The SCL Delay and Disruption Protocol:

a second edition
The Society of Construction Laws (SCL) Delay and Disruption Protocol
was first published in 2002. The intention was to provide a scheme
whereby delay could be better controlled and managed during the
construction process. The SCL has always said that, overall, the Protocol
aims to set out and be consistent with good practice (rather than best
practice). Following the publication of an intermediary update, known as
Rider 1, on 1 July 2015, in February 2017 the Second Edition of the
Protocol was released. 1
In updating the Protocol, there were eight specific terms of reference:

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;
3. whether the Protocol should identify case law (UK and
international) that has referenced the Protocol;
4. record keeping;
5. global claims and concurrent delay;
6. approach to consideration of claims (prolongation/disruption
time and money) during currency of project;
7. model clauses; and
8. disruption.

The Second Edition helpfully builds on the guidance provided in the First
Edition and Rider 1. We set out below one or two of the key elements.

Legal status of the Protocol

The Protocol has no force of law (unless it is adopted into a contract,
which is a very rare occurrence). However, it has been used as a
benchmark for how to approach delay analysis. This is more the case in
Australia than the UK. HHJ Toulmin CMG QC in the case of Mirant Asia-
Pacific Construction (Hong Kong) Ltd v Ove Arup and Partners
International Ltd & Anr 2 noted that:
The first problem with this method is that it is not an accepted method
of delay analysis for construction programming practitionersIt is not
mentioned in the Protocol as a recognised method of delay analysis.

In 2017, in the Queensland case of Santos Ltd v Fluor Australia Pty Ltd 3,
the extent of the disruption was calculated using the measured mile
approach which Flanagan J noted by reference to the brand new Second
Edition of the Protocol as an accepted method of calculating lost
productivity.

Forms of delay analysis

The Second Edition of the Protocol makes it clear that prompt, indeed
contemporary, evaluation is to be preferred. There is a new Core
Principle 4 which notes as follows:
4 Do not wait and see regarding impact of delay events
(contemporary analysis)
The parties should attempt as far as possible to deal with the time
impacts of Employer Risk Events as the work proceeds (both in terms of
EOT and compensation). Applications for an EOT should be made and
dealt with as close in time as possible to the delay event that gives rise
to the application

If this is not possible, the Protocol also considers the most appropriate
form of delay analysis after the event. Here, the original Protocol
recommended that one particular form of delay analysis, namely the
time-impact form of delay analysis methodology, be used wherever the
circumstances permitted, both for prospective and (where the necessary
information is available) retrospective delay analysis . This was not
universally supported and was one of the main reasons for the review of
the existing Protocol. One particular issue with the time-impact analysis
can be its reliance upon theoretical modelling and not the actual
sequence of events. At the same time, the original Protocol made no
mention of the windows form of delay analysis which has certainly
become one of the most used forms of delay analysis, arguably because
it is considered to be one of the most reliable.
This omission has now been rectified and under the Second Edition of
the Protocol, no one form of delay analysis is preferred, where that
analysis is carried out some time after the delay event or its effect.
Instead, the Second Edition of the Protocol sets out the factors that need
to be taken into account in selecting the most appropriate form of delay
analysis as well as providing a helpful explanation of many of the delay
analysis methodologies currently in common use. It begins with the
prudent comment that:
Irrespective of which method of delay analysis is deployed, there is an
overriding objective of ensuring that the conclusions derived from that
analysis are sound from a common sense perspective.

The Protocol then lists a number of criteria which should help determine
the choice of the appropriate method of delay analysis. These include:
the Contract terms, the circumstances of the project, the nature of the
relevant or causative events, the claim or dispute, the value of the
project, the time available and the available project records, as well as
the need to ensure that a proportionate approach is taken. There is an
emphasis on what actually happened and a recognition that a theoretical
delay analysis which is divorced from the facts and common sense can
be unhelpful in ascertaining whether in fact the relevant delay event
caused critical delay to the completion date and the amount of that
delay. The key to establishing the critical path to completion is often the
practical analysis of the relevant facts including production and/or
resource data, not what the software says.

Concurrent delay
The 2016 pre-release version of the FIDIC Yellow Book included at sub-
clause 8.5 the following new provision:
If a delay caused by a matter which is the Employers responsibility is
concurrent with a delay caused by a matter which is the Contractors
responsibility, the Contractors entitlement to EOT shall be assessed in
accordance with the rules and procedures stated in the Particular
Conditions (if not stated, as appropriate taking due regard of all relevant
circumstances).
The SCL say that the approach to concurrent delay in the original
Protocol has been amended in the Second Edition to reflect recent case
law. The Second Edition defines concurrent delay in this way:
True concurrent delay is the occurrence of two or more delay events at
the same time, one an Employer Risk Event, the other a Contractor Risk
Event, and the effects of which are felt at the same time. For concurrent
delay to exist, each of the Employer Risk Event and the Contractor Risk
Event must be an effective cause of Delay to Completion (i.e. the delays
must both affect the critical path). Where Contractor Delay to
Completion occurs or has an effect concurrently with Employer Delay to
Completion, the Contractors concurrent delay should not reduce any
EOT due.

