Updates to the SCL's Protocol

13th September 2016 | By TBH

Updates to the SCL's Protocol

The Society of Construction Law (“SCL”) published its “Delay and Disruption Protocol” (“the Protocol”) in October 2002. The Protocol has been widely referenced to support a chosen delay analysis technique for various types of projects and contracts. In particular, the Protocol’s preferred delay analysis methodology is Time Impact Analysis. However, this relies on the use of proper critical path method (CPM) programming and it does not confirm whether the forecasted impact did in fact eventuate which causes a problem when needing to determine actual delay or damages.

The Society has initiated a review of the Protocol. In July 2015, the Society issued Rider 1 to the Protocol in order to address two of the issues identified, being:

1. “Whether the expressed preference should remain for time impact analysis as a programming methodology where the effects of delay events are known”

2. “The menu and descriptions of delay methodologies for after the event analysis – including to incorporate additional commonly used methodologies.”

Within its Section 4, Rider 1 removes the preference for a particular delay analysis methodology where that analysis is carried out time distant from the delay event or its effect. It recognises two of the more common and traditional methods of delay analysis being Time Slice Windows Analysis and Longest Path Analysis.
In addition to these two additional CPM programming based methods, it also recognises some of the other methods that do not rely on a CPM programme for their analysis such as; summary level as-planned vs as-built analysis; time change analysis; line of balance analysis; resource curve analysis; and earned value analysis.
Instead of identifying a preferred methodology, the Rider now identifies criteria and factors that should be considered when selecting and applying the appropriate methodology. In choosing a methodology, it is emphasised that the result of the delay analysis must not divorce itself from the contractual requirements, facts and common sense.

In addition, and importantly, Rider 1 offers guidance towards overcoming the obstacles to dispute avoidance and resolution, such as:

  • Encouraging ‘good faith’ with cooperation and collaboration by the ‘project team’ to identify and manage changes and delays to the project;
  • Using timely notices to resolve and mitigate delays and not just as time bars and penalties;
  • As early as practicable after the delay event, determine the liability and criticality of a delay event and mitigate the effects of the delay;
  • Then as early as practicable after the delay, determine the impact of the delay;
  • Recognising the difference between compensable events leading to prolongation costs or damages, as compared to, relief events that seek relief from liquidated damages, i.e. recognising that prolongation and EOTs are two distinct outcomes from a critical delay event.

The Society recently issued its draft update to the Protocol for industry comment. It includes additional content on Acceleration, Disruption and updates to the Glossary. We will expand on these proposed changes in our upcoming editions.

Rider 1

Rider 1 introduced 2 additional delay analysis methodologies to its 4 previously recognised methods in the Protocol, being:

1. Time Slice Windows Analysis: this methodology addresses the key issues raised with time impact analysis as it compares the impacted critical path and delay analysis with the actual events and effects that transpired when the delay ended.
2.  Longest Path Analysis: this methodology is commonly used to demonstrate whether a delay event and impact had caused an actual delay to completion but relies on an as-built critical path programme being determined.

Two Types of Analysis

Rider 1 also distinguished between 2 types of Analysis, being:
1. Cause & Effect:
This method start with the identification of an event (a cause) and thereafter seek to establish its impact (the effect).
2.  Effect & Cause:
This method start with identifying critical delay (an effect) and thereafter seek to establish what might have caused that delay.

Rider 1 then suggested different perspectives for determining Criticality vs Delay Impact:
* Criticality is determined in 3 ways: Prospectively, Contemporaneously and Retrospectively
* Delay Impact is determined in (only) 2 ways: Prospectively and Retrospectively.
* Prospectively = forward-looking or forecast;
* Contemporaneously = current or progressively;
* Retrospectively = actual or as-built (either at the end of the delay or later).

Disclaimer: This article does not constitute advice, legal or otherwise, and is provided only as general commentary. Appropriate professional advice should always be obtained before taking or refraining from taking any action in relation to such information and/or the application of applicable law. This article and the materials contained in it are provided on the basis that all liability for any loss or damage, whether direct or indirect, arising out of or in connection with any use or reliance upon this article is excluded to the fullest extent permitted by law.