International Delay Analysis

Approaches
Delay Analysis References, Categories and Perspectives
Mohamed Maged Hegazy
Associate Planning Director - Red Sea Global, LLM, MBA, BSc, MRICS, CCP, PMP

• Master in Construction Law – Salford University, UK

• Master of Business Administration – UoPeople, US
• B.Sc. Civil Engineering – Ain Shams University, Egypt
• Consultant – Saudi Council of Engineers
• MRICS, Chartered Project Management Surveyor – RICS
• CCP, Certified Cost Professional – AACE
• PMP, Project Management Professional – PMI
• P3O, Portfolio, Programme and Projects Offices – AXELOS, UK
• FIDIC Contracts Consultant, AIA (Brussels) Fellow
• Author of 50 Planning fundamentals & Fundamentals of Construction Contracts
• Experience more than 21 years in mega-projects (Buildings, Infrastructure &
Roads)
 My Related Publications

Project Planning and Scheduling Delay Analysis Contractual and Legal Aspects
Content
1) Introduction

2) Delay Analysis Categories

3) RICS Guidance - Extensions of Time

4) SCL Delay and Disruption Protocol

5) ASCE Standard - Schedule Delay Analysis

6) AACE Recommended Practices RPs

7) Closing Notes
1- Introduction
Delay Definition, EOT Claim Procedure and References
WHAT IS DELAY?
• DELAY is an act or event that extends the
time required to perform tasks or activities
under a Contract . It is usually reflected as
additional days of work or as delayed start
of activities.

• DELAY May or may not include change(s)

in the scope of work of activity(s) or the
Contract.
How to Grant an Extension of Time?
Delay Events

Contractual Procedure

EOT Entitlement

Delay Analysis

EOT Claims
Key References
Additional References
2- Delay Analysis Categories
Types, timing and basis of delay analysis
Interim vs Final Extension of Time

Prospective Delay Analysis:

Analysis of facts associated with delay events during construction of a
project and the estimation of their effect upon the planned completion date
of a project. (Interim Extension of Time).

Retrospective Delay Analysis:

Analysis of facts associated with delay events after completion of the
construction period of a project. (Final Extension of Time).
Theoretical Based Methods

Global Impact method

Considers an increase in work scope as directly proportional to time and ignores
timing, concurrency and own delays.

As-planned impacted method

Impacts delays upon the original baseline and does not consider mistakes in the
baseline or events at the time of the delay.

As-built “but for”

Inconsistent with the facts and relies upon the as built programme demonstrating that
all delay is excusable.
Actual Based Methods

As-planned -v- as built method

Simple and visible in a single window but not suitable for complex projects with
competing and concurrent delay.

Windows/snap shot or update method

The use of electronic progress reports to analyse incrementally the changes to the as
planned programme with as built assistance.

Impact/Update – Timeslices
Driven by a delay schedule and subject to time slices within which the anticipated and
actual progress is analysed. Strong in addressing mitigation and concurrent delays.
Other Categories
Delay Analysis Approaches

- Prompt Action – Prospective

-Simple and relatively
Analysis - Do not 'wait and see’
simple Chronology of Delay Prospective TIA
(Contemporaneous Analysis)
-Detailed, forensic and more Retrospective
reliable
- Analysis time-distant from the Changing after the Fact
delay event
Reasons & Types of Delay
Delay

Pacing Excusable (EOT) In-Excusable (CRE)

