(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.
Dear All,
I would like to have some advice on the matter of concurrency. In one of our warehouse building projects the situation is as mentioned below:
Activity-1 # Erection of PEB Structure (Procured & Installed by Contractor) - Lies on Critical Path
Activity-2 # Installation of Roof & Wall Panels (Supplied by Client and Installed by Contractor) - Lies on Critical Path with FS relationship to Activity-1
Now, what happened is that the Client delayed the delivery of the 'Roof & Wall Panels' due to which 'Activity-2' got delayed but in the same time the Contractor as well delayed the 'Erection of PEB Structure' due to delay in the delivery of the same.
Furthermore, we submitted an EOT claim for the delay in delivery of Roof & Wall panels (by Client) but it was rejected by the Client's Representative stating that this delay has not affected the contractor as his works was itself delayed and by the time these panels were delivered he was not ready for its installation.
That all said, I would like to know whether it is a case of concurrent delay or not. And does the rejection of EOT by Client's Representative correct?
Thanks in advance.
Kind Regards,
Kaif Mohsin
Hi Andrew
I agree - I will close it down.
Best regards
Mike Testro
Mike,
I think the next time I'm involved in a dispute, I'll tell my client the law is not relevant and my theory will prevail as the judge will automatically believe my theory to be the right one, (mathematical rigor always prevails), and all others are wrong or inapplicable!
Contracts are an invention of law, everything to do with them is controlled by the law, any theory will be applied using and within the framework of the applicable law - whatever that theory is!
You can lead a horse to water...
Hamid - I stand by my original comment!
Mike - this thread has reminded me of the days when Charlie from South Africa posted a lot.
I think it's time for R.I.P this thread, it's going nowhere that is of any use to anyone.
Hi Anders
In most cases there are two experts assisting the court - quite often putting out opposing theories or different results from the same theory.
The judge then decides which is the most plausible.
Best regards
Mike Testro
I know you are being somewhat flippant, Mike, but that is simply not true. A legal theory acquires legitimacy from judicial endorsement, but a scientific theory advanced by an expert witness acquires legitimacy independently from the legal system: from the extent to which it conforms with "the scientific method" (falsifiability, reproducibility, full disclosure, peer review etc.).
Hi Anders
One "Experts" theory is as good as anothers until it is tested in a tribunal.
No one is going to part with a lot of money on the basis of a theory.
One thing is certain in law - a judge does not like being bamboozled by a smart arse.
Best regards
Mike Testro
PS - Isaac Newton invented the cat flap.
Andrew,
Isaac Newton's theories go in front of legal tribunals all the time - see any forensic road accident analysis, forensic ballistic analysis, forensic blood spatter analysis etc. Why do you think these theories are accepted by courts?
The only relevant relevant "legal framework" here is the legal framework for the admissibility of scientific evidence generally, as outlined in cases such as Daubert.
The "law of concurrency" in the context of a forensic scientific delay analysis only arises in the context of rules to resolve a deadlock or tiebreak in the scientific method. The analyst is basically calling on the law as a last resort... "Help! My system of analysis is unable to isolate a single cause of delay because I've got two (or more) things happening at once. What should I do? What rule should I apply to determine causation?" ... But, I think, however, the very fact that this call needs to be made at all means that the methodology is failing to model reality accurately, and is pseudoscientific rather than scientific, at least in part.
In my view, proper science can always be applied to resolve such deadlocks, and there is never any need for an analyst to have to make this last resort call on the law.
Hi Anders
You are confusing judgement and peer review.
Even Isaac relied on his contemporaries in his phrase "I was standing on the shoulders of giants"
Best regards
Mike Testro
PS - Quick trivia - who invented the cat flap?
Mike/ Andrew
Complying with Daubert (and equivalent cases in other jurisdictions) is what it's all about. See e.g. http://en.wikipedia.org/wiki/Daubert_standard ...
Andrew: ... the validity of a scientific theory (and its admissibility into court) depends on the innate soundness of the theory - not on any legal doctrine or precedent. When Isaac Newton developed his theory of gravitation, he didn't worry about what the All England Law Reports might have to say about it!!
