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.

Extension of Time Claim-UPDATED VS. IMPACTED

12 replies [Last post]
Khalil Masoud
User offline. Last seen 12 years 24 weeks ago. Offline
Joined: 14 Oct 2007
Posts: 19
Groups: None
Gentlement;

One of my subcontractors had sent EOT claim for his works with impact schedule showing slippages/delays in many activities as measured against the original approved baseline schedule.
Later on, when the subcontractor submitted his monthly update of the schedule, it WAS showing "actual" dates for some activities much earlier than relevant dates in his Impact Schedule submitted along with his EOT, which means that activities he expected to be late are not actually late as evidenced by the monthly updated schedule.
CAN THIS BE CONSIDERED AS A REASON TO REJECT THIS EOT BECAUSE THE ACTIVITIES HE CLAIMED WILL BE LATE ARE SHOWN TO PROGRESS ON TIME ACOORDING TO THE MONTHLY UPDATE OF THE SUBCONTRACTOR. IN OTHER WORDS, CAN THE ACTUAL UPDATE OF THE PROGRAMME BE USED FOR COUNTERCLAIMS??

Replies

olabisi aliu
User offline. Last seen 5 years 5 weeks ago. Offline
Joined: 24 Jun 2011
Posts: 3
Groups: None

the full detail is

Puneet Gupta
User offline. Last seen 7 years 8 weeks ago. Offline
Joined: 26 Apr 2005
Posts: 92
Dear Khalil,

Which methodology your contractor is using? Is he using As-Planned As Impacted or TIA?

If he is using As-Planned as Impacted, It very likely that the updated schedule completion date will not match the Impacted completion date.

Also, Entitlement is different from Actual completion.
Andrew Flowerdew
User offline. Last seen 1 year 28 weeks ago. Offline
Joined: 14 Dec 2004
Posts: 960
Groups: None
The contracts that work on "likely or future delay" often causes alot of arguments. Wasi is right when he says a claim looks like some form of "virtual reality" and doesn’t look anything like what actually happened. BUT, if at the time the delay occurred that was the reasonably expected outcome then the Contractors entitlement to an EoT has accrued.

Second exercise is then to determine what that EoT should be. As the Contract Administrator normally has a period of time in which to assess the EoT, (eg 12wks in the JCT), then he may take into account what actually happens within that time period and grant an EoT accordingly. Yes, more arguments follow, the Contractor wanting his full "theoretical" EoT, the CA normally thinking something less is appropriate.

The general over riding objective I would argue is to arrive at an EoT that is a fair and reasonable period of time for the contractor to construct the works taking into account those delays that the contractor is not liable for.

This will involve some form of analysis, some common sense along with a fair, reasonable and impartial thought process. Sadly one or all of these are often missing from the process and disputes are the result.

Wasi Raza
User offline. Last seen 3 years 11 weeks ago. Offline
Joined: 29 Apr 2005
Posts: 55
Groups: None
Khalil
This is an interesting one. The programme submitted by the contractor for EOT sounds to me like what i call ’Virtual reality’. If that is the case, then what he is saying is that according to the logic in the programme ’accepted by the client’ at that point in time, the delays would have impacted the programme as shown. It doesnt necessarily mean that thats how the things went ahead in actual. Hence the actual update of the programme looks quite different.
If the EOT programme and the impact can be understood using common sense more than the logic of the programme, then it should be easier to determine.
Andrew Flowerdew
User offline. Last seen 1 year 28 weeks ago. Offline
Joined: 14 Dec 2004
Posts: 960
Groups: None
First thing to ascertain is on what basis is the EoT entitlement to be assessed - this will come from the wording of the contract.

It will either be along the lines of "actual" delay incurred or otherwise something along the lines of "likely or possible or probable" delay.

This will determine when the contractors contractual right to an EoT occurs.
Rodel Marasigan
User offline. Last seen 1 year 39 weeks ago. Offline
Joined: 25 Oct 2006
Posts: 1516
Khalil,

It’s too difficult to evaluate the whole scenario to envisage the root of EOT and their entitlement without going to the details of their contract.

For the sake of this forum my view is:
If the baseline is agreed and EOT is submitted based on the agreed baseline prior to the update of the progress their entitlement is still valid. It’s contractor choice to expedite their schedule at their own cost which will be compensated by EOT claims.

Case to case basis: If the EOT was not approved, according to the contract, what’s the time frame for the approval of EOT and have you notified the contractor that the EOT claim was rejected?

Worse scenario: If the contractor was not advise that their claim was not approve within the time frame in the contract that will be consider as an approve claim.

Another case: Is their any critical activities affected which cause delay of completing a milestone aside from the said activities updated as actual?

Rodel
James Barnes
User offline. Last seen 1 year 3 weeks ago. Offline
Joined: 6 Sep 2007
Posts: 241
These activities that finished earlier than suggested on the impact schedule, did they *start* earlier than on the impact schedule or were they completed in a shorter duration?

