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