Mike,
And the theory will be judged and applied within the framework of whatever the applicable law is.
And a theory that doesn't comply with the relevant law - isn't a relevant theory!
Hi Anders
When it comes to a dispute your scientific principles will still have to judged - hopefully by someone who understands them.
Best regards
Mike Testro
Mike, I would argue that much of John Marrin's work on the subject is seriously flawed because he fails to understand properly which conclusions can be derived scientifically (with the help of a CPM network model) and which conclusions require recourse to legal doctrine.
I would also argue that concurrent delay doesn't exist in reality as no two independent processes are ever truly in lockstep and tandem. Consider, for example, two concrete curing activities for identically designed columns on independent parallel activity paths:
Cure Concrete Column A... Original Duration 4, Actual Start [now], Actual Duration 5, Total Float 0, excusable
Cure Concrete Column B... OD 4, AS [now], AD 5, TF 0, inexcusable.
They are tied concurrently in lockstep with one another as far as the CPM model is concerned but, even for an activity as passive as waiting for concrete to cure, every molecule of water and particle of cement doesn't dry at exactly the same rate. There will always be some random variation in terms of which task is in the lead (and hence, which path is longest), even if it's only on the molecular level. The same is true of every other process. For this reason, it's perfectly sound to conclude as a matter of fact that the critical path fell 50% on Col A and 50% on Col B, giving an EOT of 0.5 days of the "concurrent" delay. That's the same as an apportionment approach, but no recourse to any legal doctrine is necessary!
Hamid,
The position of the Scottish City Inns case and apportionment was firmly rejected in Walter Lilley v Mackay [2012] when the judge decided;
"It therefore follows that, although of persuasive weight, the City Inn case is inapplicable within this jurisdiction, [England & Wales]"
Pacing is another subject altogether and again, as you point out, we need to know the wording of the contract or law of the land to see what notice provisions, etc are applicable to be able to answer your questions.
Anders, you stated;
"So I would argue that, once it can be established that CPM rather that the traditional... you do not need to give a whole lot of consideration to local law. We are in the domain of maths..."
I agree, but by your own words, before any maths you've got to establish what concurrency means under the contract, which means firstly using the contract wording/law.
Should the jurisdiction comes up with something like the following; a Canadian common law shipping case on concurrent delay; Evergreen Building Ltd v Haebler;
"I do so by apportioning two-thirds of the blame against [the contractor], particularly for his unwillingness to order the mechanic equipment. The three month delay occasioned by that alone accounts for the delay in completion. The other one third of blame is chargeable to [the Employer], particularly for his recalcitrance in refusing to accept any change quotations whatever between November 1979 and February 1980, which is the same three months more or less. His stubbornness was matched by [the Contractors] stubbornness and a stand-off resulted. The fault was unequal but they both contributed to it..."
No CPM or maths needed in this judges reasoning, just a big dose of gut feeling!
Finally, for a discussion on the two arguments about concurrency have a read of the American Association of Cost Engineers RP No29-03 Forensic Deal Analysis 2009 pages 88 & 89: Literal v Functional concurrency. Also note that the methods of delay analysis described in this document have a section H which reads along the lines of:
H, Identification & Quantification of Concurrent Delays and Pacing:
1. Identify and understand all related contractual language
2. Determine if literal or functional concurrency theory is to be used...
Contract / law is always first thing to consider, everthing else flows from these.
In Malmaison Case, UK (1999) it was agreed by Both Parties and endorsed by the Court that Contractor will be entitled to EOT for a Relevent Event notwithsatding its own concurrent delays. This has been the position in English law (in majority of the cases) since then and the reason is if Contractor is NOT entitled then Client will claim LDs, now it is unfair that Client should claim LDs while being responsible for a Relevent Event at the same time ....
This is the case of EOT but this is not the same for loss and expense claim, Contractor will not be entitled for loss and expense until he is able to prove (BUT-FOR TEST) that he would not have suffered such losses and expenses in the absence of Relevent Event ....
