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Extension of Time Claim

24 replies [Last post]
Hatem Hussen
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I am newly assinged to a project with a total delay 193 days
there are a lot of concurrency events in the project mean a lot of varation orders and at the same time the contractor has his own delay
its not clear in the contract who owns the float and which method to use in analysing the delay
there is an argument between the contractor and the consultant where the contractor trying to use Time impact analysis and the consultant is trying to use impacted as planned
Note( the baseline program is not approved and the project end date is already expired)

Replies

Alisahry Jalal
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Hi

i just want to ask how to prepare EOT if the approved baseline programme is not logic. i mean there is a high float.

Is there any method to prepare EOT without approved baseline?

Thank You

Mike Testro
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Hi Charleston

You misunderstand - whether I am paid by the Contractor or the Client my task is to work independantly and without influence.

If a Contractor tries to conceal his own delay events he WILL be found out and his case - whatever its merits - WILL collapse.

It is essential that the whole story be presented and then rely on the rules of concurrency to secure a just and reasonable result.

Best regards

Mike Testro
Charleston-Joseph...
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Mike,

In your post It is very clear you work for the client side.

That is the best thing to do.

In my previous post, I’m referring to work in the contractor side, meaning, contractor claim presentation will not show detrimental concurrent delay, the other way around is the work of an idiotic contractor forensic claim analysis.

Cheers,
Charlie
Mike Testro
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Hi David

Precisely.

Best regards

Mike Testro
David Bordoli
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I also haven’t read the whole thread either… just the last couple of postings.

"Why will a contractor forensic claim specialist show in TIA that the contractor was (in) delay?"

I thought the first step in TIA was to update the programme with achieved progress to the point just prior to the delaying event happening. This means that any default by the contractor, for instance ‘delay in procurement of long lead items, delay in mobilization of essential personnel, delay in submission of shop drawings, etc. etc. etc’ will manifest themselves in the progress reported. Progress data is usually a matter of contemporaneous record so not so easy to fudge. Anyone doing so is very likely to get quickly found out in almost any tribunal and then their expert opinion, whether or not good or bad on the whole, will be questionable.

Whilst I dislike quoting Pickavance, with regard to Time Impact Analysis and concurrency (which I think is where the thread started) at paragraph 14.319 he says:
”This simple contemporaneous approach to delay analysis allows assessment to be made of three important aspects, which tend to be unavailable with other methods:
1. the actual state of progress at the time the event was initiated;
2. the changing nature of the critical path as a result of delays to progress and acceleration; and
3. the concurrency of delays to progress and to completion.

Regards

David
Hatem Hussen
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HI Charleston
Am not from the contractor side am from the consultants side
Mike Testro
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Hi Charleston

You asked "why will a contractor forensic claim specialist show in TIA that the contractor was (in) delay"

Because his duty as an expert is to the tribunal - not the contractor or any other party who is paying him - to assist the court in reaching a just conclusion.

On a more practical level all credibility is lost if I do not include contractor culpable delays in the analysis.

If the Employer knows of contractor culpable delays and I have not accounted for them then my work is worthless.

Best regards

Mike Testro
Charleston-Joseph...
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Hello Mike,

Hatem wrote: there are a lot of concurrency events in the project mean a lot of varation orders and at the same time the contractor has his own delay

This scenario is very common in projects: from design stages (design consultant saying lots of variations from clients original concept), procurement (project managers saying consultant replies to tender querries take too long for tenderers to make competitive bids hence extension of tendering period) to construction (variation orders, change SOW, etc.)

The smart ass will not show any shit or dirt for someone to throw back, meaning, why will a contractor forensic claim specialist show in TIA that the contractor was delay in procurement of long lead items, delay in mobilization of essential personel, delay in submission of shop drawings, etc. etc. etc. I can populate this thread with common delays by contractors that will never be shown in TIA by the contractor. The contractors are not holy or blameless in project delays.

This is what I’m trying to add value to hatem presentation to Extension of Time Claim.


regards,

Charlie


Mike Testro
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Hi Charleston

Welcome back to the forum.

As usual you have jumped in without reading the whole thread.

Go back to page one and then if you have anything worthwhile to add on the subject of concurrency I will be pleased to read it.

As will Atem.

Best regards

Mike Testro

Charleston-Joseph...
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HI Hatem,

BAck to basic:

The project is 193 days delays (calendar days or working days, maybe this is calendar days) and project progress is 80 %.


Typical in growing economy driven by construction boom.

Since you work in the contractor side, your strategy is to get extension of time, with no penalty LAD and maybe some bonus, associated cost in the extension of time.

The fundamental problem is concurrent delays. Since the onus is not with you to present concurrent delays, then, you present your case without concurrent delays. Meaning, let the consultant prepare their analysis of concurrent delays and you will attacke the consultant case against you in such a way that it will not gain any credential.

I’m saying this because it is not really clear what really happen in your presentation. Since basically, as contractor, it is seldom maybe nil, contractor will present concurrent delay in contractor TIA claim. and knowing that consultant are lazy by nature in justifying their word as spoken, i can’t picture how concurrent delay comes into picture.

Unless some simplistic mind is working behind the scene????

Regards,


Hatem Hussen
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HI Mike
Thanks very much
Mike Testro
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Hi Hatem

The form of contract does not provide concurrency rules.

