The Extension of Time Claim Conundrum
by Kobus le Roux Director at Le Roux Consulting
www . lerouxconsulting . com
When most principal agents receive an extension of time claim they usually panic and freeze , like a rabbit caught in the headlights of a speeding vehicle on a desolate country road . The reaction is all natural even though some feel a sense of intellectual incapacity . The speeding vehicle bearing down on you is your client , intensely relying on you to supply him with answers and a review . The blinding light is a substantiating document called a construction programme , so vast and overpopulated with information that you are certain the human brain is incapable of thinking through it in the first place .
Principal agents will perhaps find comfort in the knowledge that the reaction does not necessarily betray a lack of intelligence , skill nor professional duty . It is a conundrum and one that is becoming increasingly complex and causing more and more disputes on construction projects .
The conundrum starts with a contractual obligation that is not underpinned by an industry standard . Locally as early as 2007 , the South African standard form of contract , namely the JBCC , followed
suit from their international counterparts by including sub-clauses 15.6.1 into their own edition , obligating the Contractor to submit a construction programme . When we turn to entitlement for a claim however , it does not mention the construction programme at all . The Contractor should nevertheless show how the circumstance effected a delay on his critical progress towards practical completion . The best way to demonstrate an effect on critical progress is through a critical path method programme ( CPM Schedule ) and this became a pseudo-practice of delay claim analysis .
Effectually , construction programmes became the primary tool for proving and evaluating the impact of delay on a project . This was emphasised in a study in 2014 , when I interviewed 15 professionals acting regularly as principal agents in terms of JBCC , all of them indicated that they use the contractor ’ s programme as basis for evaluating claims .
And so it should be , should it not ? I ’ m often asked this question and to answer it , we need to take several factors into account . It is at this point that our conundrum deepens . Construction programmes are not created equally . In fact , mostly they are created inadequately and with deficient logic . Adequate logic is the prerequisite for a CPM schedule and certainly for performing delay analysis . Our own practice can report that of the 8 projects we managed for developer clients during 2016 / 2017 , none of the programmes received from contractors adhered to even the most basic principles of good practice laid down by CIOB and PMI . On this point as an industry , we need to come clean , even though I refer to good practice guidelines , keep in mind that there is no acceptable objective standard for producing programmes . Even CIOB ’ s and PMI ’ s guidelines are not well-known , let alone widely accepted . Professionals would be able to confirm that mostly , the construction programmes they receive are very basic in nature or completely overcomplicated . Neither can be put to good use for managing and tracking a project .
We can conclude that there exists a general inadequacy and lack of standards to produce proper and workable programmes by contractors . On the odd occasion that one is produced , the professionals have limited access to it due to software constraints .
20 Time Claim Conundrum