Guideline for preparing comprehensive

extension of time (EoT) claim

Khaled Ahmed Ali Alnaas
a,
*
, Ayman Hussein Hosny Khalil
b
, Gamal Eldin Nassar
b
a
Consolidated Contractors Group (CCC), Doha, Qatar
b
Structural Engineering Department, Ain Shams University, Cairo, Egypt
Received 2 December 2013; revised 7 January 2014
KEYWORDS
Delay;
Concurrent delay;
Extension of time (EoT);
Disruption;
Baseline programme;
Programme updates and
revisions;
Claim;
Entitlement;
Time at large and oat
Abstract Any project faces delays and disruptions especially the mega/complex projects of today,
with many interfaces. Proving delay and/or disruption is not an easy task and it is a time consuming
process especially in the mega/complex projects with thousands of activities, lots of details and
interfaces with the involvement of many stakeholders. The different methods that are used to prove
delays, as explained in industry standards and handbooks, are theoretical and could be applied in
the small simple projects with few numbers of activities but the same methods cannot easily be
applied on mega/complex projects. Proving delays in mega/complex projects, whose schedules con-
tain thousands of activities with many interfaces and lot of causes for delay and disruption is a com-
plicated process and involves lots of details. When any degree of complexity in the project is
examined, it becomes more difcult for the project team to record the delays and disruption events
properly because they are always busy dealing with the site issues and other project pressures. In
order for the contractors to be successful, a time extension claim or disruption claims should ade-
quately establish causation and liability and assist in demonstrating the extend of time-related dam-
ages experienced as a direct result of the delay events relied upon. The process of recording the
delays and disruption is a dynamic process and needs continuous involvement from the planning
team with the support from all other departments.
2014 Production and hosting by Elsevier B.V. on behalf of Housing and Building National Research
Center.
Introduction
A practical approach that is recommended to be followed to
enable the contractor to prove the delays and build a well-sup-
ported claim for extension of time is introduced. The proposed
approach was based on a combination between the theoretical
information and practical experience. The sources for the theo-
retical information were Keane and Caletca [1] and Haidar and
Barnes [2] while the source of the practical experience was a case
study in PhD thesis prepared by the author [3]. This approach
consists of; (1) preparing the baseline programme (planning
*
Corresponding author. Tel.: +974 44237 414; fax: +974 44237 438.
E-mail addresses: kalnaas@ccc.com.qa (K.A.A. Alnaas), adec@
gega.net (A.H.H. Khalil), gamal_nassar_cec@yahoo.com (G.E.
Nassar).
Peer review under responsibility of Housing and Building National
Research Center.
Production and hosting by Elsevier
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Housing and Building National Research Center
HBRC Journal
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http://dx.doi.org/10.1016/j.hbrcj.2014.01.005
Please cite this article in press as: K.A.A. Alnaas et al., Guideline for preparing comprehensive extension of time (EoT) claim, HBRC Journal
(2014), http://dx.doi.org/10.1016/j.hbrcj.2014.01.005
stage), (2) proper programme updates, (3) accurate programme
revisions, (4) dening and introducing the delays to the pro-
gramme updates, (5) identifying the concurrent delays and split-
ting between the contractor and employer delays, (6) dening
the contractual basis for the entitlement, and nally (7) prepar-
ing the evidences of delay.
Preparing the baseline programme-planning stage
In order for any competent project management team to main-
tain a proper planned and controlled project, it is imperative to
have the following elements addressed prior to the planning
stage; (1) a well-dened scope of the project, (2) skilled and
experienced staff, (3) time and cost limits (programme and
budget), (4) identied risk contingencies (contingency for
known-unknown risks and management reserve for
unknown-unknown risks), (5) a proper work breakdown struc-
ture, (6) a well-established change management procedure, and
nally (7) clear completion criteria.
It is essential for the project management team to carry out
the following pre-planning tasks once the project is awarded:
a. Denition of project scope and contractual milestones
or sectional completion dates if any;
b. Dening the project objectives;
c. Prepare a project specic risk register dening all risk
that could occur during the project life cycle;
d. Assign a project team that can achieve the dened objec-
tives and denition of key roles and responsibilities for
each team member;
e. Dening all project stakeholders, and dening the
required strategies to deal with each stakeholder in
accordance with their interest, inuence and power;
f. Establishing project budget;
g. Development of the project management plan;
h. Development of project risk management plan;
i. Development of project execution plan;
j. Dening logistic plan; and
k. Preparation of project procurement plan with a clear
denition for any long lead items;
Based on the pre-planning tasks dened above, the contrac-
tor can produce an accurate baseline programme which is con-
sidered the solid base for any future claim. Baseline
programme represents the contractors approach to execute
the contract scope prior to the project commencement date
showing the planned productivity rates for all types of work
which is considered also the non-impacted benchmark for
any future claim.
