Last edited 20 Jul 2021

Delays on construction projects


[edit] Introduction

Construction projects tend to be one-offs. A project team comes together to create a unique development on a particular site under circumstances that will never be repeated.

They are very complex, requiring the co-ordination of permissions, people, goods, plant and materials. Construction can begin despite many ‘unknown’ matters such as incomplete design information, uncertain site conditions, suppliers, and so on. As a consequence delays are common.

In Modernising Construction: Report by the Comptroller and Auditor General, published in 2001, the National Audit Office found that 70% of government construction projects were delivered late.

Delays might be caused by:

Delays can be minimised by:

[edit] Types of delay

Very broadly, there are two types of delay

Construction contracts tend provide for four categories of delay:

A 'delay event' is an event or cause of delay, which may be either an employer risk event or a contractor risk event. Ref Society of Construction Law Delay and Disruption Protocol, 2nd edition, February 2017, published by the Society of Construction Law (UK).

[edit] Delays resulting from neutral causes

Neutral events (which may be 'relevant events'), which are not the fault of either party might entitle the contractor to an extension of time. Typically, this might include:

This does not necessarily entitle the contractor to claim loss and expense.

[edit] Delays that are the fault of the client

Where the progress of the works is materially affected by a matters for which the client is responsible, the contractor may be entitled to claim direct loss and expense incurred. Such matters might include:

These matters (described in some contracts as 'relevant matters') may also constitute 'relevant events' allowing the contractor to claim an extension of time, however a relevant matter need not necessarily result in a delay to the completion date, and so claims for loss and expense and claims for extensions of time do not necessarily always run together.

[edit] Delays that are the fault of the contractor

Where a delay which impacts on the completion date is caused by the contractor, the contractor will be liable to pay liquidated and ascertained damages (LADs) to the client.

For more information, see Culpable delay.

[edit] Concurrent delay

Concurrent delay refers to the complex situation where more than one event impacts on the completion date at the same time, but where not all of those events would entitle the contractor to claim an extension of time or loss and expense.

Some form of apportionment is likely here, however such situations are complex and each case will tend to have circumstances that are unique in some way. What is clear is that it is important for both parties to ensure they keep good records to demonstrate that the event did actually occur and that it did impact on the completion date.

If it is possible to carry out a critical path analysis that demonstrates the effect of events on the completion date, then this is beneficial, however, in the absence of such information it is likely that the courts will take a ‘common sense’ approach.

[edit] Compensation events

NEC contracts deal with these issues under the single heading ‘compensation events’. They do not treat compensation events as an allocation of blame, but rather an allocation of risk. Any risk that is not specifically identified as being attributed to the client is borne by the contractor.

[edit] Early warning

When it becomes reasonably apparent that there is a delay, or that there is likely to be a delay that could merit an extension of time, the contractor must give written notice to the contract administrator identifying the relevant event that has caused the delay.

On NEC contracts both parties must give early warning of anything that may delay the works. They should then hold an early warning meeting to discuss how to avoid or mitigate impacts on the project.

[edit] Mitigation and acceleration

The contractor is generally required to try to prevent or mitigate delay, even where the fault is not their own.

If there is nonetheless a delay, the client may wish to instruct acceleration of the works. An acceleration agreement can be used as a “wrap up” agreement expunging all outstanding claims for extensions of time and loss and expense.

Measures taken to accelerate the works might include

See also: International research into the causes of delays on construction projects.

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[edit] External references

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