SOCIETY OF CONSTRUCTION LAW DELAY AND DISRUPTION PROTOCOL

History of the Society of Construction Law

The Society of Construction Law (SCL) in the UK was formed in 1983 when the Founder Members
signed the initial constitution at the Whig and Pen Club in the Strand opposite the Law Courts. It
was formally launched by the Rt Hon Sir Derek Walker-Smith PC QC at the RIBA in London later
in 1983.

What is SCL Delay and Disruption Protocol

The protocol is to provide useful guidance on some of the common delay and disruption issues
that arise on construction projects, where one party wishes to recover from the other an extension
of time (EOT) and/or compensation for the additional time spent and the resources used to
complete the project. The purpose of the Protocol is to provide a means by which the parties can
resolve these matters and avoid unnecessary disputes. The Protocol is intended to be a balanced
document, reflecting equally the interests of all parties to the construction process.

The 2nd edition of the Protocol has been published in 2017 and supersedes the 1st edition and
Rider 1

What does the Protocol consist of

Core Principles: a summary of the 22 Core Principles;

1
Guidance Part A: an overview of delay, disruption, and acceleration
2 concepts

3 Guidance Part B: guidance on each of the 22 Core Principles

Guidance Part C: guidance on other financial heads of claim that often
4
arise in the context of delay and disruption
Appendix A: definitions and glossary for both defined terms in the
Protocol and terms commonly used in relation to delay and disruption;
and
5
Appendix B: lists of the typical records within each of the six categories
of records relevant to delay and disruption identified in the guidance to
Core Principle 1.

22 Core Principles talks about:-

1. Programme and Record: Contracting parties should reach a clear agreement on the
type of records to be kept and allocate the necessary resources to meet that
agreement.
2. Purpose of Extension of Time( EOT ):
 a. Benefit to the Contractor: - relieve the Contractor of liability for damages for delay
(usually liquidated damages or LDs) for any period prior to the extended contract
completion date and allows for reprogramming of the works to completion.
b. Benefit to the Employer: - establishes a new contract completion date, prevents
time for completion of the works becoming ‘at large’ and allows for
coordination/planning of its own activities.
3. Contractual procedural requirements:- The parties must comply with contractual
procedural requirement
4. Do not ‘wait and see’ regarding the impact of delay events (contemporaneous
analysis):- A ‘wait and see’ approach to assessing EOT is discouraged.
5. Procedure for granting EOT:-Contractor should be granted EOT to the extent that the
Employer Risk Event is reasonably predicted to prevent the works being completed by
the then prevailing contract completion date.
6. Effect of Delay: - For an EOT to be granted, it is not necessary for the Employer Risk
Event already to have begun to affect the Contractor’s progress with the works, or for
the effect of the Employer Risk Event to have ended.
7. Incremental review of EOT: - the full effect of an Employer Risk Event cannot be
predicted with certainty at the time of initial assessment by the CA, the CA should grant
an EOT for the then predictable effect.
8. Float as it relates to time
9. Identification of float
10. Concurrent delay – effect on entitlement to EOT
11. Analysis time-distant from the delay event.
12. Link between EOT and compensation.
13. Early completion as it relates to compensation.
14. Concurrent delay – effect on entitlement to compensation for prolongation
15. Mitigation of delay and mitigation of loss
16. Acceleration
17. Global claims
18. Disruption claims
19. Valuation of variations
20. Basis of calculation of compensation for prolongation
21. Relevance of tender allowances
22. Period for evaluation of compensation

The word delay means time-work activities taking longer than planned.

Delay is related with time- work activities taking longer than planned. This type of analysis help in
preparing EOT claim for the contractor. Time means money. Typical monetary claims by a
Contractor that are dependent upon an analysis of time (i.e., a delay analysis) are as follows: -
relief from LDs, compensation for time-related costs, if the Contractor has taken acceleration
steps in an attempt to mitigate the delay, compensation for those steps. ‘Disruption’ is concerned
with an analysis of the productivity of work activities, irrespective of whether those activities are
on the critical path to completion of the works. Delay and Disruption are inherently interrelated. A
loss of productivity (i.e. Disruption) can lead to delay and, if the impacted activities are on the
critical path, that can be critical delay. Hence, the Contractor may rely upon a disruption analysis
to support a critical delay claim in addition to its delay analysis. It is possible for work to be
disrupted and yet for the works still to be completed by the contract completion date. In this
situation, the Contractor will not have a claim for an EOT, but it may have a claim for the cost of
the lost productivity. The monetary consequences of delay and disruption can also overlap. The
question of who should bear the cost of delay and disruption is often contentious. Instead it sets
out guidance on the Contractor’s cost of prolongation and disruption. The Protocol makes
reference to both mitigation and acceleration. Mitigation simply means to make less severe or
lessen delay, disruption and/or the resultant costs and/or loss. Acceleration is a subset of
mitigation, and typically refers to the situation where additional costs are incurred to seek to
overcome all or part of delay or disruption.