Maybe I misunderstood, but I thought you said that he completed certain of the baseline activities faster than had been agreed on the baseline (ie in a shorter duration), which would be accelleration, whether with or without cost

OTOH, if you are saying that the baseline said that one activity was affected by another (eg drawing approval before scaffolding erection) but in fact scaffolding erection can go ahead regardless (or interim approval was given or whatever) then reality would prevail. What you are actually saying in that case is that the EOT claim is spurious because there was in fact no effect on the *real* critical path by the client led delay, it only appeared so because there were errors in the baseline logic. Then no EOT.


/edit Gah, no, let me qualify that;

1. There was a clear error on the logic of the baseline. No EOT
2. There wasn’t an error in the baseline, but the contractor were able to agree on a different order of works which avoided the logic, allowing the CPA activities to be started earlier. EOT is due, but considered mitigated thus prolongation costs should be reduced (perhaps completely) as he will finish before the extended date.
3. If there was no error in the baseline and the contractor was able to shorten one or more of teh durations of subsequent CPA activities at no cost to himself then EOT is due as in item 2.
Khalil Masoud
User offline. Last seen 12 years 24 weeks ago. Offline
Joined: 14 Oct 2007
Posts: 19
Groups: None
James,

In my case, there is no acceleration. The case simply is that the contractor is assuming this minor modification would delay some activities whereas it did not!!!
I didn’t mention any acceleration measures taken by the contractor.

Thank you
James Barnes
User offline. Last seen 1 year 3 weeks ago. Offline
Joined: 6 Sep 2007
Posts: 241
it sounds like to me

- Baseline is agreed
- Client led delays occur, resulting in a measurable impact the the start of one or more CPA activities, thus EOT would be considered resonable
- The contractor has subsequently actually managed to finish several of his CPA activities faster than originally agreed, thus effectively accellerating the schedule.

It’s never possible to get enough detail down on a forum post, but from what you’ve said, I would say (specific contract clauses to the contrary notwithstanding);

The EOT is still valid in full. The accelleration of certain activities in a programme (even CPA activities) cannot normally be used by the client to issue a "negative EOT" unless agreed with the contractor (for which he will lilkey want compensation)
That does not mean, however, that prolongation costs are due should he manage to complete earlier than the new contract completion date provided by the EOT (he can only claim what he actually spends), only that the client can’t levy LDs or other charges.
If the accelleration was apparant before the EOT was applied for then it’s possible that the contractor has demonstrably lied to you, which is somewhat different.
If the contractor has spent resources to achieve these accellerated dates without approval from you to do so then he has done so at his own cost.

In principle, the contractor is responsible to mitigate losses due to the client impacts as far as he can without cost to himself. Thus you can argue that if the contractor has managed to catch back a month (especially if he has done so without cost to himself) he should finish a month earlier than the EOT date and thus cost the client less in prolongation costs, but I’m not sure on the voracity of that.
Khalil Masoud
User offline. Last seen 12 years 24 weeks ago. Offline
Joined: 14 Oct 2007
Posts: 19
Groups: None
Dear Andy/Rodel;

I will try to make it simple: some modifications were in the design were added to the originally agreed upon design documents. These modifications are minor and works can proceed without the need for redesign (According to the Engineer). However, the Time Impact schedule recieved from the Contractor is showing the required re-design on the virgin copy of the baseline with expected delays for relevant activities and the project accordingly. Following is a summery of events:
1) The E.O.T claim was submitted June 2 2007 expecting activities planned to take place (August 07 and after) to be delayed due to the "said" required redesign.
2) The updated programme was submitted October 31,2007 showing 100% complete for activities expected to be delayed up to December 2007 according to the Impact Schedule
3) These activities are in the critical path
4)the date of practicle completion on the status update is much later than the original approved baseline, but this is due to another cause of delay.
5) I hope this will help summerize my idea:

A)Baseline: Drawings Submittal(May07-June07),
Construction (July07-October07).
B) Update : Drawings Submittal(May07"A"-June07"A"),
Construction (July07-October07).
C) Time Impact Schedule : Re-Design Drawings Submittal
(August07-September07),
Construction (November07-December07).

Thank you



Rodel Marasigan
User offline. Last seen 1 year 39 weeks ago. Offline
Joined: 25 Oct 2006
Posts: 1516
Khahil,

That’s a very good question. In addition to Andrew queries, thus the EOT was submitted after or before the progress on the activities expected to be late? Is the activities lied on the critical path on the original approved baseline? (The contractors might have a work around or re-sequencing the activities and reconstructing the construction methodology to catch up on the delay but that doesn’t mean that their entitlements for EOT are gone)

Rodel
Andrew Dick
User offline. Last seen 5 years 6 weeks ago. Offline
Joined: 14 Feb 2007
Posts: 295
Khalil,
It is interesting to say the least the your subbie has given you the reason to at minimum question at length his EOT. I would say the simple fact the he has shown progress on activities that were expected to be late is of concern.
Does this sub contractor even know what he is doing?

I would suggest that a simple please explain with 1 or 2 examples of discrepency between the EOT program and the latest status update back to the subbie and let him do all the work.
Afterall he’s the one that wants the EOT i assume.

Question what was the date of practicle completion on the status update schedule compared to the original approved baseline?

Andy