Hi all
please assist me in the following matter:
A recent project has been the subject of numerous (approx 300No.) notifications of potential delay and 25No. actual EOT claim submissions by the Contractor. These have largely been rejected by the principal agent, but have been overturned and awarded, in certain instances, in the subsequent adjudication process. The client has nonetheless chosen the route of arbitration to attempt to get these adjudications reversed.
My query relates to a recent adjudication award in favour of the Contractor - the adjudicator has determined that all the contractual requirements have been met in terms of the EOT submission (relevant clause and time bars met, impact to critical path shown etc) but has then gone on to offer a different interpretation/calculation of the delay duration.
To simplify the matter slightly the following example may assist:
The scope of the delay relates to additional work introduced into a nearly completed area of the works. The claim was submitted prior to the contractual PC date, with the delay events being impacted into the latest programme update prior to the issued of the new information (date the delay ceased). The forecast PC date in that programme update was PC date + 50 days (some delays subject to further EOT claims and some delays subject to contract events). The impact of the introduction of the new scope of works was shown to be PC date + 100 days. This calculation included all possible contractor mitigations.
The adjudicator has confirmed that the delay event is a client risk event but has awarded an EOT based on his calculation of the duration by subtracting the forecast 50 day delay from the actual 100 day delay - in other words he has calculated the delay duration as the difference between the forecast PC date at the time of delay submission and the forecast PC date of the delay impact assessment, rather than the difference between the Contractual PC date and the forecast PC date of the delay impact assessment.
Surely the forecast PC date in a progress update has no contractual relevance to a delay determination other than being the basis of deciding if the contractors entitlement exists (ie the delay event extends beyond the contractual and forecast PC date). The calculation of the delay duration should be the extent beyond the contractual PC date rather than the extent beyond the forecast PC date.
your comments will be gladly received,
Gavin