Scottish Courts (in 2007) brought the concept of Apportionment which is not in congruence with Malmasion case .... however we jsut do not have to see the judgements but also to see the nature of the disputes and circumstances under which the dispute arises on the project under which the court decides ...
First of all we need to see the relevant clauses of the Contract (there may be express provision of non-entitlement of EOT under concurrent delays) to which parties have agreed, then we need to analyse the nature of concurrent delays and then apply the fair & reasonable approach for decision ....
Now in the question i will be interested to know did Contractor informed the Client that Contractor will slow the progress of the works because the Client will provide the material late and did Client allow that ! OR Did Client issue a notice/letter to Contractor of its slow speed and running behind the schedule and ask to meet the target completion date ? What was the communication being exchanged under the circumstances ?
After finding answers of these questions and more alike one will be in better posotion to judge the situations and assess the faults of both parties and then whatever the decisions will be made it is expected fair and reasonable.
Hope it clarifies the situation to some extent....
regards
hamid
Hi Anders
Experts who talk on the subject of Concurrency all state that true concurrency - where different events occur in the same time frame and cause an equal delay to the project - is a very rare occurence.
They then go on to posit opinions on what to do when this very rare occurrence may occur.
In my experience the chance of True Concurrency occurring in a construction dispute is Zero.
Cases of concurrency occur when two or more delay events overlap in a similar time frame and have different effects on the completion date.
There is no firm ruling in common law for this situation except that apportionment is forbidden.
Mr John Marrin QC states that even if the Contractor's concurrent delay extends beyond the Employers delay then the Employer must award an EoT for his delay or put time at large.
This position comprises Chapter 6 in my Ebook Principles of Delay Analysis.
Best regards
Mike Testro
The common law traditionally deals with the problem of which of competing chains of causation is the "true" cause via the concept of dominant (UK) or proximate (US) cause. When competing causes have equal causative potency (in the opinion of the court), they are said to be "concurrent causes." Concurrency here is a tiebreaker concept in law - the special rule you need to break the tie between competing causes. These definitions are all very legalistic and the exact definitions depend on the jurisdiction you are in.
In the case of projects, however, we are replacing the legal determination of the "winning" cause with a mathematical system of calculation - the "winner" is the cause associated with the path with zero slack (or equivalently, the longest/ critical path). That means that the definition of "concurrency" similarly acquires a mathematical definition to replace the legal definition - concurrency here is when the two "competing" paths are equally long for a sustained period of time. Concurrency equates to "mathematical indeterminacy" in this context. A "mathematical indeterminacy" means a mathematical problem where further information is required to produce a single answer (e.g. x^2 = 4, solve for x).
So I would argue that, once it can be established that CPM rather than the traditional dominant/proximate cause concept is acceptable to the court to determine causation of delays, you do not need to give a whole lot of consideration to local law. We are in the domain of maths not law, and maths is the same for everyone.
In the original example here, there is no concurrency issue at all as there is no sustained period of time where there is more than one longest path through the project. If there were two paths that shared longest status for more than an instant, then that is concurrency and you would need a special rule to resolve the tiebreak. But here you do not.
Finally, a method of delay analysis that models a tranche of changes as happening all at once in an instant when in reality they occur consecutively or gradually will sometimes fail to distinguish between competing causes. But that is because the methodology chosen does not accurately reflect reality. It does not mean that there is genuinely "concurrent" delay.
Anders',
Troll or not, but as Mike put it; "we expect in PP posts a modicum of respect and decorum".
And to keep Hamid happy and briefly describe how to deal with concurrent delay:
The importance of concurrent delay is primarily as an legal argument so the first place you should look to find out what it is and how to deal with it, is in the words of the contract. If nothing is found, (often there isn't), then look to the law of the contract as different jurisdictions define and deal with concurrency in different ways.
