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Time extension in circumstances of concurrent delay
In the last chapter, it was discussed that the judiciary had not recognised one standard method that can be used to
analyse extension of time in circumstances of concurrent delay. This has worsened the existing confusion in the
industry on dealing with concurrent delay. A practice guide produced by the JCT is there but it only promotes the use
of their contracts instead of clearing the air on prolonged issues. However, in the United States of America (USA), the
USA’s Association for the Advancement of Cost Engineering International (AACE) produced a directive in the form of
a protocol to ease the confusion of the practitioners in the USA construction industry. Similar to the protocol produced
by their counterpart across the region, the Society of Construction Law (UK) produced the Delay and Disruption
Protocol .
In this chapter we will be analyzing and interpreting the approach and recommended practices in the Society of
Construction Law (UK) protocol in dealing with concurrent delay in the context of extension of time. Based on the
study done on the approaches in the SCL Protocol in managing concurrent delay, a suitable recommended practice
will be suggested to be applied for the use of projects under the supervision of the Public Works Department of
Malaysia.
4.2. The Society of Construction Law & the Delay and Disruption Protocol
The Society of Construction Law (SCL) (UK) is an independent organization formed to ‘promote for the public benefit,
education study and research (and publication of the useful of the useful results of such research) in the field of
construction law and related both in the United Kingdom and overseas’ . Concerned with the rising numbers of
disputes and constant confusion on claim matters i.e. entitlement of extension of time and financial claims, SCL (UK)
published the Delay and Disruption Protocol in 2002 (reprinted 2004) to assist practitioners in the construction
industry identifying and resolving thorny issues. Some of the core principles covered in the SCL protocols are
extension of time, concurrent delay, variations, loss and expense, ownership of floats and others.
The SCL protocol was drafted by a subcommittee in the SCL (UK). Before the latter edition of the Delay and
Disruption Protocol was published, there was the consultation edition which had gone through a few workshops
before it made the final cut. There were some changes made to the consultation edition taking into consideration
feedback and comments received. It has been much discussed since its debut . Blackler suggested that the SCL
protocol is a tool to ensure the contract runs smoothly without disputes . Disagreeing with the term protocol used,
Bingham believed that it is only a guide which still did not give the ‘builders’ the answer to their questions on
managing change in delay and disruption. Knowles also played down the hype of the protocol by stating that the
suggested approach is not something new, instead the SCL Protocol is only supporting some of the existing
approaches in the construction industry . SCL (UK) recommended that SCL protocol is the answer to the missing link
in a standard form of contract. Most of the core principles covered in the protocol was clearly defined and step by
step guidance on how to deal with delay and disruption issues is provided. It was also produced to fit any contract for
management of delay and disruption .
The SCL protocol is not a compulsory document to be used with the contract document or either a statement of law.
The SCL Protocol is only a mere guideline to provide a clearer picture on managing delay and disruption issues
where the SCL (UK) hopes to reduce the number of disputes in the construction industry. Nonetheless, the Society of
Construction Law (UK) aims for the SCL protocol to be applied by contracting parties with any of the available
standard forms of contract to avoid disputes regarding the common problems covered in the SCL protocol. Parties
who intend to incorporate a part of or the whole of the SCL protocol as part of the contract document should ensure
that it does not contradict with the terms of designated standard forms of contract or a customized drafted contract. A
reformation on the protocol shall be made to the SCL protocol if they intend to change the status quo of the document
as just another useful guideline to a contract document material .
In a bold attempt to make the SCL protocol contract compliant universally with the standard forms of contract,
prominent names in the industry, Pickavance Consulting and Fenwick Elliot (PFE) joint forces to produce the PFE
supplement. PFE supplement is a change management supplement which contains lists of amendments to the JCT
98. The purpose of the whole idea is to make the JCT form and the SCL protocol compliant with each other .
While SCL claimed that the idea to integrate the SCL Protocol with standard form of contract is the move long awaited
by the people in the industry, JCT however opposed the idea to be compliant with SCL Protocol. Lal in his article
suggested that JCT declined on the basis that (1) it is not suitable to translate the particulars in the SCL Protocol as a
contractual document (2) the PFE supplement is not in line with JCT conditions of contract and (3) if combined
together, SCL Protocol will make JCT contract complicated and will lead to more disputes . With everybody
acknowledging JCT’s stand on this matter, Lal wonders on the other bodies’ reaction to this protocol compliant with
the standard form issue .
4.3 Concurrent Delay in the Protocol
SCL Protocol has an interesting positive framework on dealing with concurrent delay and extension of time. SCL
Protocol only defines concurrent delay as a true concurrency situation where
“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. ”
SCL protocol acknowledges that the situation of true concurrency can take place anytime although rarely found. The
approach of true concurrency by the SCL protocol was supported by the judiciary in two Technology and Construction
Court (TCC) cases, namely in the case of (1) Henry Boot v Malmaison Hotel and (2) The Royal Brompton Hospital
NHS Trust v Frederick Alexander Hammond & Others . However, instead of independent causes of delay as true
concurrent delay is defined, there are other concurrent situations where overlapped delays were linked and
depended on each other .
