Windows analysis in favour to the Employer

Member for

17 years 3 months

It seems there is confusion over the time at large principle.



Time at large is not conferred by a contract. Neither, as Mike correctly says can it occur when there is a functional EOT mechanism in the contract.



Time is said to be at large when the contractor’s obligation to complete by a specified date is rendered impossible by the act or ommission of the Employer. Construction contracts almost always involve some element of change, instigated by the employer, and that is the primary reason why EOT provisions are included, so that the Employer preserves his right to apply LADs for late completion.



If there were no EOT provision, then any act by the Employer, (eg, issuing a variation for additional work)will cause the contractor to miss the completion date. If the Employer was then still able to recover damages, then he would have benefitted from the obstruction he caused the contractor, which in inequtable and contrary to (English) common law (Mackay v Dick 1981).



The purpose therefore of the EOT is to award a new completion date to take account of the Employer’s action, thus restoring the right to damages from the new date.



If he fails to do so, or if there is no provision for revising the completion date, the Employer cannot rely on the damages provision and time is said to be at large, and the contractor is only obliged to complete the works within a reasonable time.



Clearly Mike understands this, sorry Charleston - I think you havent got it clear. It has nothing to do with status quo (or any other ageing rock-band for that matter). Neither does it come about by the failure to agree a revised date. If there is failure to agree, then that is a simple dispute to be referred. Time does not become at large at that point - rather it is a common law doctrine arising from Equity law.


Member for

19 years 10 months

Hi Charleston



Who said anything about time at large being awarded under the contract?



It can only be awarded in a tribunal and then very rarely.



I do have a personal sympathy to justice and if any side of the agreement screws up they deserve what they get. My aim is to assist the aggreived party.



Best regards



Mike Testro

Member for

20 years 3 months

Time at large is never part of any construction contract, hence it can not be awarded.



It is a status quo of project situation.



Ian,



Dont believe Mike. He has personal sympahty to contractors.



You maybe a small fish in the project heirarchy, but, you can make a lot of difference.



In one of my experience working in a prestigiuos project here in UAE, the contractor, a joint venture of international contractors, did submitted a revised program showing delays to project contractual completion. All my colleague accepted but only I did a convincing case not to accept the revised program.



I did englighten the whole project team are And the contractor, a joint venture of international contractor, re-submit a revised program showing completion date as per original contract dates of which we accepted.



Our form of contract is FIDIC.



Cheers,

Happy Planning and Scheduling

Member for

19 years 10 months

Hi Ian



Time at Large is rarely awarded and never if there is an EOT clause in the contract.



Congratulations on achieving step 1.



I would like to be a fly on the wall when the "bum" fight starts - much more interesting than a plain old bun fight.



Best regards



Mike T.

Member for

17 years 3 months

Charles,



Time at Large is something that i think the contractor is heading for. But in this instance, the ball is in their court, as EOT has been assesed and issued, to which they disagree, but with no back up.



Ken,



I took your advice and toughened up without the support of certain individuals, but with good support of other team members (QS’s). We now have a recovery plan, which is to reviewed, and can bum fight over money later. Step 1 accomplished!

Member for

20 years 3 months

Time change now... There are loads of contractors willing to jump and get projects just to hang on while riding the storm of recession.



It is developer time so contractor beware.



And this phenomena is worldwide.



Remember what happen to the race course project in UAE.



The contractor, a joint venture, was sacked as in sucked.



The employer/engineer/pm/ contractors are responsible in managing the project to ensure success: on schedule, within budget, and within specifications.



Cheers,

Happy Planning and Scheduling


Member for

17 years

Dear All,



If the EOT claim is valid, the employer has the responsiblity to assess and award EOT based on the information available.



The contractor may choose to submit a realistic schedule in the absence of EOT being awarded. Of course the completion date will not be acceptable to the employer.



The employer/engineer/pm is responsible to manage the contract.



Cheers..

Member for

20 years 3 months

Hi Ken,



I think you are correct if the contract say so. For example, if the contract is based on FIDIC, then, it is very clear as per FIDIC clause 14



a. There is a baseline program

b. The baseline program is delayed as per the opinion of the engineer

c. there is an instruction from the engineer to revised the program.



The thre condition must be present before the contractor can be



"Should he continue, he might be guilty of failing to proceed and will hand the right to determine to the employer"



in the absence of the trhee condition , then, there is time barring.