Normally, preparation of the baseline programme starts
with the identication of the activities required to execute
the work in accordance with the project work breakdown
structure and contract plan and specication. Once all
activities have been dened, the interrelationships between
the activities should be determined in accordance with the
sequence of work and construction logic in order to nish
the work by the contract completion date. The number of
activities and interrelationships depends on the level of detail
required by the contract documents and increases based on
the complexity of the project.
The next step in producing the baseline programme is to
calculate the durations required to execute each activity on
the network. There are many factors which should be consid-
ered during this process such as, quantities, contractors
norms, availability and quality of manpower, machinery re-
sources, weather conditions, and site conditions as well as
other constraints. All resources should be loaded and allocated
to their relevant activities in terms of man-hours, machine-
hours and costs in order to produce the overall manpower
and machinery histograms that show the total planned number
required to perform the contract scope over the contract peri-
od. This will be considered the non-impacted benchmark to be
used for comparison purpose in case of any future claims for
delay, acceleration or disruption. In addition, the contractor
has the right to assume any missing information, but all
assumption made should be qualied clearly in the schedule
narrative that is submitted along with the schedule.
After time estimation and loading the resources, the
mathematical calculation using CPM will be conducted to
determine the chain of interrelated activities through the
network from the project start to its completion date. The
early dates and critical path will be dened during forward
calculation while the late dates and oats will be calculated
during the backward calculation.
Normally, the planning team conducts this process many
times because the completion date derived from the rst run
may not meet the contract completion date. Therefore, the
planning team should recalculate the durations of the critical
path activities and accordingly the related resources in order
to obtain the required date.
There is a big argument which inevitably arises during the
extension of time (EoT) claims review process which party
owns the oat? The contractor may argue that he owns the
oat because the contractor is the producer of the programme
and this reects how the contractor will carry out the work
with a sequence that allows the contractor to maximize the uti-
lization of resources. The contractor always gives himself ex-
ibility in the event that the contractor is not able to perform
the work as planned assuming a certain degree of risk. These
oats also allow the contractor re-sequencing of the network
to mitigate any delays and also the level of its resources. In
the case of any delay to the contractors progress for reasons
attributable to the employer, the contractor may argue that
it is entitled to an EoT even if the delay will not delay the con-
tract completion date on the basis that the oat has been con-
sumed due to employers risk events. This argument by the
contractor will be denied because no EoT would be considered
unless the project completion date has been delayed. On the
other hand, the employer may argue that as they own the
project, it also must own the oat and the contractor is not
entitled to any EoT unless the employer risk events delayed
the contract completion date on the basis of that the employer
or the project owns the oat. If the contract is silent (not spe-
cically identied within the clauses) on the oat ownership
and does not state clearly that the contractor owns the oat,
then the contractor has no case for EoT if the oats were uti-
lized due the employer risk events.
Keane and Caletca [1], Haidar and Barnes [2] and SCL [4]
agreed that if the contract is silent on the oat ownership, the
oat should be owned by the project and to be shared by the
employer and contractor. The oat should be available for
use by whoever needs it on the basis of rst come-rst served
[1] In addition, SCL [4] stated that if the employer uses part of
the oat rst and the contractor suffered nancially due to
2 K.A.A. Alnaas et al.
Please cite this article in press as: K.A.A. Alnaas et al., Guideline for preparing comprehensive extension of time (EoT) claim, HBRC Journal
(2014), http://dx.doi.org/10.1016/j.hbrcj.2014.01.005
non-availability of the oat when required, then the contractor
may ask for compensation.
Therefore, it is crucial to the contractor that the contract
states clearly who owns the oat to avoid such argument.