ERE Concurrent Neutral Event

Compensable Non-Compensable

-CRE: Contractor Risk Event

-ERE: Employer Risk Event
3- RICS Professional Guidance - EOTs
Knowing (principles), doing (application) and advising (considerations)
RICS Professional Guidance
If a delay has been caused by EE, then in general, the
contractor will be entitled to EOT. In order to decide whether a
contractor is entitled to an extension of time, it is necessary to
establish the cause of the delay and the period of delay. In
some cases this will be very easy but in many cases it will be
very difficult and can be controversial.
General Principles (Level 1 - Knowing):
- Costs of Delay: LDs vs Prolongation/time-related costs.
Practical Application (Level 2 - Doing):
- Measurement of Delay.
- Methods of Delay Analysis.
Practical Considerations (Level 3 - Advising):
- Which Method should be adopted?
- Strength and Weakness of each Method.
- Concurrent Liability of Delay.
Methods of Delay Analysis - RICS
Measurement of Delay: form contract completion date to the actual completion date
(retrospective), or form the current contract completion date to the projected completion
date (prospective). It’s important to agree on the benchmark programme that will be used
(BIM can help) to carry out the reviews to resolve questions of culpability for delay or to
estimate the likely delay period.
Methods of delay analysis:
-Simple and relatively simple
1. Overview of the facts: It deals with relatively straight forward
claims when the cause and delay are apparent.
2. Comparing actual and planned progress: It’s comparing the
activities timing using the contemporaneous documents to
review the reasons of discrepancies/ delay.
-Detailed, forensic and more reliable
3. Critical path analysis (CPA): Based on the logic-link using either
planned (prospect. or retrosp.) or as-built programme.
4. Focused methods of analysis: Over shorter periods using an
updated programme (prospective: TIA), or particular periods
with as-built data (Retrospective: window or time slice).
4- SCL Delay and Disruption Protocol
Analysis contemporaneous and time-distant from the delay event
SCL Protocol: The 2nd edition of the Protocol has been published in 2017
and supersedes the 1st edition published in 2002.
The object of the Protocol is to provide useful guidance on some of the
common delay and disruption issues that arise on construction projects to
provide a means by which the parties can resolve these matters and avoid
unnecessary disputes.
It is divided into 22 Core Principles and 3 parts of guidance & 2 appendixes.
2. Purpose of extension of time

The benefit to the Contractor of an EOT is to relieve the Contractor of

liability for damages for delay (usually liquidated damages (LDs) for any
period prior to the extended contract completion date and allows for
reprogramming of the works to completion.

The benefit of an EOT for the Employer is that it establishes a new

contract completion date, prevents time for completion of the works
becoming ‘at large’, and allows for coordination / planning of its own
activities.
Delay Analysis

Impact / Predict
Prompt Action – Prospective Analysis
4. Do not 'wait and see' regarding impact of
delay events (contemporaneous analysis)
Applications for an EOT should be made and dealt with as close in time as
possible to the delay event. A 'wait and see' approach to assessing EOT is
discouraged.
Where the Contractor has complied with its contractual obligations regarding
delay events and EOT applications, the Contractor should not be prejudiced in
any dispute with the Employer as a result of the CA failing to assess EOT
applications.
EOT entitlement should be assessed by the CA within a reasonable time (4.1:
not later than one month) after submission of an EOT application by the
Contractor.
The Contractor potentially will be entitled to an EOT only for those events or
causes of delay in respect of which the Employer has assumed risk and
responsibility (called in the Protocol Employer Risk Events) that impact the
critical path.
Contemporaneous analysis of delay
(Is it an ERE?)

4.3 The Contractor should generally submit a sub-network (sometimes called a

'fragnet') showing the actual or anticipated effect of the Employer Risk Event and
its linkage into the Updated Programme.

Simply stating that Employer Risk Events have occurred and claiming the whole
of any delay apparent at the time of the events is not a proper demonstration of
entitlement.

4.4 These events vary between the different standard forms of contract, and care
is needed when reading them. When granting or refusing an EOT, the CA should
provide sufficient information to allow the Contractor to understand the reasons
for the CA’s decision.
Common Sense

4.14 Although the Updated Programme should be the primary tool for
guiding the CA in its determination of an EOT, it should be used in
conjunction with the contemporary evidence to ensure that any
resulting EOT is both reasonable and consistent with the factual
circumstances.
It will also be necessary for the parties to apply common sense and
experience to the process to ensure that all relevant factors are taken
into account, and that any anomalous results generated by the delay
analysis are properly managed. Any resulting EOT must be consistent
with the contractual requirements regarding entitlement.
7. Incremental review of extension of time