Previous case law prevails.

Best regards

Mike Testro
Hatem Hussen
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Hi Mike
Thanks for ur responds Actually our contract is under the fidic
Mike Testro
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Hi Hatem

You are now deep into delay analysis territory and you need expert assistance which cannot be done by remote control.

The rules of concurrency are fluid in the UK and I do not know how the law stands in Qatar however:

If there are two concurrent periods of delay that occurred within the same time frame then the delay that starts first and ends last is the dominant delay - the other delay is secondary.

The difficulty is when the secondary delay goes on after the dominant delay when it becomes dominant for the overlap period - are you still with me?

You have to do the full analysis with all events - using up the float as you go - to get the complete picture.

Generally if the Employer caused the dominant delay he pays the contractor for the EOT and costs.

If the Contractor causes the dominant delay he gets no EOT and no costs and pays LAD’s.

I realy can’t help you any further.

My advice is to get expert advice - If I can help in this way please get in touch.

Best regards

Mike Testro.
Hatem Hussen
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Hi Mike
I am confused now sinice i have Concurrency and there are a lot of Variation orders from the client and at the same time there was a delay by the contractor
so my question is why should the owner burden him self by the contractors delay
so where to look at the float in the baseline schedule or in the updated programme .
and who own the float?
thanks for your concern
Mike Testro
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Hi Hatem

A delay analysis starts with the baseline programme that was in existence at the start of the project.

Whatever float is available in that programme will be absorbed during the delay analysis provided the events are impacted in chronological order.

Best regards

Mike Testro
Hatem Hussen
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Thanks Mike
but what about the float is it as we discussed with Sherif befor that i will look at the float on the baseline schedule or at the updated schedule
thanks and regards
Mike Testro
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Hi Hatem

Time Impact is the best method for both sides in respect of completed work.

The last 20% has to be Impacted as Planned but I would wait until the first 80% has been analysed and then Impact any remaining events on the uncompleted works.

I would be a bit wary awarding an EOT on the Impacted as Planned end date - particularly if it cannot be reduced later.

Regarding the Non Approved programme - it is very easy to "Rig" a programme so that it distorts the impact of events.

Check for things such as:

Artificial restraints
Lead Lag links
Long - Multi Task Activities - ie "Foundations up to DPC" etc.

As a rule if there is more than 1 critical path it has been rigged.

If your software allows check the times on the date columns to see if they are whole days.

Check the calendars and work patterns to see if there are any hidden stoppages.

Make sure that any "hidden" activities are exposed.

Best regards

Mike Testro
Hatem Hussen
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Thanks Sherif
Hatem Hussen
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Thanks Mike
but the project isnt finished yet to have the all the as built records
its about 80% and do u think to use the time impact is fair enough for both sides ( contractor and owner)
Mike Testro
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Hi Hatem

Who owns the float was the subject of a very lengthy thread earlier this year - it was finally resolved as the float belongs to the project on a first come first served basis.

A delay event has to use up all float before it affects the critical path.

Provided the events are impacted in strict chronological order then the float will be allocated correctly.

Regarding the method of analysis then since the works are complete a Time Impact Analysis is the most suitable provided the As Built Records are up to it.
Impacted As Planned is not suitable at this stage as it will not reflect waht actually happened and - as far as the Employer is concerned - will most likely result in a longer period than required.

Not having an agreed programme as a baseline could be a problem in some forms of contract - in any case it is not too late to agree one now - why not bring in an independant planner to review the original programme and turn it into an agreed baseline BEFORE any form of analysis starts.

Concurrency is a real issue as - in the UK at least - the rules are constantly evolving.
However following the "Dominant Delay" method will keep things more or less on track.

I hope this helps

Best regards

Mike Testro
Sherif Fam
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Exactly.

Suppose there was float of x days in an activity. Due to delays from the contractor in other activities; this float is reduced. Then, the client comes and wants to change the item. Why shall he burden the "float reduction" if it is caused solely by the contractor.

You look at the updates to decide "who reaches the activity first"; in order to decide who owns the float of the activity.

But take care of "concurent delays"; where there are parallel delays from both the contractor and the client in the same time period. This case is very common; and it will have lot of analysis and negotiations.

Regards,

Sherif
Hatem Hussen
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Thanks Sherif
You Mean that i have to look at the float of the activities in the baseline program not in the updated one
then who use it first gain it first
thanks
Sherif Fam
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Hatem,

The issue of "baseline program is not approved and the project end date is already expired" is a contractual issue and a serious one at this stage. First the program has to be approved (maybe a compromised mutual solution between the contractor and the consultant).

Regarding the float owner; generally it is always vague area; unless specifically stated in the contract conditions. In my personal opinion; and as I saw it before; the following rule may apply: "whoever reaches the activity first; owns its float".

For example; floor finishing; if the contractor did not start the activity yet; then the client owns its float; and he may instruct any variations related to it; and consider its float in any claim raised by the contractor. On the other hand; if the contractor started the activity (or proved that he ordered the material or mobilized the resources for it; started working on its submittals and shop drawings, etc.); then the float is his side; and he should base his claim accordingly.

Again; this is my personal opinion.

Regards,

Sherif