5 Steps To Formulate A Successful Delay Claim

CONSTRUCTION
5 STEPS TO FORMULATE A
SUCCESSFULL DELAY CLAIM
FORMULATION | ANALYSIS | MANAGEMENT
Dr Hendrik Prinsloo is an
expert witness and
specialist in the analysis
of construction delay
Miguel de Cerventes Savedra one of Claims were always one of the most
claims
the greatest novelist and writers of all difficult issues I had to deal with in
time said that “delay always breeds the projects I was involved in over the
danger” past 20 years. I was so passionate to
find a sensible and easy to
This remark made in the 16th century understand way to formulate and
still holds true today, especially in the construction claims that I embarked
construction industry. It is very seldom upon a journey that culminated in a
that a construction project is not new model developed by means of
impacted by delays and additional PhD research process. During the
cost. The management of delay and research I had the opportunity to test
cost claims can be contentious and and refine the model with the
as a result delays are one of the most assistance of thought leaders and
predominant causes of disputes in our specialists. I have distilled the main
industry. How do we traverse this themes of the model in 5 easy steps
minefield of complexities successfully? which I will now share with you.
STEP 1 – DESCRIBE THE DELAY
A short concise description of the delay should be provided explaining the cause and effect. For
example: late information from the owner (cause) resulted in the late start of the excavation (effect).
The description should include the following information: when did the delay occur; where did the delay
occur and why did the delay occur.
STEP 2 – EXPLAIN WHY YOU HAVE THE RIGHT TO CLAIM

When claims are analysed the first consideration is normally to determine whether the contractor has the
right to claim. Written construction contracts normally provides for the contractor to submit a claim
when specific events have occurred. In the case of delay claims most contracts would stipulate specific
circumstances that will be categorised as excusable delays and would provide the right to the
aggrieved party to claim.
Not all projects have the benefit of a written agreement. In smaller projects where a more informal
approached are followed claims normally arise because of a deviation from the initial promise or
deliverable. It can be that the initial promise or deliverable was agreed in a verbal discussion between
the parties.
No matter the bases of the agreement the right to claim should be explained. In the case of a written
agreement the specific contract clauses explaining the right to claim should be quoted and a brief
description on how the circumstances giving rise to the claim complies with the clause(s) in the contract.
If no written agreement was entered into an explanation of how the actual promise or deliverable
deviated from the initial agreed promise or delivery should be provided. In addition, the right to claim
should then be motivated by explaining the reason for the deviation.
STEP 3 – SHOW COMPLIANCE WITH CONTRACTUAL PROVISIONS

Construction contracts would usually have specific provisions that have to be comply with for a claim to
be successful. Normally a notification should be provided when the contractor becomes aware of the
delay and a claim should then be submitted after some time. Provisions in terms of the notification may
for example include a process governed by certain time restrictions or time bars.
This section of the claim should firstly provide a description of the contractual provisions that have to be
complied with and would secondly have to explain how the provisions were adhere to.
STEP 4 – EXPLAIN THE IMPACT ON THE COMPLETION DATE

The risk allocation in most construction contracts would only make provision for the extension of the
contractual completion date in the case of a delay impacting on the completion date. In other words
only delays to activities on the critical path (critical activities) will delay the contractual completion date
and would constitute a valid delay claim.
Firstly, it is important to clearly show that the delay indeed impacted on a critical activity. Secondly, the
severity of the impact should be quantified. Several methods like the time impact analysis, window
analysis, as-planned but for, as-planned v as-built and impacted as planned can be utilized to quantify
Ó 2019 Hendrik F Prinsloo

the delay. However, a detailed description explaining and quantifying by means of a simple calculation
how the impact on a critical activity resulted in a delay to the completion date is sometimes much more
effective.
STEP 5 – CALCULATE COMPENSATION
Construction contracts normally allow for compensation to be paid to the contractor for excusable
delays for circumstances where the risk lies with the owner. In this section a calculation should be
provided on how the compensation due is calculated. The calculation should be informed by the
principles set in the contract.
The claim should be concluded by clearly summarising the request made by means of the claim. For
example: In terms of clause ….. of the contractual agreement we request that the completion date
should be extended with … days changing the current contractual completion date from ………to
……….. and that compensation of …….. should be paid.
Ó 2019 Hendrik F Prinsloo

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CONSTRUCTION

STEP 2 – EXPLAIN WHY YOU HAVE THE RIGHT TO CLAIM

STEP 3 – SHOW COMPLIANCE WITH CONTRACTUAL PROVISIONS

STEP 4 – EXPLAIN THE IMPACT ON THE COMPLETION DATE

Ó 2019 Hendrik F Prinsloo

STEP 5 – CALCULATE COMPENSATION

Ó 2019 Hendrik F Prinsloo

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