Where the full effect of an Employer Risk Event cannot be predicted

with certainty at the time of initial assessment by the CA, the CA
should grant an EOT for the predictable effect. The EOT should be
considered by the CA at intervals as the actual impact of the
Employer Risk Event unfolds and the EOT increased (but not
decreased, unless there are express contract terms permitting this) if
appropriate.
Retrospective Analysis
11. Analysis time-distant from the delay event
Ver.1. Guidelines on dealing with disputed extension of time issues after
completion of the project – retrospective delay analysis
The table below summarises the types of analysis that can be conducted
depending on the types of factual material available. An ‘X’ indicates the factual
material that is required for a particular analysis, but in some cases there are
alternatives, as indicated in the table:
WHICH TECHNIQUE TO USE?
11.3 The Choice of technique depends on:
(a) the relevant conditions of contract;
(b) the nature of the causative events;
( c) the nature of the project;
( d) to ensure a proportionate approach, the value of the project or dispute;
( e) the time available;
(f) the nature, extent and quality of the records available;
(g) the nature, extent and quality of the programme information available;
and
(h) the form in which the assessment is being made.

11.2 Irrespective of which method of delay analysis is deployed, this is particularly relevant where there is
a significant risk that the remaining duration projections, logic links, calendars and constraints within the
baseline programme (preferably the Accepted/Updated Programme) might produce anomalous results.
OTHER TECHNIQUES
11.4e Delay impact is determined in one of two different ways. A prospective delay analysis identifies the likely
impact of historical progress or delay events on a completion date. The conclusions of a prospective delay
analysis may not match the as-built programme because the Contractor's actual performance may well have
been influenced by the effects of attempted acceleration, re-sequencing or redeployment of resources in
order to try to avoid liability for liquidated damages or due to other Employer and Contractor Risk Events. A
retrospective delay analysis identifies the actual impact of the delay events on the identified actual or as-built
critical path.
11. 7 Other methods, which may be reasonably deployed in particular circumstances having considered the
criteria in paragraph 11.3 above, include: project wide retrospective as-planned versus as-built analysis (i.e.
not in windows), time chainage analysis, line of balance analysis, resource curve analysis, and earned value
analysis.
11.8 In order to avoid or at least minimise disputes over methodology, it is recommended that the parties
try to agree an appropriate method of delay analysis before each embarks upon significant work on or after the
event delay analysis.
Other Methods - Delay Quantification and Forecasting
5- Schedule Delay Analysis - American Society of
Civil Engineers, Construction Institute Standard
ANSI/ASCE/CI 67-17 Chronology, Responsibility & After the fact
ASCE – Schedule Delay Analysis
7 CHRONOLOGY OF DELAY

7.1 Delays Should Be Evaluated as They Occur in Chronological Sequence

7.2 A Schedule Delay Analysis Should Reflect an Analysis of Prior Entitlement
so as to Reflect a Current Adjusted Completion Date Prior to Evaluating Delay
7.3 Consideration Should Be Included as to How Delays Were Evaluated by the
Participants During the Project
7.4 Evaluation of Delay Chronology Should Be Documented and Supported
with Contemporaneous Records
8 CONCURRENT DELAY

8.1 Concurrent Delay Can Be Described as a Situation Where Two or More Critical
Delays Are Occurring at the Same Time During All or a Portion of the Delay Time
Frame in Which the Delays Are Occurring
8.2 Concurrent Delay Typically Is Excusable but Noncompensable, Meaning a Time
Extension Is Given but No Costs Are Recovered by Either Party
8.3 Concurrent Delay Should Be Apportioned Where Possible
9 RESPONSIBILITY FOR DELAY

9.1 A Schedule Expert Typically Can Identify the Party Responsible for a Delay from the
Contemporaneous Records, Interviewing Project Personnel, and Reading Deposition
Testimony, and May Rely on Technical Experts or Fact Witnesses in Opining on Liability
9.2 During a Project, the Contractor Should Provide the Owner with a Notice of Delay for
Excusable Delays, Followed by a Request for a Change in Accordance with the Contract.
9.3 Responsibility Analysis Should Be Supported by a Factual Chronology Based on the
Contemporaneous Project Performance Records and Referencing the Remedy-Granting
Clause of the Contract
9.5 Schedule Experts Should Not Opine Beyond Their Expertise. If Necessary, a Technical
Expert Should Be Engaged on Whose Opinion the Schedule Expert Can Rely
9.6 Once a Technical Expert’s Finding as to Which Party Was Liable for the Delay Event Is
Formed, a Legal Review May Be Made with Counsel Consistent with Legal Precedent in the
Project Jurisdiction
10 CHANGING SCHEDULES AFTER THE FACT