Even within the same system of law, e.g.. in common law there are differences, for example, in the UK, concurrency is dealt with differently in England & Wales compared to Scotland. In federal countries like the US you will find differences between the laws of some states and even differences in federal cases. The civil codes of the Middle East are vague at best and if you have to revert to Sheria law then anyone's guess is as good as anyone else's! That's not criticising that legal system but as there is little or no recorded case law to refer back to, you're "starting from new" with the arguments in every case and the judge will decide it the way he see's as right without reference to previous cases, etc. The outcome is not very predictable!
In any jurisdiction you will be very lucky to find a definition of what concurrency is. The discussions and arguments between concurrency being merely parallel delays in time and CPM critical competing delays will rage on, and on, and on, ...
The most likely scenario is that Anders position will be argued by the contractor, (2 or more critcal delays based on CPM), whilst the employer will be supporting the parallel delays in the same time period position, (respectively known as the strict and broad definitions of concurrency).
Then, depending on the definition you're supporting, you'll return to the wording / law of the contract to find out how to deal with it with regard to an extension of time and other related subjects such as compensation and LD's.
Hope that helps.
Troll
Oh please. Engaging in criticism, argument and debate, exposing fallacies, and challenging the credentials of those who proffer expert opinions on an open forum such as this is not rude. It is perfectly fair game, especially when it comes to competitors who are exploiting the forum to promote themselves and profit commercially.
Having said that, Hamid, I agree with your dim view of Andrew's contribution - he is just being a troll!
Hamid,
I think the clue is to found in Satish's statement - "Dear Anders, I have seen your statements below. They are very rude..."
Andrew
I will only say that your unpolite and disrectable comments ruined the good discussion which would otherwise conclude some thing.
What is the problem with many humans ? i don't understand.
Hamid
Hi Mike, it's a long time since I've been on this site, (let alone posted anything), and having read this thread I now remember why!!!!!!!!
Hi Anders
It is becoming apparent that we live on different planets.
Best regards
Mike Testro
Yeah, it does underline that what you see in the likes of Primavera is a really just a vastly simplified version of what is called “constraint programming”. Constraint programming can be used to solve all sorts of scheduling problems other than just project programmes (for instance, planning timetables of classes at schools, planning which planes go to which terminals at the airport, planning rail timetables etc.). It can also be used for other types of problems: for instance, Soduku puzzles. It includes “artificial intelligence” to solve what computer scientists call “NP-hard” or puzzle-like problems.
In the world of constraint programming, everything is framed as something to be optimized (like schedule X set of activities subject to Y “constraints” so that the project is completed as early as possible).
It is very jargon-heavy…
time = what they call an “interval variable”.
activity start time = a “decision variable”
project duration = “makespan”.
task duration or the lag of a logic link = a “temporal constraint”
calendar = an “availability constraint”
logic link = a “precedence constraint”
maximum resource utilisation = a “cumulative resource capacity constraint”
The likes of Primavera will return an optimal configuration of tasks for a single instance of clock time (i.e. the “data date” or “time now”), which is a perfectly 100% mathematical and deterministic calculation. To measure delay properly, however, you need to tweak it so that it aggregates and accumulates measurements of delay across the entire range of project clock times. This is also 100% mathematically deterministic, with only rare exceptions!!
Hi Anders
Looked at it and did not understand any of it.
Best regards
Mike Testro
Satish and Mike,
If you want to gain a better understanding of the mathematical and scientific rigour that underlies construction scheduling (and therefore the measurement of delay), I think the documentation on scheduling in general (and the "house building" example in particular) for IBM's ILog CP Optimizer software is an excellent starting point. See e.g....
http://pic.dhe.ibm.com/infocenter/cosinfoc/v12r3/index.jsp?topic=%2Filog...
Kind regards
Dear Anders,
I have seen your statements below. They are very rude. You may be an expert in this field. Also you may have your own idea of what delay analysis is all about (based on the people who have qualified you). But that does not give you the right to say someone else is wrong (The father of any field (of science) is not qualified in that field, it always starts with 0 qualifications, so leave qualifications aside). You (like me) need not agree with others ideas but you can always put them in a better way. Publishing papers and getting peer review for your books is a mark of a man who is not confident about what he is saying, so he wants four others to say Yes! along with him, I'm joking.