For all delay, disruption and acceleration claims, the claim document must explain the legal basis
for entitlement, whether that is under the contract. This is because delay, disruption and
acceleration are not causes of action in their own right. In addition, the claim document must
explain the cause of the delay, disruption and/or acceleration and the remedies claimed.

1. Programme and records: - Contracting parties should reach a clear agreement on

the type of records to be kept and allocate the necessary resources to meet that
agreement Further, to assist in managing progress of the works and to reduce the
number of disputes relating to delay and disruption, the Contractor should prepare,
and the CA should accept a properly prepared programme showing the manner and
sequence in which the Contractor plans to carry out the works. The programme can
be more easily used as a tool for managing change and determining EOTs and periods
of time for which compensation may be due. Good record keeping and good use of
the programme removes a significant amount of this uncertainty. The types of records,
responsibility for both producing and checking those records, frequency with which
those records are to be updated or produced, distribution list, format of those records,
ownership, storage of, and access to, those records. Good record Keeping should be
made part of the tender document. Tenderers can accurately price their obligation
regarding good record keeping. Types of records required for managing (a)
programme (b) progress; (c) resource; (d) costs; (e) correspondence and
administration; and (f) contract and tender documents.

3. Contractual procedural requirements: The parties and the CA should comply with the contractual
procedural requirements relating to notices, particulars, substantiation, and assessment in relation
to delay events

4. Do not ‘wait and see’ regarding impact of delay events (contemporaneous analysis): Applications
for an EOT should be made and dealt with as close in time as possible to the delay event that gives
rise to the application. A ‘wait and see’ approach to assessing EOT is discouraged. Where the
Contractor has complied with its contractual obligations regarding delay events and EOT applications,
 the Contractor should not be prejudiced in any dispute with the Employer as a result of the CA failing
to assess EOT applications

The claimed event or cause of delay is in fact one in respect of which the Employer has assumed risk
and responsibility (i.e., that it is an Employer Risk Event). The Contractor will potentially be entitled to
an EOT only for those events or causes listed in the contract as being at the Employer’s risk as to time
that impact the critical path

Submission of a sub-network

The Contractor should generally submit a sub-network (sometimes called a ‘fragnet’) showing the
actual or anticipated effect of the Employer Risk Event and its linkage into the Updated Programme. It
should also be accompanied by such documents and records as are necessary to demonstrate the
entitlement in principle to an EOT

The sub-network referred to above should be prepared by the Contractor in the same manner and
using the same software as the Accepted Programme. It should comprise the activities and durations
resulting from the Employer Risk Event. The CA should consider the sub-network and, if agreed, the
sub-network should be inserted into the Contractor’s Updated Programme.

A guide to the amount of the EOT is obtained by using the Updated Programme.

a) the Programme should be brought fully up to date to the point immediately before the occurrence
of the Employer Risk Event
b) the Programme should then be modified to reflect the Contractor’s reasonable, realistic, and
achievable plans to recover any delays that have occurred, including any changes in the logic of
the Updated Programme proposed for that purpose
c) the sub-network representing the Employer Risk Event should then be entered into the
programme.
d) the impact on the contract completion dates should be noted.

5. Procedure for granting EOT: In general, this will be where the Employer Risk Event impacts the critical
path of the works and thus extends the contract completion date.

6. Effect of delay: For an EOT to be granted, it is not necessary for the Employer Risk Event already to have
begun to affect the Contractor’s progress with the works, or for the effect of the Employer Risk Event to
have ended.

7. Incremental review of EOT: The EOT should be considered by the CA at intervals as the actual impact
of the Employer Risk Event unfolds and the EOT increased (but not decreased, unless there are express
contract terms permitting this) if appropriate.

8. Float as it relates to time:

Def: Float is the amount of time by which an activity or group of activities may be shifted in time without
causing Delay to Completion.
 a) The ‘ownership’ of float causes particular arguments in disputes overentitlement to an EOT
b) Activities with the least float are generally considered to be on the critical path of the works

10. Concurrent delay – effect on entitlement to EOT

a) 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

b) where two or more delay events arise at different times, but the effects of them are felt at the same
time

c)There must be an effective cause of Delay to Completion for concurrent delay to exist

d)The grant of an EOT follows the outcome of the critical path analysis,

e) The Protocol’s position on concurrent delay is influenced by the English law ‘prevention principle’, by
virtue of which an Employer cannot take advantage of the non-fulfilment of a condition the performance
of which the Employer has hindered.