After completion of a baseline programme or as-planned
programme, and before submission to the employer for review
and validation, the contractor planning team should check the
following points to make sure that the baseline programme is
reliable and can be used as solid base/benchmarks for any
future claim;
1. Conrm that all activities have at least one predecessor,
and one successor activity i.e., there are no open ends. In
addition, the programme should have only one start and
one nish. Using a start to start relation only should
be restricted and nish to nish relation should be
used in parallel with start to start to close the loop;
2. Conrm there is at least one critical path which has a
continuous chain of activities from start to completion;
3. Conrm logic along the critical path, and near critical
paths, is reasonable and feasible (based on information
available at tender stage);
4. Conrm durations for all activities along critical, and
near critical paths, are reasonable;
5. Conrm oats are reasonable and there are no negative
oats;
6. Conrm not using of the mandatory constraints because
they are not exible and its total oats are always zero;
7. Calculate the planned resources required to carry out
the dened scope of work. In this process, the planned
productivity rates will be used to calculate the planned
man-hours required for each activity and accordingly
calculate the number of resources in accordance with
the following equations: (Based on current
project)Man-hours required = Budget Quantity Pro-
ductivity Rate (MH/UOM)No. of resources per
month = Man-hours required/260While 260 are the
total planned man-hours per month for each
worker260 = 26 working days per month 10 working
hours per day.
8. Conrm that all activities are loaded with planned
resources to nish the activities on its allocated dura-
tions. The contractor should look at the crew resource
table/prole and make sure that all required resources
are available or could be secured on time. If the required
resources are allocated to the programme without taking
into account the availability of the resources, then this
programme is not workable and reects a plan of failure;
9. Conrm 100% of the contract scope is represented in the
programme without additions or omissions;
10. Conrm that there are no delays, changes or intermedi-
ate milestones imposed by the employer incorporated to
the baseline schedule that would not have been known at
tender stage/contract documents;
11. Conrm all contractual milestones, constraints and sec-
tional completion milestones are represented accurately
in the programme;
12. Conrm appropriate working calendars have been
assigned;
13. Conrm appropriate regional/national holidays are
allowed for in the programme calendar;
14. Conrm all third party interfaces are well represented,
with appropriate notication for statutory services, ease-
ments and rights of way;
15. Conrm employers review times are adequate, and are
compliant with the contract.
After producing the baseline schedule, the contractor may
consider performing a what if analysis calculation in order
to examine that the programme will react to the changes and
the critical path/s will be impacted. Any identied errors or
concerns should be corrected so that the programme can be
used as a reliable basis for measuring delays and future claims
for extension of time and disruption.
The contractor should submit a programme narrative that
includes how the programme has been built, programme of
key dates (intermediate milestones and/or sectional completion
dates), productivity norms, work break down structure,
assumptions used, major quantity histograms, manpower
and machinery resource histograms, S-curves, etc.
In reality, taking into consideration experience of previous
and ongoing construction projects, the approval of baseline
programme by the engineer/employer is a time consuming pro-
cess. The contractor normally receives the engineer s com-
ments after six to eight weeks from the date of the
programme submission while the whole approval process takes
almost three to four months from the date of submission of the
programme by the contractor. The FIDIC [5] stated clearly in
clause 8.3 that Unless the Engineer, within 21 days after receiv-
ing a programme, gives notice to the contractor stating the
extent to which it does not comply with the Contract, the
contractor shall proceed in accordance with the programme, sub-
ject to his other obligations under the Contract. The Employers
Personnel shall be entitled to rely upon the programme when
planning their activities. The initial delays occurring during
the baseline programme approval period have no proper basis
to measure and are debatable. Hence the recommendation is
that the delays that occurred during this period should be
properly recorded and monitored by giving advance notices
to the employer for the requirement of any urgent information
by referring to the rst submittal of the program.
Proper programme updates
Construction projects by their nature are very dynamic and
subjected to changes compared with the original plans and
assumptions. A construction project could face many changes
when it comes to the construction phase such as but not lim-
ited to unforeseen soil conditions, delay to engineering and
procurement deliverables, adverse weather conditions, political
issues, changes to scope of work. Therefore, all parties in-
volved in any construction project such as employer, contrac-
tor, supervision consultant and any relevant stakeholders are
always keen to have accurate status reports of the project per-
formance and to be updated to envisage changes or delays to
the original plan.
Accordingly, the project programme should be continually
updated or revised whenever required, in accordance with the
frequency stated in the contract documents, to reect the cur-
rent site conditions and constraints. Delays to the engineering
and procurement deliverables including any changes and their
impacts on the critical and near critical paths of the project
Guideline for EoT claim 3
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must be included otherwise the project programme will be
outdated and misleading to all stakeholders. Failure by the
contractor to provide proper programme updates can result
in any delay and disruption claim being easily declined by
the employer.