But Ian contract is as per NEC. I’m not familiar with NEC



Regards,

Happy Planning and Scheduling

Member for

17 years 3 months



Hi Charleston,



I wouldnt say time is at large in this instance. This cannot occure because of the acts or ommissions of the contractor. To my mind, it is a case of the contractor damaging his own entitlement as a result of his attempt to apply duress to the situation. Should he continue, he might be guilty of failing to proceed and will hand the right to determine to the employer.

Regards

Ken


Member for

20 years 3 months

How about the theory



"Time at Large"



Since both contractor and client representative can not agree on a contractual finish date, then, the project is in a stage called



IMHO



"Time at Large"



Cheers

Happy Planning and Scheduling

Member for

17 years 3 months



Ian, its telling that you said;



"there is only so much you can do without the support of the PM who thinks ’Breach’ and ’LD’s’ are dirty words",



such is the life of a technical professional! I always have to battle with my own team before doing battle with the other side!!! Engineers are often the worst for this attitude. Because they have an upbringing of problem-solving and seem to think that contractual QSs are the opposite (obstructive). Whilst they love the idea of adhering to method statements, they forget that the contract is itself only a method statement. If it tells you to do something and you dont, believing that the other side’s lawyers will remember in two years time how helpful you were in producing menus of options, then you havent been helpful at all - you were the root cause of a multi-million dollar mess!



Remember that if the contractor is "reluctant" to produce new plan to complete the remaining work until his EOT is forced through, then he is guilty of failing to mitigate and / or proceed diligently.

Member for

19 years 10 months

Hi Ian



Another factor that I forgot to mentuion is that if tasks are scheduled to finish ALAP they will automayically show critical.



Regarding the start flag on delivery of equipment - take the flag off and insert a delivery period bar of a reasonable duration and link it FS to the activity that kicks it off - eg Approval of Contractor’s Design - then see what happens.



As I said before two critical paths mean it has been rigged.



Best regards



Mike Testro

Member for

17 years 3 months

Hi Mike,



I have previously read your thread on SS FF links and totally agree (and even preached it!). I should of just used the word ’concurrent’ instead of the planning jarg. All lags have been removed (+ve and -ve), early and late constraints removed(late contraints being the contractors internal milestones).



There are now 2 CP’s, one being constrained by delivery of equipment by the Contractor as an alternative engineering method. Had they supplied this lead time in the first instance, then i wonder? but i can’t see it as manipulation to the programme, just the project!



I can’t see it as muscling in when wheighing up the risks are clear i.e. £100K for extra materials or 3 weeks late equating to £300K prelims. In my mind, if an activity is budgeted for regardless of it’s position in the programme and can be started early, then this should happen as a mitigation measure at no extra cost to the project as it has had no benefit to the client in the first instance.



Hi Ken,



Guilty as charged, but how else do you get the expereince? I have stated that their claim is insufficient. However, they are reluctant to submit a recovery plan until EOT is agreed, bearing in mind that the mitigation measures are closing in. But i agree with toughening up! However, there is only so much you can do without the support of the PM who thinks ’Breach’ and ’LD’s’ are dirty words, but i am sure they will be brought up now that the higher management are involved.



Thanks guys - will keep you informed.



Ian


Member for

17 years 3 months



Hi,



In my opinion, Mike’s advice is the best here, but I should emphasise something he did mention, which is more important that the general discussion suggests.



That is that the Contractor has to justify his entitlement in terms of cause and effect. Its tempting (and maybe exciting to some) to dive in and show your prowess at planning by doing your own analysis to prove to the contractor how he should have presented his case.



But this is not the same as treating his application fairly and reasonably - instead, its doing his job for him!!



You have to consider his application fairly and reasonably, but if he has failed to show cause and effect, criticality, concurrency and mitigation, he has failed in his duty and the application will fail.



If he refuses to proceed with the work until his demands are met, at best that is a breach of contract,at worst its economic duress.



Toughen up!!!

Member for

19 years 10 months

Hi Ian



Oh dear - I have been promoting a campaign on PP for the last month against the use of SS FF links - go and have a look at the thread I started called Ban These Planning Abominations.



It seems that the situation you are describing is something like repetetive use of formwork where the planned turn round of say four uses would be reduced to two or less.



That would be extra cost and not allowed.



The contractor is entitled to build in risk allowances in his bid and programme but the Employer cannot muscle in and change the circumstances and say that was the Contractor’s risk.



