THE
NEW “DELAY AND DISRUPTION PROTOCOL”
A
COMMENTARY – Part 5
“Change management supplements” are about to be published to enable
the incorporation of the Society of
Construction Law’s “Delay and
Disruption Protocol” into JCT standard forms.
It is vital that services contractors are aware of the protocol’s key features.
Our commentary on the protocol this month focuses on the programme and management of changes. The writer’s
comments are given in italics.
Accepted programme
The protocol recommends that the contractor should submit his
programme as early as possible, for acceptance by the main contractor or
client, to be used as the prime tool for managing change and delays
Format should be agreed in advance and reflect the size and
complexity of the works. Except for very simple contracts, planning software should
be agreed for mutual use. The programme
should be in electronic form, capable of interrogation by both parties. It should identify critical path, relevant
activities including design and procurement, information requirements, approval
dates and linkage to the various activities. The programme should be
cross-referenced to a method statement detailing the contractor’s intentions
and resources. (In fact, all
sub-contractors should include on their programmes details and dates of
dependencies required of the main contractor. These include key access dates,
works by other trades, watertight dates, availability of mains power etc. These
are usually the prime sources of delay in any project. The sub-contractor is
then able to monitor and report on these dependencies, thereby protecting
himself and notifying the main contractor of key actions to expedite progress).
Acceptance does not make the programme a formal contract document,
although this can be so if the parties choose.
Every effort should be made to achieve an accepted programme as early as
possible. The protocol suggests financial incentives or even withholding of a
set sum until a proper programme is submitted
The accepted programme is to be regularly updated, not less often
than monthly, using the agreed software. On large projects this updating may
have to be more frequent. The
contractor must enter actual dates and percentage progress achieved on the
various activities. These updated programmes are to be retained in hard copy as
a permanent record. It is the latest updated programme which is then used to
monitor subsequent progress. Where the
contractor has incurred his own delays, he can be made to issue a further
programme showing how he intends to reduce same.
The protocol gives guidance on the detailed planning approach. The
recommended format is a linked bar chart (cascade diagram). Labour and plant resources, major materials
and work rates should be indicated for each activity.
Extension of time
This is to be based upon the accepted and updated programmes. A
“sub-network” is to be inserted into the updated programme to show the actual
or anticipated impact of a client or main contractor event. In the absence of a compliant submission,
then the client or main contractor should make his own evaluation. Any disagreement should be resolved as
quickly as possible, if necessary by using the prescribed dispute
procedure. Such disputes are not to be
left until the end of the project.
The programme is to be brought fully up to date prior to entering
the sub-network representing the client or main contractor event. The impact
can then be determined by use of the agreed planning software. The methodology
used is described as “time impact analysis”.
Where there is concurrent delay (ie separate but parallel delays
attributable to both parties), any culpable delay by the contractor should not
reduce the entitlement to extension.
Records
Whilst the programme is the primary tool for determining extension
of time, reference will also be necessary to contemporary records. The protocol recommends that the range and
format of records should be agreed at the outset. (This is an excellent proposal. Be aware that the various programmes and progress reports are unlikely
to satisfy the notice requirements of most contract conditions. There will be
an even greater need for timely and compliant delay notices).
Conclusion
(The recommended procedures appears too expensive and time consuming for use on smaller and midsize
projects. There will be a need for technical staff to ensure compliance. In
particular, there will be a need for more planners. Only a few major sub-contractors will have the necessary
resources. The big worry is that many ordinary sub-contractors may forfeit
their entitlements to time and money as a result. Any sub-contractor who drifts
unaware into a project governed by this protocol may well risk disaster. Get
prepared now).
John Russell
Construction Contracts & Training Consultants (Established
1984)
Cheshire CW4 7DP Tel : 07770 986444
Email :
swsubbie@globalnet.co.uk Website:
www.jrconsultant.co.uk