10.1 The Schedules Should Be Presumed Correct as They Were Used During the
Project, Unless Otherwise Shown to Be Inaccurate
10.2 After-the-Fact Changes to Schedules Used During the Project Should Be
Minimized and Only Made Where Necessary
10.3 Any Changes Made to the Contemporaneous Record of Project Schedules
Should Be Carefully Identified and Documented
10.4 When Possible, the Preference for Dealing with Inaccurate Schedules After the
Fact Is to Make Corrections, Rather than Abandon the Schedules, Subject to the
Nature and Scope of the Corrections
10.5 Changes to Schedules Generally May Be Made to Correct Necessary Physical or
Contractual Constraints but Typically Not the Contractor’s Preferential Sequencing
12 References
6- AACE Recommended Practices RPs
RP 52R-06 TIA & RP 29R-03 Forensic Schedule Analysis
Delay Analysis Approaches - AACE
Prospective Retrospective
The appropriate 1. Classification and
update schedule is the Principles
most recently
reviewed schedule
update before the 2. Source Validation
event (unimpacted
schedule).
3. Method
Implementation
Insert a modeled
fragnet into the
schedule, then check 4. Analysis Evaluation
logic and duration,
and finally recalculate
the CPM to measure 5. CHOOSING A
the time impact. METHOD
AACE 52R-06 TIA Flowchart – 8 Steps

Note: Concurrency is not applicable.

Enhancement & Consideration – AACE 29R-03

The MIP of the modeled additive method (3.6 MIP) can be also applied when
required as per AACE RP 29R-03 (Forensic Schedule Analysis).
I. Determination and Quantification of Excusable and Compensable Delay. An additive-modeled
schedule by itself does not account for concurrent delays and compensability. However, it is possible
to analyze for approximate concurrency by comparing two additive-modeled schedules (one by
inserting all owner-caused and force majeure-caused impact events into the baseline & another one
by inserting all contractor-caused impact events into the baseline).
K. Specific Implementation Procedures and Enhancements. Global Insertion (total impact)- Stepped
Insertion (in chronological order).
L. Considerations in Using Min Protocol. Suited primarily for the use in identifying and quantifying
potential delays rather than actual delays - Easy & doesn’t need as-built schedule - Does not account
for concurrent/pacing delays/acceleration .
Additional Validation –AACE 29R-03
Additional (SVPs)
The SVPs of the modeled additive method (3.6 MIP) can be also applied when required as per AACE
RP 29R-03.
Baseline
Enhancement: Each activity to be 0.5% to 5% of contract value - Separate as per responsible party -
Add activities to enhance the level of detail - Divide act.s based on progress records.

Update
Investigation: If update is the primary source, check: (Actual dates vs data date - Using the most
reliable source/ interviews if possible - Changes in IDs & scope) - Accuracy of dates of significant
activities to be 1 working day, and other activities to be 5 days - Consistency of dates along the
updates - Change in longest path/ controlling activities.
Enhancement: Tabulate all sources of data - Show discrete activities for delay events and influences -
Subdivide vague or general activities.
Evaluate Pacing or Acceleration (if exist).
Retrospective Delay Analysis (Foresnic)
Forensic Schedule Analysis:
A technical field of studying and investigating the schedule calculation using different methods (usually
requires many subjective decisions by professionals) to measure and quantify delay focusing on causation
to resolve EOT disputes.

Project Planning and Forensic Schedule Legal Proceeding and

Scheduling Analysis Aspects

WHICH TECHNIQUE TO USE?