Take a look at the broader picture and see if there are sections of the work that can be conveniently done concurrently where they are now consecutive.



Look for lead lags + or - on links and any constraining start flags as these distort the critical path.



Is there more than one critical path? If so the programme has been manipulated to create them.



Are there any tasks with excessive float? If so can they be tightened up.



Check the calendar and work patterns to see if they reflect what is actually happening.



Best regards



Mike Testro

Member for

17 years 3 months

Thanks Mike - Will do mate.



Just one point.



"Start from the beginning and impact the events in strict chronological order and after each one review the critical path and see what change of sequence can be made with no cost to the contractor"



This is were it will become tricky because on some of the mitigation measures, which should be no extra cost to contractor as it has been budgeted for, is in fact not true in terms of actual costs, whereas the same material is to be used on FS activities on the CP. Switching to SS would mean more material, hence more actual costs.



I suspect that the works was won by them using this methodology to reduce the bid, but at their risk!



Cheers



Ian

Member for

19 years 10 months

Hi Ian



It seems as though your contractor is taking you for granted.



I am assuming that you have an electronic copy of the programme - it is after all a requirement in NEC.



Apart from the delay events is the work being achieved on or ahead of programme? If yes then the Contractor has hidden float.



Start from the beginning and impact the events in strict chronological order and after each one review the critical path and see what change of sequence can be made with no cost to the contractor.



Continue with all events one by one in strict chronological order adjusting the logic as you go.



The end result will be a reasonable interim EOT award - but nothing more.



Do not issue any award until you have received a substantive claim in electronic format that you can review properly + all possible mitigation.



You will have already done the excercise yourself so you will know the result.



If the contractor does not comply with the contract requirements tell him politely and contractually to go jump in the lake.



Impacted as Planned split to individual events is as detailed as you need to get.



I don’t like windows or time slice methods because they do not consider the effect of all events on the whole project.



They are also problematic when considering Concurrency.



Best regards



Mike Testro

Member for

17 years 3 months

Hi Mike,



Thanks for your valuable input.



One detail i missed out was a revision of the baseline between events. I agree with using a prospective analysis such as As Planned Impacted but went for a more detailed approach such as Windows, which i agree with you, is a retrospective approach.



Do you think i can use the windows approach upto the last progress report and use Time Impacted for future events?



I am concerned with the contractor using up his entitlement as we are still to receive a recovery plan after 4 months, bearing in mind there is no terminal float! Therefore, would not like to use the simplistic method as it would give more entitlement.



I understand it’s the contractor’s duty to submit a sufficient claim, but they just issue the lastest programme and request all for entitlement and will not move until something is granted.



Should of taken up chess!



Cheers



Ian

Member for

21 years 5 months

Hi Mike,



Totally agree with you, but I think you’re wasting your time telling Charlie to stop pontificating. I really wish that the private message facility was working, as a lot of the damage Charlie does with his erroneous information can be corrected with a private message to the recipient of his bad advice.



Hopefuly PP Admin will deal with the troublesome individuals who abused it get it back working again soon.



Chris Oggham


Member for

19 years 10 months

Hi Charleston



Impacted As Planned is the only event impact analysis method that can be used in ongoing construction work.



This is because there is no As Built information for work yet to be done.



Go back and read section 3.6 of the AACEI document and you will maybe get the idea.



The advice you have given is wrong and misleading.



Please in future stick to what you know and stop pontificating on matters that you do not understand.



Best regards



Mike Testro

Member for

20 years 3 months

Dear Ian,



Impacted as planned is for the lazy. It is very simplistic. It is not realiable. A lot of cases for claims were thrown out because of this methodology.



The fundametal defect is none consideration of actuals and concurrent delay by the contractor.



I would suggest you grasp AACEI. I’m now the promoter of this valuable piece of document so that we will have uniformity in approach to forensic planning analysis.



Cheers,

Happy Planning and Scheduling

Member for

19 years 10 months

Hi Ian



Under any form of contract the contractor is obliged to mitigate any delay provided it does not cost anything.



When ascertaining an EOT claim you are obliged to be fair and reasonable and take all matters into account.



Instead of using a Windows method try a simple Impacted as Planned where the events are impacted on the whole programme.



It may be that the contractor has built in a whole lot of float in his programme - an easy way of doing this is to set the calendar to a 6 hour day while working 8.



This is not allowed under NEC rules as any float buffers must be clearly displayed.



Please let me know how you are getting on.



Best regards



Mike Testro