Delay and Disruption

Delays on construction projects are a frequent occurrence sometimes causing disruption to the regular progress of operations. In many situations the delay arises from the overlap between design and construction necessary to achieve early use of a development. A logical and systematic approach to the management of projects can reduce the effects of delays, but in many cases the disputes that arise can have a damaging effect on relations and the project. This too can be reduced if not avoided.

The starting point is the drafting of the contract. If the right structure is created, the site management teams have the chance to cooperate successfully through the contract. This itself reduces disputes. The first step is to clearly state the obligations of the parties as to time. The parties are more likely to dispute their obligations if those obligations are not clear and specific. The next step is to decide how the time obligations are to be monitored. The mechanism to be used to manage corrective action needs to be chosen and this will involve deciding whether or not to adopt a programme of works.

Obligations as to Time

The Employer's two main time obligations will be to give the contractor possession or occupation of the site and to provide information. If not expressly set out in the contract, it is an implied term as a matter of business efficacy that the Employer will provide the details and instructions necessary for the execution of the works in a reasonable time. What is a reasonable time does not depend solely on the convenience and financial interest of the contractor, but also on the design team, Employer and the planned order of the works and timing of requests for information Neodox Ltd v Borough of Swinton and Pendlebury [1985] 5BLR34.

The Contractor has three possible time obligations. The first and most usual is to complete by a specified date or within a specified period. If no time is stated then in most cases a term will be implied to complete by a reasonable time. This is a question of fact and can only be determined after the work has been done, which will be of little use to an Employer anxious for completion.

The Contractor's possible second obligation is to progress the work to a specified standard, either with due diligence or due expedition. It is a useful obligation to an Employer if the means of monitoring the obligation is also clearly stated, since it allows the Employer to take early action to avoid late completion. If such an obligation is not expressly stated then it is unlikely to be implied British Steel Corporation v Cleveland Bridge & Eng Co [1981] 24BLR100.

The Contractor's possible third obligation is to manage and reduce the delays that might be caused by any events however caused. If such an obligation is not expressly stated then it is unlikely to be implied in a contract with extension of time clauses and reimbursement of loss and expense Ascon Contracting Limited v Alfred McAlpine Construction Isle of Man Ltd (1999). The obligation is the most difficult for an Employer to monitor without a critical path network programme.

Monitoring Time Obligations

If the Contractor is to monitor the time obligations he should ensure that he gives early notice of his requirements if not already stated in the Contract. The date for possession should be stated in the contract. The late supply of information is the most common cause of disputes. An Information Release Schedule frequently updated assists all parties to manage their work.

If the Employer is to monitor the Contractor's time obligations then some form of programme will be necessary. The Contractor's first obligation to complete by a date is easy to monitor and all that is required is a Milestone Schedule. This is of little use to an Employer to manage and reduce delays.

The Contractor's second obligation to progress the works to completion is usually monitored used a Bar Chart programme and adopting a Time Line to record actual progress against planned. This approach allows the problem activities to be identified. In the simplest of projects corrective action can be taken based solely on the Bar Chart. In more complex projects a Network Analysis is required to allow the activities most critical to completion to be identified for corrective action.

The Contractor's third obligation to reduce delays can only be monitored by a Network Analysis Programme, showing which activities were critical and whether or not corrective action has been taken.

Programme Obligations

Programmes are the modern way of managing projects and the only way to effectively monitor some time obligations. If programmes are to be effective, then they need to be updated regularly to record actual progress. They need to be modified to take into account changes in the methods of working. Such updated programmes will then allow realistic estimates of dates for completion and allow decisions to be taken based on sound time analysis.

If the Programme of Works is to have real value in the administration of the contract and in monitoring time obligations then it is suggested that any Contract should provide as a minimum that:

· The Contractor is required to submit for agreement a first Programme of Works in the specified detail and form showing his plans realistically. · The Contractor is obliged to regularly submit for agreement revisions to the agreed Programme to show actual progress and the effect on timing of remaining work. · The Contractor cannot change the Programme without agreement of the Contract Administrator.

If a Programme of Works is adopted and updated as suggested, then it is practical common sense to require the Contractor to follow the Programme. This approach has implications in deciding entitlement to extensions of time, but it is suggested will have the effect of reducing disputes on the details of that entitlement.