Science upto the 1900 looked good there is something of utilitarian value, science was studied with some physical experiments. After that there was too much mathematics, with a tint of spirituality scientists started thinking in 10-20 dimensions but nothing new came to the world (with the exception of a plethora books).
Conclusion:
As an end user, for me IT should work, it doesn't matter whether it is mathematics or physics or Art. Further, the danger of engaging a mathematical method is that it will be a deterministic approach. It gives unbiased result. Who wants an unbiased result? I want a result in my favor and that is convincing to the other. After doing all the stuff and getting a result against myself , isn't it foolish? Mike has said it right, it is a Dark Art. It should depend on where I strike the argument first.
Two suggestions for you anders with all love.
1) Keep your self open to others ideas.
2) Peace Peace Peace.
Regards,
satish
Hi Anders
My favourite quote in respect of delay analysis is from Robert Burns "The best laid plans of Mice and Men gang oft aglee".
My approach to forensice delay analysis is simple.
1. Thoroughly understand the Contractor's original intentions in respect of construction sequences and durations.
2. Test the concept and make adjustments if flawed.
3. Endeavour to understand when - why and how the construction process changed.
4. Ascertain - if possible - what actually happened.
5. Select the best method - or combination of methods - to demonstrate cause and likely effect of changes.
(There are apparently at least 18 to choose from)
6. Remember at all times that I am creating a theoretical nexus that can be demolished with just one undiscovered fact.
It can be likened to a "join the dots" cartoon where I am putting in the dots but do not know what the picture is going to be.
You can of course pre determine the picture and set the dots accordingly and you can probably work out a mathematical formula for the dot placement.
Best regards
Mike Testro
I think forensic scheduling (a.k.a. "delay analysis") is really just part of what the engineering profession is about.
Engineers do a lot of different things, but the very core of engineering is setting up mathematical models of the physical characteristics of something to be constructed or manufactured, making changes to that model, testing the changes, and iterating the model towards an optimal or near-optimal design. Some professional judgement, if not intuition, is required to induct the model in the first place, and then to choose appropriate iterative steps.
The only real difference between that and forensic scheduling is that in forensic scheduling you are modelling mathematically the procedure of constructing something rather than the actual substance of the thing being constructed itself. It’s a procedure-substance dichotomy.
But that, I think, is still very close to the core of what engineering is about (although you could make a case that appropriately educated architects can be considered equivalent to professional engineers on building projects for these purposes).
Also, some professional judgement is needed and nobody has yet got the mathematical formulation for delay analysis completely right. But that doesn’t mean that it ceases to be a science and should instead be treated as an art - it just means that the science has not been fully settled!
Hi Anders
The quote "Dark Art" is from the book About Time by Lowsley & Linnett.
If you believe that delay analysis is a science that can prove everything by formulaic rote then well done - keep going.
Good luck with your DelayMaster software - if it does what it says on the tin it will put us delay analysts out of business.
There are no formal qualifications for delay analysts although the PP guild is having a stab at it.
The most useful qualification I ever achieved was GCE Carpentry O level although the Institute of Building recently invited me to apply for a Fellowship.
I continue to get commissions on the basis of my reputation and experience.
This exchange will stop now.
Any more derogatory comments will be deleted.
Definitely no respect
Mike Testro
Mike,
I think the fact that you describe this field as an "art" rather than a science speaks volumes...
Exactly what professional engineering qualifications do you have (given that forensic scheduling is a sub-branch of engineering)??
What legal qualifications do you have (given that you also dispense a lot of legal advice on this forum)??
How many times have your publications been published in peer-reviewed journals?
How many times have your publications been cited in peer-reviewed journals?
How many times have your publications been quoted with approval in published judgments?
If you want to be treated with respect, you also need to treat the discipline with respect.
Kind regards
Hi Anders.
In future please engage brain before operating keyboard.
What we expect inn PP threads is a modicum of respect and decorum.
If you had done a little research you would have dicovered that I am an expert delay analyst - expert witness - freelance consultant - practising delay analysis over the last 22 years.
