Extension of Time Claim-UPDATED VS. IMPACTED

the full detail is

Dear Khalil,



Which methodology your contractor is using? Is he using As-Planned As Impacted or TIA?



If he is using As-Planned as Impacted, It very likely that the updated schedule completion date will not match the Impacted completion date.



Also, Entitlement is different from Actual completion.

The contracts that work on "likely or future delay" often causes alot of arguments. Wasi is right when he says a claim looks like some form of "virtual reality" and doesn’t look anything like what actually happened. BUT, if at the time the delay occurred that was the reasonably expected outcome then the Contractors entitlement to an EoT has accrued.



Second exercise is then to determine what that EoT should be. As the Contract Administrator normally has a period of time in which to assess the EoT, (eg 12wks in the JCT), then he may take into account what actually happens within that time period and grant an EoT accordingly. Yes, more arguments follow, the Contractor wanting his full "theoretical" EoT, the CA normally thinking something less is appropriate.



The general over riding objective I would argue is to arrive at an EoT that is a fair and reasonable period of time for the contractor to construct the works taking into account those delays that the contractor is not liable for.



This will involve some form of analysis, some common sense along with a fair, reasonable and impartial thought process. Sadly one or all of these are often missing from the process and disputes are the result.

Khalil

This is an interesting one. The programme submitted by the contractor for EOT sounds to me like what i call ’Virtual reality’. If that is the case, then what he is saying is that according to the logic in the programme ’accepted by the client’ at that point in time, the delays would have impacted the programme as shown. It doesnt necessarily mean that thats how the things went ahead in actual. Hence the actual update of the programme looks quite different.

If the EOT programme and the impact can be understood using common sense more than the logic of the programme, then it should be easier to determine.

First thing to ascertain is on what basis is the EoT entitlement to be assessed - this will come from the wording of the contract.



It will either be along the lines of "actual" delay incurred or otherwise something along the lines of "likely or possible or probable" delay.



This will determine when the contractors contractual right to an EoT occurs.

Khalil,



It’s too difficult to evaluate the whole scenario to envisage the root of EOT and their entitlement without going to the details of their contract.



For the sake of this forum my view is:

If the baseline is agreed and EOT is submitted based on the agreed baseline prior to the update of the progress their entitlement is still valid. It’s contractor choice to expedite their schedule at their own cost which will be compensated by EOT claims.



Case to case basis: If the EOT was not approved, according to the contract, what’s the time frame for the approval of EOT and have you notified the contractor that the EOT claim was rejected?



Worse scenario: If the contractor was not advise that their claim was not approve within the time frame in the contract that will be consider as an approve claim.



Another case: Is their any critical activities affected which cause delay of completing a milestone aside from the said activities updated as actual?



Rodel

These activities that finished earlier than suggested on the impact schedule, did they *start* earlier than on the impact schedule or were they completed in a shorter duration?



Maybe I misunderstood, but I thought you said that he completed certain of the baseline activities faster than had been agreed on the baseline (ie in a shorter duration), which would be accelleration, whether with or without cost



OTOH, if you are saying that the baseline said that one activity was affected by another (eg drawing approval before scaffolding erection) but in fact scaffolding erection can go ahead regardless (or interim approval was given or whatever) then reality would prevail. What you are actually saying in that case is that the EOT claim is spurious because there was in fact no effect on the *real* critical path by the client led delay, it only appeared so because there were errors in the baseline logic. Then no EOT.





/edit Gah, no, let me qualify that;



1. There was a clear error on the logic of the baseline. No EOT

2. There wasn’t an error in the baseline, but the contractor were able to agree on a different order of works which avoided the logic, allowing the CPA activities to be started earlier. EOT is due, but considered mitigated thus prolongation costs should be reduced (perhaps completely) as he will finish before the extended date.

3. If there was no error in the baseline and the contractor was able to shorten one or more of teh durations of subsequent CPA activities at no cost to himself then EOT is due as in item 2.

it sounds like to me



- Baseline is agreed

- Client led delays occur, resulting in a measurable impact the the start of one or more CPA activities, thus EOT would be considered resonable

- The contractor has subsequently actually managed to finish several of his CPA activities faster than originally agreed, thus effectively accellerating the schedule.



It’s never possible to get enough detail down on a forum post, but from what you’ve said, I would say (specific contract clauses to the contrary notwithstanding);



The EOT is still valid in full. The accelleration of certain activities in a programme (even CPA activities) cannot normally be used by the client to issue a "negative EOT" unless agreed with the contractor (for which he will lilkey want compensation)

That does not mean, however, that prolongation costs are due should he manage to complete earlier than the new contract completion date provided by the EOT (he can only claim what he actually spends), only that the client can’t levy LDs or other charges.

If the accelleration was apparant before the EOT was applied for then it’s possible that the contractor has demonstrably lied to you, which is somewhat different.

If the contractor has spent resources to achieve these accellerated dates without approval from you to do so then he has done so at his own cost.



In principle, the contractor is responsible to mitigate losses due to the client impacts as far as he can without cost to himself. Thus you can argue that if the contractor has managed to catch back a month (especially if he has done so without cost to himself) he should finish a month earlier than the EOT date and thus cost the client less in prolongation costs, but I’m not sure on the voracity of that.

Khahil,



That’s a very good question. In addition to Andrew queries, thus the EOT was submitted after or before the progress on the activities expected to be late? Is the activities lied on the critical path on the original approved baseline? (The contractors might have a work around or re-sequencing the activities and reconstructing the construction methodology to catch up on the delay but that doesn’t mean that their entitlements for EOT are gone)



Rodel

Khalil,

It is interesting to say the least the your subbie has given you the reason to at minimum question at length his EOT. I would say the simple fact the he has shown progress on activities that were expected to be late is of concern.

Does this sub contractor even know what he is doing?



I would suggest that a simple please explain with 1 or 2 examples of discrepency between the EOT program and the latest status update back to the subbie and let him do all the work.

Afterall he’s the one that wants the EOT i assume.



Question what was the date of practicle completion on the status update schedule compared to the original approved baseline?



Andy