The purposes of programme updates are; (1) to determine
the actual physical progress achieved compared to planned,
(2) provide a complete and accurate report to the actual pro-
gress compared with original plan, (3) it is often a contract
requirement and may be required for payment purposes (in
case of lump-sum price contracts), (4) it identies the changes
to the critical path and identies out-of-sequence activities,
which may require an adjustment to the plan for completing
the remaining work and (5) predict a more accurate comple-
tion date as of the date the project status is measured. Accurate
updated schedules can also be used to record the performance
of the employer, its representatives, the contractor and their
ability to meet commitment dates as stipulated in the original
plan. Periodical updates provide a record of the adherence to
timelines and completeness of each partys effort. These also
measure the impact of change to the work and any changed
methods or sequences of performance.
In addition, the programme updates should consider the
impact of any disruption event which affects the efciency of
the resources required to complete the work and thus increase
the duration of the affected activity or group of activities due
to such disruption.
A reliable programme update will give the project manage-
ment the opportunity to assess the impact of changes or
unforeseen events and implement timely remedial measures if
required in order to mitigate/avoid the impact of such changes
or unforeseen events. When documenting a projects history, a
delay analysis could be easily performed to identify the causes
of delays, measure the contribution of each party to such delay
and accordingly the impacts can be calculated. When updated
properly, the nal updated schedules can be relied upon as an
as-built schedule.
If the anticipated completion date becomes shifted beyond
the contract completion date after completing the programme
update due to the contractors risk events, then the contractor
is responsible to take all necessary actions to bring back the
completion date to the contract completion date. In case of
contractors failure to mitigate its delays, such delay is not
compensable and the contractor will be subjected to penalties
or liquidated damages unless the contractors delays occur
concurrently with the employers delay.
In all cases, the contractor is obligated to mitigate the im-
pact of any risk event regardless of the owner of the risk events
and show what actions have been taken to mitigate such delays.
Programme revisions
Taking into consideration the span of construction projects,
the frequent scope changes and the delays which can occur
during the execution phase, the approved baseline programme
becomes misleading and needs to be revised from time to time
to incorporate the changes, revise logic and sequence of work
and to incorporate the mitigation measures. The interval of the
programme revision depends mainly on the volume of changes
received during the period and validity of the construction
sequence of work along with the current site conditions and
constraints.
The revised program should be developed from the latest
updated schedule including all the delays, scope changes to
that point of time and the proposed mitigation measures. In re-
sult the project completion date may remain the same or go be-
yond the contractual completion date.
In the rst case, i.e. if the project completion date remains
same, there is no problem on the approval of the revised pro-
gram from the engineer and/or the employer. The approved re-
vised program will replace the approved baseline programme
and will be the new benchmark which will be the base for
any future claims for extension of time and/or disruption. It
will also be used for the progress updates, monitoring delays
and any other scope changes, etc.
However if the project completion date extends beyond the
contractual completion date, the revised programme will not
be approved by the engineer/employer until the related exten-
sion of time claim is approved. The engineer could give condi-
tional approval only for progress monitoring purpose or
sometimes delay the approval requesting additional informa-
tion and substantiations. In general, the approval of extension
of time claim by the employer is a very time consuming process
and normally takes four to six months and sometimes the
extension of time will be granted only at the time of expiry
of the original contractual completion date. During this time,
there is no approved revised program to monitor the delays
although the revised program is being updated only to monitor
the progress. Hence any analysis of delays in the extension of
time submittals becomes debatable and may lead to arbitra-
tion. The contractor will face problems in obtaining the exten-
sion of time in this process.
Thus in order to avoid or minimize the conicts in measur-
ing delay, we recommend to update the baseline programs
simultaneously in the case that revised programs are approved
for progress monitoring purpose only. The contractor should
submit the baseline and revised program updates to the em-
ployer or his representative to see exactly how the delays are
affecting the project execution. Although it is difcult to mea-
sure the delays on the baseline program updates (when there is
revised program in force with current logic and sequence of
work), this will help the contractor to ease out some of the
problems until the revised programs are approved.
Dening and introducing the delays to the programme updates
After completion of the programme update, it is necessary to
calculate the delays occurred or expected to be occurred, due
to the various risk events, especially those which are attributable
to the employer, throughout the project life cycle. Determining
the impact of the various risk events can be carried out through a
process called time impact analysis as dened in items 1.0 and
2.0, fragnets technique could be used as a tool to showthe effect/
impact of each risk event on the overall project schedule. Cush-
man et al. [6] dened the fragnets as fragnets is dened as a se-
quence of newactivity or activities that are proposed to be added to
the existing programme to demonstrate the inuence of delay and
also the method for incorporating delay and any impacts into the
schedule. The objective is to identify and quantify any time im-
pact associated with each risk event and calculate its time rela-
tionship to previous or current delays.