I am the author of several books including Principles of Delay Analysis.
In my time I have learnt that there is no fixed approach to the "Dark Art" of demonstrating cause and effect of delay events - it must be flexible to suit the circumstances.
My approach is that the method has to be so simple that even a Judge can understand it.
Your fixed approach to set systems is well out of date.
I willingly share my knowledge and experience on the PP forum but if you do not want to take advantage then that is your choice.
Still no respect
Mike Testro
Well yes, Mike…
This website is probably the first thing that comes up when people search the internet with problems that touch on this field. Often, many millions of dollars are at stake. It may well be the first port of call for many worldwide, especially those who are seeking to gain knowledge informally, with or without additional professional advice.
So I am concerned to see that this area of forensic science is not misrepresented or debased.
My concern is that you seem to be giving out misleading advice that you are not qualified to give, drawing on concepts in an obscurantist fashion that you don’t fully comprehend, and doing so in a manner that belongs within the realms of pseudo-science rather than science - much like an aromatherapist or reiki practitioner dispensing free advice on a medical website to people on how to fight cancer.
Anders
I don't know what charm school you went to but you should consider suing.
Your thinking is at least 5 years behind the curve - I would adviise you getting some serious CPD under your belt before you start throwing rebarbative comments around.
No Respect
Mike Testro
This and similar cases may be resolved entirely by the application of critical path theory, accurately applied to the contractor's schedule to simulate the timing of the project, in a manner that is consistent with the facts of the case.
"Concurrent delay" refers to very rare circumstances where the resolution of cause and effect via critical path theory is impossible due to a mathematical indeterminacy - not the case here.
No recourse to any other principle, doctrine or rule of law is necessary or appropriate here - and that includes all nonsense about "time frames", "dominant delays", "pacing delays", "known float", "winner takes all", "greater delay" and Sharia law!!
Hi Anders
Thank you for your valued input - unfortunately I do not recognise your definitions.
Dominant Delay is when two or more delay events occur within the same time frame and each delays the completion date by different degrees. The Dominant Delay is the one that finishes last AND causes the Greater Delay
It is a sort of Winner Takes All and is a direct result of an Impacted Delay analysis.
If the contractor's delay is dominant he is still entitled to an EoT up to the point of the Employers Delay but no costs.
Pacing is when either party is using up known total or free float to preserve resources.
The key point is KNOWN float - if the Employer had announced the delivery date of panels then the Contractor should make best efforts to be ready for them. The delayed delivery is still grounds for an EoT.
Regarding Qatar jurisdiction thes points are covered in the Civil Code:
Unjust Enrichment
It is a principle under Sharia’h law and stated in the Qatar Civil Code that a party not be able to, when carrying out any or/ all of his obligations, be enhanced by performance carried out unfairly and to the detriment of the other party.
Article 220 of the Qatar Civil Code states “Every person, even if non-discerning, who enriches without a just cause on the account of another person is liable within the limits of what he has enriched with to compensate that person to the loss he has suffered. This obligation shall remain even if the enrichment later ceases to exist.”
Further, the effect of the unjust enrichment is detailed at Article 201(1) which states that “The damage which the person responsible for the unjust act is committed to compensate for is determined by the loss which occurred and the profit that was lost, provided it was a natural result of the unjust act.”
All of which is subservient to Sharia Law which requires both contracting parties to act in utmost good faith each to the other.
Best regards
Mike Testro
Hi Anders
Thank you for your valued input.
So it is the Qatar jurisdiction that we are talking about.
In that case we must refere to Civil Code on unjust enrichment:
Article 220 of the Qatar Civil Code states “Every person, even if non-discerning, who enriches without a just cause on the account of another person is liable within the limits of what he has enriched with to compensate that person to the loss he has suffered. This obligation shall remain even if the enrichment later ceases to exist.”
Further, the effect of the unjust enrichment is detailed at Article 201(1) which states that “The damage which the person responsible for the unjust act is committed to compensate for is determined by the loss which occurred and the profit that was lost, provided it was a natural result of the unjust act.”