The approach in the SCL protocol recommends that if in the occurrence of overlapped delay caused by the employer
and the contractor, the contractor shall be entitled to the entire days of extension of time without any reduction. In the
view of the sub-committee who drafted the SCL protocol, they believed it is wrong for the employer to deduct
liquidated damages from the contractor in an event which is contributed by the employer themselves . Approaches
suggested in the SCL protocol in dealing with concurrent delay were also in line with the ‘Prevention Principle’ in the
English law. An employer should not be allowed to prevent the contractor to complete his obligation to complete the
work on time. By awarding extension of time for the total period of the employer’s caused delay the employer will
avoid the contract completion date to be ‘at large’. The approach by the SCL protocol literally illustrates that the SCL
protocol is not supporting the idea of apportioning the liability between overlapped delay caused by the employer and
the contractor.
To avoid the development of an impact of delay to a project, the SCL recommends proactive action in pursuing delay
events. The contractor should not delay in making claim for extension of time and the same thing goes for the
Contract Administrator in assessing entitlement for extension of time. Instead of the conventional approach by the
Contract Administrator to analyse the effect of the employer’s delay event after the event occurs, the Contract
Administrator is urged to award an extension of time as soon as possible for the period of delay or predicted period of
delay caused by an employer’s caused delay. It is a common dilemma in the construction industry where an
extension of time claim is only finalised until the final hour of the contract which can be considered too late. It will be
tricky to track previous causes of delays and its effects. In the occurrence of concurrent delay, it is advised to do a
separate assessment on the contractor’s entitlement for an extension of time and entitlement for cost related due to
the delay.
However to determine and granting extension of time as suggested by the SCL Protocol is difficult unless the
contractor is ready to come clean and plead guilty for every delay caused by them .
4.4 Public Works Department of Malaysia & Concurrent Delay
Public Works Department Malaysia (PWD) plays an important role in developing Malaysia. For more than a century
they have been vastly involved in building the nation. PWD has been executing various construction projects from
other ministries and government agencies such as building construction and maintenance, civil engineering
construction and maintenance such as highways and bridges. As the leading agency to manage a large portion of the
government construction projects, PWD has to ensure that the public’s money is managed efficiently and well spent
by keeping the projects run smoothly as planned and completed within time.
PWD and other government agencies practice is governed by the Treasury Instruction produced by the Ministry of
Finance Malaysia. In line with the Treasury Instruction, PWD produce its own Director’s General’s Instruction since
1980 as a guideline for PWD officers, individuals, consultants and contractors who are involved with the Malaysian
government managed by the PWD. The Director General Instruction contains PWD policies and guidelines on
contract administration, project management, project planning and others.
The first Director General Instruction regarding extension of time was created in 1985 . However, there was no
guideline or method on assessing extension or time. To ensure that the projects under the Ninth Malaysia Plan are
completed on time, PWD in line with the Treasury’s Circular came out with a guideline on methods of assessment for
extension of time in 2008 . The Malaysia Plan is an economic development plan applied by the Government of
Malaysia. Every Malaysia Plan consists of a five years period with the construction sector as the main priority. The
First Malaysia Plan started in 1966-1970 and Malaysia is currently in the final phase of the Ninth Malaysia Plan
(2006-2010)
In the latter Director General Instruction, concurrent delay issues were also briefly addressed. (1) Superintending
Officer named in the contract is reminded to take into consideration concurrent delay in assessing extension of time.
The SO shall deem delay affecting the actual progress of the work at the point the work is actually carried out instead
of when the work is planned to have been carried out . (2) For delay caused by variation instruction from the
employer, the employer should only consider the delay effect directly flows from the variation instruction. (3) Criticality
of the effect of the delay to the progress of work should be analysed based on the ‘critical path method’. The delay
event occurred should have affected the critical activities of the project in order to grant extension of time. The
approach in the guideline is consistent with Mr. Judge Seymour QC view in the case of The Royal Brompton Hospital
NHS Trust v Frederick Alexander Hammond & Others .
Even though a guideline on extension of time and concurrent delay was just recently issued in 2008, as discussed in
chapter three, there are only a single number of concurrent delay cases that was referred to the litigation for
settlement. The case discussed however was not even a government project which used another prominent standard
form of contract produced by the Malaysia Institute of Architect.
The guideline produced is a very simple yet very straightforward approach on dealing with concurrent delay. However
the author is of the opinion that more initiatives has to be undertaken by the PWD to provide awareness, up to date
knowledge and information regarding concurrent delay to the individuals directly involved in managing projects for the
government. As discussed in the previous chapter, concurrent delay is considered to be a major issue in the United
Kingdom construction industry. It is also a problem in the other parts of the world. PWD should equip their workforce
on the concurrent delay issue before it becomes a major problem in the Malaysia construction industry. Prevention is
always said to be better than cure.
4.5 Summary Chapter
In the fourth chapter, the proposed approach of SCL Delay and Disruption Protocol on concurrent delay was
analyzed. While there are people in the construction industry pleased to see the implementation of the guideline in
the SCL Protocol to manage delay and disruption, there are also others in the construction industry anxious with the
initiative to incorporate the SCL Protocol as a contract material because?. It is best to let the contracting parties
decide on the terms and conditions of their agreement including inclusion of the SCL Protocols. The Public Works
Department of Malaysia has just recently come out with a very brief guideline on concurrent delay. It may be seen as
a little bit too late compared to the demanding scenario on the matter in the United Kingdom. Fortunately for the
Public Works Department and the Government of Malaysia, there is no lawsuit being taken all this while as there are
still lacks of awareness of the contractor on their rights in concurrent delay issue. This is however only an assumption
of the author on the issue until a proper study is carried out on the matter.
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