In order to have a successful claim, the contractor should
dene causation, liability, and damages related to each risk
event. Liability is always dened within the contract
4 K.A.A. Alnaas et al.
Please cite this article in press as: K.A.A. Alnaas et al., Guideline for preparing comprehensive extension of time (EoT) claim, HBRC Journal
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documents which state in detail the obligations of each party.
It also requires the demonstration of the causeeffect analysis
for each risk event, i.e. one which is an employers liability the
cause and the resulting impact on the contractors ability to
carry out the project works the effect.
Delays can be excusable, non-excusable, compensable and
non-compensable. There are a few tests which must be satised
for a delay to be considered excusable and compensable.
Excusable and compensable delays are those resulting due to
risk events beyond the contractors control and always attrib-
utable to the employer. If a delay event cannot be shown to be
excusable, it will be deemed non-excusable, and if a delay event
cannot be shown to be compensable, it will be deemed non-
compensable by default.
The contractor has the sole responsibility to prove that the
delays occurred are excusable and compensable by referring to
reliable critical path analysis. In order for the delay to be
excusable and compensable, the contractor has to prove the
following:
1. Delay is not attributable to events within its control and is
fully attributable to the employer risk events,
2. None of its own delay was ongoing concurrently with the
delay events being relied upon.
If the contractor proved that the exercised delay was due
the employer risk events but there was concurrent delay due
to the contractors risk event, then the delay will be excusable
but non-compensable and contractor is entitled for extension
of time without compensation. If the contractor can segregate
the portion of the excusable delay from that which is not, then
the contractor is entitled for extension of time with partial
compensation for the portion of the excusable delay only.
Identication of delay
Usually causes are categorized as contractor risk events, or em-
ployer risk events. Until any of these events are conrmed as hav-
ing caused actual delay or intended to cause expected delay, they
are only riskevents. The type of the contract is a factor indening
the risk events and its allocation. For example, lump sum price
and EPC contracts have the highest risks to the contractor and
lowest to the employer while the re-measured contracts has the
lowest risks to the contractor and the highest to the employer.
Contractors risk events in general are limited to the
following:
1. Wrong assumptions;
2. Poor planning;
3. Unrealistic activity duration or interrelationships;
4. Low productivity of resources;
5. Lack of manpower and machinery resources;
6. Poor quality of work; (extensive remedies)
7. Commitment to HSE requirement;
8. Financial issues; and
9. Late delivery of the required materials.
Any delays that can occur due to any such events are non-
excusable and non-compensable delays and the contractor is
responsible to recover such delays at its own cost otherwise
the contractor will be subjected to the application of penalties
or liquidated damage clauses as stated in the contract.
Employers risk events in general are the following:
1. Delay in handing over the job site;
2. Use or occupation by the employer of any part of the
permanent works, except as may be specied in the
Contract;
3. Different physical conditions from those provided dur-
ing the tender stage;
4. Changes to the original contract scope;
5. Late engineering deliverable;
6. Late procurement deliverables;
7. Frequent revisions for engineering deliverable;
8. Delay in approval above the contractual allowance;
9. Delay in payment,
10. Out of sequence for engineering and procurement
deliverables;
11. Suspension of the work;
12. Adverse weather conditions;
13. Changes to project specications;
14. Force Majeure (War, hostilities, invasion, act of foreign
enemies revolution, terrorism, sabotage by persons
other than the contractors personnel, or civil war within
the country, etc.); and
15. Existing underground utilities which are not shown in
the as-built drawing received by the contractor during
the tender stage.
Any delays occurring due to such events are excusable and
compensable delays but the contractor at the same time is
responsible to mitigate totally or partially the impact of such
delays.
In case of occurrence of any of the employer risk events, the
contractor should take necessary actions to record the delay
impact due to such events. Recording the delays is explained
in the following Section 4.2.
Recording delays
On any complex/mega scale project, there are frequent multi-
ple potential causes of delay to be investigated which can num-
ber in the hundreds and occasionally thousands. For each
potential delay event a delay notice should be prepared and
submitted to the employer within the time stipulated in the
contract documents. The delay notice should provide all
relevant information related to each delay event which are:
1. Employer request for change if any;
2. Detailed description of the change and the quantities
related to such change;
3. Related drawings and specication;
4. All correspondence (letters, transmittals, technical queries,
. . .)
5. Relevant contract clauses; and
6. Time impact analysis performed to quantify the impact of
such delay.