And the fall back position is Sharia Law which requires both parties to an agreement to act in the utmost good faith.
My definition of "Pacing" is to conserve resources so as to complete a section of work on or before it has to be completed - make use of known float both free and/or total.
Best regards
Mike Testro
Mike,
You seem to be very confused, as you are incorrect in virtually every thing you say…
(1) This is not a matter of “dominant” delay. It’s a matter of critical path theory. Critical path theory, as a more objective and scientific method of resolving questions about causation, replaces vaguer notions that courts and tribunals would otherwise have about which of several events is the “dominant” cause of an effect - in this case, the overall terminal delay to the project.
(2) Pacing is when one delay is a knock-on effect of another so the two delays are not independent of one another. That is not the case here, by definition. It’s irrelevant.
(3) The employer does not have any generalised obligation to deliver his supplies “as soon as practically possible”. The relevant obligation is not to impede the contractor’s progress (a.k.a. cause an “act of prevention”).
(4) The employer is entitled to enforce the deduction of LaDs, absent any EOT entitlement by the contractor. The contractor has no EOT entitlement because it has not suffered any act of prevention.
(5) There is no concurrency problem because the two late deliveries do not impact the contractor’s schedule at the same time. The contractor delay impacts the schedule while the first activity is underway. The employer’s late delivery does not affect the schedule at all.
(6) Even if there were a concurrency problem, John Marrin's views on how English law might approach it are not applicable to Qatar.
Kind regards
Hello Mr. Anders,
Thanks for dropping by. Initially, I was under the same impression as well and that’s why I raised the query here to know from the experts. I think your reasoning is very well answered by Mr. Mike.
Thanks Mr. Mike for the reference to John Marrin’ s paper. I will definitely go through to it.
Best Regards,
Kaif Mohsin
Hi Anders
Your position relies on two things:
1. The dominant delay argument.
2. Employer's Pacing.
Neither of which are valid arguments to enforce the deduction of LaD's.
The Employer's obligation is to deliver his supplies as soon as practically possible.
If delivery is late he cannot deduct damages up to the point of delivery even if the contractor cannot make use of them.
The argument can be turned around by the Contractor declaring that he was "pacing" his work waiting for the delivery of the panels.
See John Marrin's SCL paper "Concurrency Revisited"
Best regards
Mike Testro
Kaif,
No - there is no concurrent delay. The rejection of EOT is correct. The deadline by which the employer must provide the panels is the start node of the later activity. The contractor procurement delay on the earlier activity postpones that start node. As the employer met its deadline, there is no act of prevention for which an EOT may be claimed - the employer has not hindered the contractor's progress in any way.
Dear All,
Yes, the baseline schedule did contain the delivery of these items explicitly and it was approved as well. Also, the Client was notified and the issue was raised time and again about the delay in the delivery of these panels.
Though the Client is acknowleding that they delayed the delivery of the panels but they are refuting the EOT claim saying that our contract agreement doesn’t deals with concurrency and its consequences.
I completely agree with all of you that our good relations didn’t prevented them in applying LAD’s then why we should turn back on claiming our rights through arbitration or litigation. But in the end it’s up to our top management to decide and as said before they are not considering that option at all purely due to commercial reasons. As per your suggestions, in the meanwhile I will try to submit our claim which will be beneficial on our part for our future negotiations with them.
Thanks to everyone for sharing your expert opinions.
Best Regards,
Kaif Mohsin
Hi Kaif
Your approach is a purely commercial one but in future projects you are now aware that the Employer cannot be trusted to operate using "utmost good faith".
I would not back down to this type of blackmail - he needs you more than you need him - he will run out of contractor's very soon.
At least submit and quantify the claim for "information only" so that he knows how much he owes you next time you negotiate a contract.
Best regards
Mike T.
Hi Kaif,
As pointed out by the Gents, I quote from a a case the following "The essence of the prevention principle is that the promise cannot insist upon the performance of an obligation which he has prevented the promisor from performing".
I assume that the baseline programme was forming part of the Contract, hence, the reference to the delivery of material by the client should be dealt with in that way and therefore, after the client delays, he cannot insist on having the same Date for Completion as per Contract.
