THE NEW “DELAY AND
DISRUPTION PROTOCOL”
A COMMENTARY – Part
4
Our examination of the “Delay and Disruption Protocol”, produced by
the Society of Construction Law, this month focuses on the thorny subject of
“disruption”. The writer’s comments are given in italics.
Disturbance, hindrance or interruption
The protocol defines disruption as “disturbance, hindrance or
interruption to a contractor’s normal working methods, resulting in lower
efficiency”. Typical causes are listed as premature movements between
activities, out of sequence working and repeated learning cycles, work area
congestion caused by stacking of trades, increased gang sizes, increases in
length or number of working shifts. If
caused by the client, but not otherwise,
the contractor may have entitlement to financial compensation. This
entitlement may arise under the terms of the contract itself. (Under most
JCT forms and allied sub-contracts there are clauses providing for loss and
expense due to “disturbance of regular progress”. This term is generally
regarded as covering disruption).
In absence of a specific term, the contractor’s remedy may arise
under common law for breach of contract. This would often be as breach of an
implied term (ie that the client will not prevent or hinder the contractor in
the execution of the works).
Disruption is not necessarily linked to delay in progress, but can
also occur where the works are
completed by the due date. An extension of time is not a pre-condition for
reimbursement of disruption costs.
The protocol emphasises that disruption is not merely the difference
between what actually happened and what the contractor planned to happen. The contractor must demonstrate “cause and
effect”. The object is to put the
contractor back in the same financial position he would have occupied had the
disruption not occurred
Site records
It is absolutely essential that the contractor maintains good site
records. (Whilst contractors
generally keep good records of delays, this is not true of disruption. Every sizeable project should have a
baseline programme, daily site diary recording key events; daily staff and labour register giving
names, job functions and hours allocated to specific areas/activities; weekly
progress reports showing planned and actual percentages with comments for each
activity; daywork sheets recording instances of standing time, special return
visits etc. Instances of disruption
should be notified to the client in
writing at the time. If the contractor is likely to incur loss and expense, he
should give prompt written notice and apply for reimbursement. Contemporary
records should be maintained in order to evaluate the costs of the notified
disruption).
Measured mile
The protocol recommends the “measured mile” approach to evaluation.
This method compares the “good” productivity on a part or period of the job
where there has been little or no disruption with the “bad” productivity on the
disrupted area. This can be done by
comparing hours earned with actual hours expended, or by measured units of work
achieved per day or week. Where it is
difficult to identify a “good” area, then other projects may be used as a
source of information, if there is adequate evidence and comparability.(
Obvious disparities should be avoided. The “good” area may just be an “easy”
area, thereby negating the object of comparing “like with like”).
If the “measured mile” is not practicable, it may be appropriate to
utilise published productivity research regarding working hours and gang
strengths etc, such as published by the CIOB. However, such an approach should
only be used where it can be demonstrated as relevant (ie working conditions,
type of construction etc) and backed up by evidence. The arbitrary addition of unsupported percentages is frowned
upon.
The protocol emphasises the need to exclude elements which are the
contractor’s responsibility (eg adverse weather, plant breakdowns, poor
management, acceleration etc).
Variations
As to disruption caused by variations,
this should be identified and evaluated at the time the work is done and, if
possible, included with the individual variation. It is inadvisable to wait
until the end of the project before rolling up the disruptive effects of many
variations into a “global claim”.
For disruption due to “other events” (eg
standing time, abortive work, special visits etc) the protocol recommends
reimbursement as actual reasonable costs incurred plus a reasonable allowance
for profit, if the latter is permitted by the terms of the contract. (In
practice, this equates to the prompt submission of daywork sheets for signature
on a “record only” basis).
Conclusion
All too often, problems go unrecorded,
due to fear of “upsetting the
client”. Experience shows that this
leads to worsening of relations later
in the job, as events take their toll.
The key is to promptly flag up all problems involving time and/or money , for
proactive resolution and evaluation. A
little upset at the time is preferable to an acrimonious dispute at the end of
the job.
John Russell
Construction Contracts & Training Consultants (Established
1984)
Cheshire CW4 7DP Tel : 07770 986444
Email :
swsubbie@globalnet.co.uk Website:
www.jrconsultant.co.uk
John Russell column for 1 Nov 2003
Electrical Times
“The Law”