7. Estimated cost impact if any
Normally, the time impact analysis is carried out after the
programme update at the time of the occurrence of the risk
event. The risk event/events are introduced as a new activity
or activities to the project network to calculate the impact of
such events on the project completion date.
Guideline for EoT claim 5
Please cite this article in press as: K.A.A. Alnaas et al., Guideline for preparing comprehensive extension of time (EoT) claim, HBRC Journal
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Details of all the delay issues identied should be recorded
in a delay register. This register is designed to capture all
delays, regardless of how small they are, which could have con-
tributed to the cause of the critical delay incurred. Effective
project control teams will keep live register of early warning
notices. These projects are more likely to avoid long-term dis-
putes due to the transparency added to the perspective of both
parties allowing issues to be resolved in the rst instance not
using the concept of wait and see.
Understanding concurrent delays
Concurrent delay is one of the most important issues in
reviewing and validation of any extension of time claims.
Therefore, it is essential to establish a proper understanding
of concurrent delay and its effect on time impact analyses.
In general, concurrent delay can be described as a situation
in which two or more delay events are occurring at the same
time during all or a portion of the delay periods being con-
sidered. Whether such delays are excusable and compensable
depends on the terms of the contract, the cause of the de-
lays, the timing and duration of the delays, the party or par-
ties responsible for the delays, and the availability of oat
(contingency time in critical path analysis that allows the
non-critical activity or activities to be delayed beyond its
planned date without impacting the project completion
date).
There are three different situations in which concurrent
delay could occur. First is the situation in which, in two sep-
arate delays, both the employer and the contractor each
simultaneously delay an activity on critical path and, thus,
the overall project. A second type of concurrent delay occurs
when one party is being delayed by another party in two sep-
arate situations (different paths of activities) at the same
time, and both delays affect the overall completion of the
project. A third type of concurrent delay occurs when, in a
project involving multiple-prime contractors, three different
parties, interface contractors, cause delays that occur at the
same time and each delay has some impact on the overall
project completion date.
In all cases of concurrent delays, the contractor is entitled
for an extension of time but the additional compensation will
be declined unless the contractor can segregate the portion of
its delays from those that are attributable to the employer risk
events.
Contractual basis of the entitlement
The contractor should dene in a separate section of the claim
document the contractual basis of his entitlement for EoT and
should state clearly the contract clauses he has referred to in
his request such as the different clauses dened by the FIDIC
[5].
Preparing evidences of delay
When change orders, delays, or relevant issues occur, a time
impact analysis/delay analysis should be prepared to document
and record the facts and circumstances pertaining to each de-
lay event qualifying the delay and the impact on the project
completion date. The time impact analysis usually includes
the current updated schedule, excusable delays for which time
extensions may still be pending, job conditions encountered,
the progress achieved up to the point in time when the present
delay occurs and the mitigation action taken by the contractor.
The analysis should also include the pertinent facts associated
with the proof required to support the delay issue.
The following procedure is proposed to be followed to
illustrate a mechanism for preparation of a time impact anal-
ysis and documenting the impacts.
Proposed Checklist for Time Impact Analysis
1. Study the scope of the change/risk event, and the extent
of the delay encountered.
2. Issue a notice of delay to the employer once the contrac-
tor comes to know about the change/risk event. Submit-
tal of such notice/s should be within the allowed period
stipulated in the contract clauses.
3. Review all reference materials, such as appropriate con-
tract clauses, construction drawings, sketches, specica-
tions, vendor data, regulatory and administrative codes,
eld directives, correspondence, and cost estimates.
4. Prepare an accurate description of the changed condi-
tion or the delay encountered.
5. Identify the contracting parties who are responsible for
such change/risk event.
6. Identify all contracting parties who are affected by the
direct or indirect delay and request any participation
or documentation assistance that may be necessary.
7. All verbal instructions or instructions received vide e-
mails should be recorded and conrmed by the employer
in writing.
8. Determine which activity or activities on the project pro-
gramme is or are potentially impacted by the added,
delayed, changed work or any other risk event.
9. Review the programme and determine the scheduled
start and nish dates for all affected activities.
10. Establish the record-keeping systems and form contacts
with key project staff, identify and document the facts
associated with the change and/or delay issue.
11. Update the project programme, as of the date just before
the change or the risk event. In case of any delay exer-
cised due to contractors risk events, the contractor is
obliged to recover such delay totally or partially if pos-
sible. The contractor should describe in detail the action
taken to mitigate or recover its delays.