In regard to the LAD, in your case and to avoid destroying the relationship with the client, I'd submit the EOT and the associated financial implications claims alongside the EOT request, this way I'd give the principals an opportunity for negotiation.
Otherwise, mediation then litigation (depends on your contract mechanism) should follows, just be aware of the time bars
Thanks
Karim
Dear Moshin,
Disputes arise during the course of a contract. The long relationship with the client did not prevent him from leving LAD. Why should it prevent you? It is all a matter of business and our contract. I am just sharing you my thought, but not that you are the decision taker.
Regards,
satish
Dear Moshin,
If the program is approved, then that itself is the proof. Did you show the delivery of Roof and Wall panels from client as a seperate deliverable in the program? Further, during the time of delay did you address the issue to the client regarding the delay in supply? Is he a private client or a Government client??
Also, some points that have to be analysed:
1) Leaving aside the dependence shown in the program, what is the actual dependence of the A1 and A2. Are they sequential? interdependent or independent?
2) What are the points over which the client is quashing your claim? (try to make those points weak).
Address the client one last time, if you can build the proofs in your favour on the above points, including the LAD amount and a claim of the interest on the amount recovered under LAD.
as LAD already levied, most probably you have to be ready for addressing to Dispute Board/Arbitration/court. I mean you have to compile every thing perfectly.
Regards,
satish
Thanks Mr. Mike for your prompt and kind reply. The situation here is that our employer is not willing to acknowledge this simple and open fact. And since our company have a long history of good relationship with them so, we are trying our best to solve the issue amicably. And to be honest going for litigation is not even on our minds considering our future relationship with them ;-)
Thanks once again for all your expert opinions.
Best Regards,
Kaif Mohsin
Hi Kaif
It is a common theme that an act of prevention by an employer will require an extension of time for the contractor.
The alternative is to set time at large.
This is true in every jurisdiction that I have worked in.
If your employer wil not acknowkedge this simple fact then a formal dispute will be necessary.
Best regards
Mike Testro
Thanks Mr. Satish & Mr. Karim, for your helpful advice. But one thing I would still like to know is that though the roof & wall panels for Activity-2 (as mentioned in my initial post) were to be supplied by the Client but there is/are no specific date/s mentioned in the contract for their delivery. So, our claim as a contractor that the Client has delayed the delivery of these panels is based on the approved baseline schedule dates. Hence, in this case can we still call it a case of concurrent delay?
As stated before as well that we made an EOT claim stating that this is a case of concurrent delay but it was rejected saying that our contract does not define this type of delay and its consequences. I did gave reference to the SCL protocol but it was refuted as well that it is not obligatory to follow that since, it's not a part of the contract. Finally, LAD's have been applied as the project got delayed. Is there anything that can be done to justify our claim and get back our lost money (apart from dragging the Client to the court)?
Best Regards,
Kaif Mohsin
Hi Kaif,
The SCL protocol states that where true concurrent delay occurs (i.e. two events at the same time), Contractor should be entitled to EOT for the Employer delay to completion.
It also states that where Employer Risk Events and Contractor Risk Events occur sequentially, but the effects of which are concurrent, Contractor Delay should not reduce the amount of an EOT as a result of Employer Delay.
Hence, your case is more likely to be a two distinct delay events having a concurrent effect to be dealt with the 2nd case.
Anyway, you should refer to your contract and use the SCL protocol as a guideline only.
Karim
Dear Moshin,
If both delays subsist during the same period of time then they are called concurrent. I mean there should be a common time interval of delay for each to blame the other.
I feel client is wrong, You can contest for EOT but without any cost compensation. Had you completed A1 as per schedule even then client would have delayed the work.
and for concurrent delays, client cannot levy any LD and contractor is not eligible for overhead/idle costs compensation.
Further, if there is any time period during which you were idle after completing A1 for want of material from client, you can also claim for cost compensation for idling/overheads only for that idle period.
regards,
Satish
Email: PPadmin@planningplanet.com
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