Where concurrent delay occurs, then any Contractor Delay should not
reduce the amount of an extension of time that may be due to the
Contractor as a result of the Employer Delay. The Second Edition of the
Protocol recognises that true concurrency is rare4, and this definition is
clearly based on the English approach where concurrency is said to arise
only where there are events that are equally causative of critical delay.
In other words, if one of the events was the dominant cause of delay,
then the other would not be truly concurrent because it would not be an
effective cause of delay.
When discussing contemporary delay analysis, the Second Edition of the
Protocol also notes that, where Employer Risk Events and Contractor
Risk Events occur sequentially but have concurrent effects, the delay
analysis should determine whether there is concurrent delay and, if so,
whether an extension of time is due for the period of that concurrency.
The Second Edition of the Protocol gives the following example. A
Contractor Risk Event will result in five weeks Contractor Delay to
Completion, delaying the contract completion date from 21 January to 25
February. Independently and a few weeks later, a variation is instructed
on behalf of the Employer which, in the absence of the preceding
Contractor Delay to Completion, would result in Employer Delay to
Completion from 1 February to 14 February. The Protocol takes the
position that the Employer Delay will not result in the works being
completed later than would otherwise have been the case because the
works were already going to be delayed by a greater period because of
the Contractor Delay to Completion. The only effective cause of the
Delay to Completion is the Contractor Risk Event.

The approach to notices

We have previously discussed in IQ the importance of complying with
project notice procedures and time bars. This is, unsurprisingly,
endorsed by Rider 1 which stresses that:
The parties and the CA should comply with the contractual procedural
requirements relating to notices, particulars, substantiation and
assessment in relation to delay events...

This will become ever more important under the new FIDIC Forms which
have an increased emphasis on time limits for notices and the provision
of further particulars.

Global claims
The Second Edition says this of global claims:
The not uncommon practice of contractors making composite or global
claims without attempting to substantiate cause and effect is
discouraged by the Protocol, despite an apparent trend for the courts to
take a more lenient approach when considering global claims.

Again, the reference to courts really means English Courts. The Second
Edition continues that Contractors should be aware that there is a risk
that a global claim will fail entirely if any material part of the global loss
can be shown to have been caused by a factor or factors for which the
Employer bears no responsibility. The Contractor must try to provide
adequate records to enable the Engineer or other adjudicator to
establish a causal link between the Employers Risk Event and any
resultant costs or delay.

Records
This further confirms the importance of maintaining records. The new
FIDIC Form will impose a greater burden on all parties. Both the
Employer and Contractor must keep such contemporary records as may
be necessary to substantiate a Claim. Sub-clause 20.2 notes that:
contemporary records means records that are prepared or generated
at the same time, or immediately after, the event or circumstance giving
rise to the Claim.

Appendix B of the Protocol lists record types relevant to delay and

disruption. Further, Core Principle 1 of the Second Edition notes that:
Contracting parties should reach a clear agreement on the type of
records to be kept and allocate the necessary resources to meet that
agreement.

Under the new FIDIC Form, the Engineer may monitor the record
keeping and/or instruct the Contractor to keep additional contemporary
records. Here the Protocol provides guidelines on the keeping of records
and advises that in order to avoid disputes, where practicable, records
should be signed by representatives of the Employer and Contractor. The
Protocol recognises that there is a cost here (the benefit being that
better records mean, in theory, fewer disputes) and specifically notes
that:
Good record keeping requires an investment of time and cost, and the
commitment of staff resources by all project participants. It is therefore
recommended that, prior to preparing the tender documents, the
Employer considers its requirements of the Contractor in relation to
record keeping and includes these within the tender documents.

Whether that becomes a standard feature, remains to be seen.

Conclusion
As noted above, the Second Edition of the Protocol has no legal effect
(and so is not binding on any Tribunal) unless it is specifically
incorporated into a contract. It has also primarily been prepared from a
common law perspective. Of course, its fundamental starting point,
namely that transparency of information and methodology is central to
both dispute prevention and dispute resolution , is universal. Where,
however, the Protocol continues to have value and an increasing
influence is by providing guidance as to good (and even best) practice.
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1.For further details, please go to the SCL

website: https://www.scl.org.uk/resources/delay-disruption-protocol
 2.[2007] EWHC 918 (TCC)
3.[2017] QSC 153. Thereby following similar judicial acceptance of the Protocol as a in
the cases of 620 Collins Street Pty Ltd v Abigroup Contractors Pty Ltd (No 1) [2006]
VSC 490 and Alstom Ltd v Yokogawa Australia Pty Ltd (No 7) [2012] SASC 49
4.The example often given, and indeed given in the Protocol, is the commencement
date, where, for example, the Employer fails to give access to the site, but the
Contractor has no resources mobilised to carry out any work.