SCL’s New Take on the Delay and Disruption Protocol
by Gabriel Mulero Clas
In June of this year, the Society of Construction Law (“SCL”) sent its members a draft of the second edition of its widely recognised Delay and Disruption Protocol.1 It follows the publication of a Rider published late last year about which this author wrote a previous article. Although the “2016 Draft” is meant to be consultatory, there are a number of improvements from the “2002 Edition” worth exploring before the final and definitive version is published sometime in the future. There have been many changes not all of which will be covered in this article and, in any case, I will only focus on changes other than those already included in the Rider.
Structure The first thing to notice is that the draft is organised differently from the 2002 Edition. The table below is a broad strokes cross-reference between the two versions. Please note that it is not a perfect cross-reference since most topics have been amended, expanded or moved.
Records and Programmes In general, the 2016 Draft is focused on providing, “practical and principled guidance on proportionate measures […] in relation to all projects, regardless of complexity or scale.”2 It offers the user options to respond to certain issues and makes specific recommendations wherever possible. This is especially prevalent in the robustness of the updated guidance on records and programming in Section 2. Clear Agreement The first notable improvement in Section 2 is that it recommends, “clear agreement on the type of records that should be kept […] prior to the time [the parties] enter into the contract (or at least at the outset of the works).”3 It recommends a proportionate and adequate approach to this agreement and spells out several guidelines,4 including, among others: a) agreeing on responsibilities for production and checks; b) agreeing on format; c) agreeing on ownership; d) establishing record keeping requirements prior to preparing the tender documents to allow accurate pricing from tenderers; e) the contemporaneous generation of records relevant to delay and disruption events;