12. Prepare a fragnet analysis illustrating the sequence of
delay and dene its relationship to the current adjusted
schedule. The fragnet should identify the rst notice
involved and the sequence of activities necessary to
mobilize the required work, and it should clearly demon-
strate the effect or lack of effect of the expected delay on
the existing programme and the remaining activities
required to be performed.
13. Prepare a written narrative of the overall programme
analysis and derive a time impact position to be taken
for each delay. Factual references to contract clauses,
programme information, drawings, specications,
sketches, industry standards, minutes of meetings, tech-
nical queries and any written or oral communications
should be properly identied to support positions and
ultimate conclusions. Weekends, holidays, and any
recovery periods involved in the calculations should be
noted.
6 K.A.A. Alnaas et al.
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14. Monitoring of three categories of activities; critical path
(because those are the activities that will directly cause
delay), near-critical path (because those are the activities
that will be critical and will be delayed in the next per-
iod), and non-critical path (because those are the activ-
ities that will stack up at the end of the job and will
negatively impact the costs and quality at the same
time). Therefore, the impact of the change on the use
or absorption of available oat for the non-critical activ-
ities should be analyzed and reported with each pro-
gramme update. This will give an early notice that
another path is near-critical and another delay is
expected.
15. Make sure that any extension of time for excusable delay
is the direct result of the change or delay, and not for
any non-excusable cause.
16. Formal documentation of each situation is encouraged.
This can be accomplished by preparing a written time
impact analysis to support each change order proposal
and time extension request.
For multiple and simultaneous time impact analyses and/or
several sequential change orders or delay issues (portfolio of
events), the overall analysis should be performed chronologi-
cally and cumulatively. One of the primary concepts contained
in established case law is analyzing the delays on a programme
at the commencement of the delay. This method will ensure
that the programme includes the effect on the critical path of
all previous changes or delays and will also identify any
concurrencies.
Ian Wishart [7] advised that the contractors are advised to
establish and maintain a good document control procedure in
order to enable for the planning team and contract administra-
tor the huge quantities of both electronic and hard-copy re-
cords. The type of such records includes but not limited to;
the contractor estimate, details of the contractor costing sys-
tem and cost reports, internal reports to management, ad-
hoc studies and reports on prot and loss, time sheets, bonus
records, progress records and reports, programme updates,
payment applications and any other records which provide de-
tails of labor hours expended and/or progress achieved. This
will allow the contract administrator to access the required
information at any time to respond and manage any delay
event once this has occurred. The contractor is always re-
quired, under the contract clauses, to notify the employer of
its intention to make a claim for time and/or money within cer-
tain period dened in the contract. Failure by the contractor to
abide with the contract requirements for notication makes the
entitlement for the claim declined. Also, the contractor has to
submit all documents and records that support its claim for
time and/or money. The documents and records required to
develop a properly substantiated claim are shown herein below
in Table 1:
Approval of extension of time claims
Most contract administrators separate between the extension
of time claim and its related prolongation costs because the
approval of the extension of time claims is a lengthy process
by the engineer/employer especially when it comes to the nan-
cial part of it. The engineer and employer are always reluctant
to approve any claim for money. Therefore, it is highly recom-
mended for the contractor to split between the claim for exten-
sion of time and the claim for the related prolongation costs.
The contractor has to submit the extension of time claim rst
with a notication that the related prolongation cost claim will
be submitted once the extension of time claim is approved. The
critical issue for the contractor is the prevention of damages or
penalties.
Even so, the engineer/employer may take an inordinate
time to review and verify the extension of time claims often
requesting very detailed documents normally only requested
by an Arbitrator. This is also applicable on the interim exten-
sion of time claims. Most contracts restrict and stop the pay-
ment for contractors on the contract completion date if there
is no approved extension of time claim. The contractor will
not get paid for any work executed after the contract comple-
tion date if there is no approved extension of time by the em-
ployer. Consequently, the contractor will suffer nancially and
the cash ow will be greatly and negatively impacted which
could in turn cause disruption to the progress of performance
and extra costs. Only the most prestigious contractors could
continue performing in such case while small contractors will
be unreasonably impeded because they are not in a nancial
position that allows them to indirectly nance the job. If the
contractor exercised this situation, the contractor may claim
Time At Large.
Time at large is a very important concept and often missed
by the contractors despite that it could help them to avoid the
application of liquidated damages or penalties in case of the
approval delay by the engineer/employer for the extension of
time claims and allows the contractor to complete the work
within reasonable time.
