THE NEW “DELAY AND DISRUPTION PROTOCOL”
A COMMENTARY – Part 6
In order to follow the Society of Construction Law’s “Delay and Disruption Protocol” we must be
aware of its terminology. The SCL’s
document includes a comprehensive
glossary, and we list below some of the
principal definitions.
compensation
The recovery or payment of money for work
done or time taken up whether by way of valuation, loss and/or expense or
damages.
compensable event
Expression sometimes used to describe what in
the protocol is an Employer Risk Event in respect of which the contractor is
entitled to compensation.
concurrent delay
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. The term ‘concurrent delay’ is often used to describe the situation where
two or more delay events arise at different times, but the effects of them are
felt (in whole or in part) at the same time.
Expression commonly used to describe any
delay caused by a Contractor Risk Event. The protocol distinguishes between:
Contractor Delay to Progress which is a delay which will merely cause delay to
the contractor’s progress without causing a contract completion date not to be
met; and Contractor Delay to Completion which is a delay which will cause a
contract completion date not to be met.
An event or cause of delay which under the
contract is at the risk and responsibility of the Contractor.
critical path
The sequence of activities through a
project network from start to finish, the sum of whose durations determines the
overall project duration. There may be more than one critical path depending on
workflow logic. A delay to progress of any activity on the critical path will,
without acceleration or re-sequencing, cause the overall project duration to be
extended, and is therefore referred to as a ‘critical delay’.
culpable delay
Expression sometimes used to describe what
the protocol calls Contractor Delay.
delay event
An event or cause of delay, which may be
either an Employer Risk Event or a Contractor Risk Event.
disruption
Disturbance, hindrance or interruption of a
contractor’s normal work progress, resulting in lower efficiency or lower
productivity than would otherwise be achieved. Disruption does not necessarily
result in a Delay to Progress or Delay to Completion.
Expression commonly used to describe any delay
caused by an Employer Risk Event. The Protocol distinguishes between Employer
Delay to Progress which is a delay which will merely cause delay to the
contractor’s progress without causing a contract completion date not to be met,
and Employer Delay to Completion which is a
delay which will cause a contract completion date not to be met.
An event or cause of delay which under the
contract is at the risk and responsibility of the Employer.
float
The time available for an activity in
addition to its planned duration. See free float and total float. Where the
word ‘float’ appears in the Protocol, it means positive not negative float,
unless expressly stated otherwise.
free float
The amount of time that an activity can be
delayed beyond its early start/early finish dates
without delaying the early start or early finish
of any immediately following activity.
head office overheads
Head office overheads are the incidental
costs of running the Contractor’s business as a whole and include indirect
costs which cannot be directly allocated to production, as opposed to direct
costs which are the costs of production. Amongst other things, these overheads
may include such things as rent, rates, directors’ salaries, pension find contributions and auditors’ fees. In
accountancy terms, head office overheads are generally referred to as
administrative expenses, whereas the direct costs of production are referred to
as costs of sales.
liquidated and ascertained damages,
liquidated damages, LADs, LDs
A fixed sum, usually per week or per day, written into
the contract as being payable by the Contractor in the event that the works are
not completed by the contract completion date (original or extended).
mitigation
Mitigate means making less severe or less
serious. In connection with Delay to Progress or Delay to Completion, it means
minimising the impact of the Risk Event. In relation to disruption or
inefficient working, it means minimising the disruption or inefficiency.
Failure to mitigate is commonly pleaded as a defence or partial defence to a
claim.
prolongation
Prolongation is the extended duration of
the works during which costs are incurred as a result of a delay.
Amendments are currently being prepared in order
to allow for the introduction of key elements of the protocol into the
industry’s standard forms. In the next article, we shall consider how and to
what extent this is likely to affect us.
( Contract Law column for Electrical
Times published 1 March 2004)
John Russell
Construction Contracts & Training Consultants (Established
1984)
Cheshire CW4 7DP Tel : 07770 986444
Email
: swsubbie@globalnet.co.uk Website:
www.jrconsultant.co.uk