answer is the Contract (and its interpretation). This is your first point of reference when analysing delays!
Top
Sun, 2006-08-27 23:21
#20
Zhang Haixiang
User offline. Last seen 3 years 32 weeks ago. Offline
Joined: 14 Apr 2005
Posts: 250
Groups: None
if i’m not wrong. there’re two things caused delay of task A.
one is the VO, the other is something from the contractor.

If i’m the client, to be fair, i’ll give 30days to the contractor for task A,but the contractor should be responsible for any delay beyond 30days.

I believe there will be some clients that will refuse to give more time (or at least cut the payment,apply penalty...)when he find out that the contractor can not be on schedule even there’s no VO.

It’s a classic debate, no right answer.
Top
Sun, 2006-08-27 07:17
#21
Karim Mounir
User offline. Last seen 9 years 40 weeks ago. Offline
Joined: 5 Apr 2006
Posts: 314
Groups: None
Mohammad,

U should update the schedule in order to get the effect of activity "B" on activity "A" (eg. will activity "A" or some of its successors be on the critical path or not".







Top
Sun, 2006-08-27 06:16
#22
Jawad Al-Nimri
User offline. Last seen 12 years 9 weeks ago. Offline
Joined: 7 Aug 2006
Posts: 39
Groups: None
dear mohamad,

I do not understand, you mentioned that A can not start except after b, so the planned start for A is now 1/8/06 + 35 days.

you must update your schedule, if it is so then i believe there is no concurrency.

please clarify and detail your question a bit more,


Regards,
Top