No forensic schedule analysis method is exact. The level of accuracy of the answers produced by each
method is a function of the quality of the data used therein, the accuracy of the assumptions, and the
subjective judgments made by the forensic schedule analyst.
Legal considerations (3): Contractual requirements, ADR Forum & Legal requirements.
Technical considerations (3): Purpose, Data availability and reliability & Complexity of the dispute.
Practical considerations (5): Size of the dispute, Budget for analysis, Time allowed, Analyst experience &
Past history in the project).
Forensic Schedule Analysis -AACE 29R-03
1. Classification 2. Source 3. Method 4. Analysis 5. CHOOSING A
and Principles Validation Implementation Evaluation METHOD

Observational: Examining the schedule itself without changes. Modeled: Representing delay events in schedule.
Static: Same network - Dynamic: updates with variations. Additive: add to a base - Subtractive: from as-built.
2. Source Validation Protocols (SVP)
2.1. Baseline 2.2. As-built 2.3. Updates 2.4. Delay Events

3. Method Implementation
E F G,H,I,J
A&B Description & C&D K Specific L M
Min. Enhance Identification &
Common names SVP Procedures Cons Caveats
MIP ment Quantification

4. Analysis Evaluation
3. Critical Path 2. Concurrency 1. Excusability & 4. Mitigation &
and Float Quantification Compensability Acceleration
- Closing Notes
Data, EOT claim procedure, Standard forms, Law & Recap
Records / Source Data

No exact method
EOT Claims Procedure
-Contractual entitlement
Typically, construction contracts contain provisions entitling the contractor to an extension of time on the
occurrence of a particular event provided the progress of the works or time for completion is delayed as
a consequence.

-Contractual compliance
Generally within an extension of time clause, the contractor will be obligated to submit notice(s) and
detailed particulars within a specified time frame.

-Governing Law
AIA 2017 - Construction: § 13.1 Governing Law.

The Contract shall be governed by the law of

the place where the Project is located.
 Contractual Mechanisms
The Standard Forms
Many contract draftsmen prefer to leave the problem of concurrent delay unaddressed. This results in little
guidance for any contract administrator in determining an assessment under the contract. Concurrent delay is not
obviously handled in the standard forms of construction contract such as AIA, FIDIC, JCT and NEC.
It makes it confusing when a concurrent delay takes place because no standard approach is adopted, and
different rules and procedures may apply under different jurisdictions.

Therefore, due to the absence of any express

provisions addressing concurrent delay, the
parties typically find themselves applying the
generic terms of the extension of time and using
those terms to make their arguments. Unless the
parties are able to reach an agreement, a
dispute may be referred to mediation,
arbitration, or the courts where a series of
common law principles will emerge and evolve.
Concurrent Delay – CMS (Sample of Jurisdictions)

- US: “No harm, no foul” rule applies and neither party may
benefit monetarily from the delay (Time but no money).
- Australia: The current Australian authorities favour the “first
in time” approach considering the sequential delays.
- Scotland: City Inn found that it must firstly be considered
whether there was a “dominant” cause of delay.
- Germany: Concept of concurrent causality as parallel but
independent contributions to causation.
- Austria: Austrian courts use the so-called “theory of
spheres”, through which it can be determined whether any
particular cause of a delay falls into the employer’s or the
contractors’ sphere of responsibility.
EOT Sample – Table of Content
Choice of the Appropriate Method

How is the question of evidence as to causes and

periods of delay dealt with?
In the United States, the parties appoint programming (schedule) experts/delay analysts as expert
witnesses; each such expert will select an appropriate method of analysis out of a number of
possible methods which are discussed in detail in AACE RP-FSA and ASCE SDAS some of which
are also included in the Society of Construction Law’s Protocol. Whilst the choice of an
appropriate method will be governed by a number of factors, including the available evidence,
there is a general preference for contemporaneous methods where possible (i.e. those methods
which assess the impact of delays by reference to contemporaneous evidence).
Dispute Crystallization
SCL 4.6 If the Contractor does not agree with the CA’s decision, it should so
inform the CA immediately. Disagreements on EOT matters should not be left to
be resolved at the end of the project. If no agreement can be reached quickly,
steps should be taken by either party to have the dispute or difference resolved
in accordance with the contract dispute resolution procedures.
Recap
Analysis
Types Of Delay
Approaches

Contractual
EOT Claims
Mechanisms
M.Maged Hegazy
mm.hegazy@ppmconference.net
Mobile : 00966 (0) 58 0264 968