The term time at large concept describes the situation where
there is no identied date for completion, either by absence
from the contract terms or arising from events and the opera-
tion of law. Time is said to be at large because the time or date
for completion is not xed before carrying out the work, but
determined after the work has been completed.
The concept of time at large is applicable only in the
common law countries such as United Kingdom, America
and Australia where there is no civil law or written law to be
followed. Common law depends on case by case analysis which
is based on reference to previous cases and the decisions previ-
ously made by the courts. Common law is not applicable in all
Arab countries as each country has its own civil law where
there are conditions that need to be followed. Civil laws may
not allow for time at large concept as described in the common
law as the liquidated damages cannot be waived. Time at large
could be applied partially in the countries under civil law by
allowing the contractor to complete the remaining works in
a reasonable time but the liquidated damages to be applied
after this reasonable time. In other words, under the civil
law, the liquidated damages cannot be waived completely
but to be applied after the reasonable time allowed for by
the concept of time at large.
The term time at large is usually used in construction con-
tracts in the situation where liquidated damages or penalties
are an issue. If the time at large then it is argued liquidated
damages cannot be applied, because there is no date xed from
which the liquidated damages can be calculated. In some situ-
ations, the date for completion may be relevant to termination
Guideline for EoT claim 7
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and the issue whether or not there has been breach of contract
by failure to complete.
Daniel Atkinson [8] stated that time is made at large in four
situations:
1. No time or date is xed by the terms of the contract by
which performance must take place or to be completed.
2. The time for performance has been xed under the con-
tract, but has been ceased to apply either by agreement or
by the act of prevention, which includes instructed addi-
tional works, or breach of contract by the employer with
no corresponding entitlement to extension of time.
3. The employer has waived the obligation to complete by the
specic time of date. An alternative solution is that the
employer is faced with a breach of contract by the contrac-
tor which would entitle the employer to terminate the
employment of the contractor and/or to bring to an end
the primary obligations of the parties to perform, but
instead elects to continue with the performance of the
contract.
4. The employer has interfered in the certication process to
prevent proper administration of the contract.
Many events may prevent completion on time including ad-
verse weather conditions, labor or material shortages, strikes or
local destructions, lack of information or plain human error,
interference, hindrance or prevention by the employer and due
to any breach of contract by the employer without EoT. The
rights and remedies of the parties depend upon the apportion-
ment of liability for the delay and the express terms of the con-
tract which limit the remedies otherwise. If part of the delay in
completion is at the risk of the contractor, then the employer
is entitled to damages for breach of the obligation to complete
on time. If the contract makes proper provision for liquidated
damages, then the measure of damages is the stated sums of liq-
uidated damages. If on the other hand the delay is at the risk of
the employer then the contractor will be entitled to damages for
breach of the particular obligation causing the delay.
Standard forms of contract apportion liability for delay
through extension of time clauses by dening the contractors
and employers risk events.
The wording of the extension of the time clause will deter-
mine when and the extent to which the risk of delay passes
from the contractor to employer. The description of the partic-
ular event is all important. If notices and/or substantiation are
a condition of an entitlement to an extension of time, then the
risk will only pass to the employer if and/or when the contrac-
tor provides that information.
Both the order of variations and the employer breaches of
contract are acts of prevention that may delay the contractor.
If the extension of time clause does not entitle the contractor to
have the time for completion extended for delays actually by
such acts of prevention, the contractor then will no longer be
under an obligation to complete within the specied period.
Table 1 List of required records to establish properly substantiated claim.
S.N. Record description Frequency
1 Baseline schedule Once in the project life cycle. Should be submitted within certain
period from the project eective date.
2 Method of construction identies the
works that are intended
to be executed by subcontractors.
To be submitted with the baseline schedule. Also, should be updated
and submitted with any new schedule revision.
3 Planned manpower and machinery resources To be submitted with the Baseline schedule and its revisions.
4 Programme updates Could be weekly or monthly based on the contract requirements
(*)
5 Notices for delay Once the contractor knows about the event and within
certain period as stipulated in the contract documents.
Should be prepared for each event.
6 Programme revisions indicating changes and
its required resources and
the impact on the contract completion date.
In case of major changes or the current
programme becomes out dated or misleading.
7 Delay analysis With each programme update. It is recommended to be done weekly.
8 Time impact analysis showing the potential impact of
the changes prior to carrying out the changes.
Once the contractor knows about the event.
Should be done for each delay event.
9 Cause and eect analysis for each delay/disruption event. Once the contractor knows about the event.
Should be done for each delay event.
10 Productivity analysis reports Weekly
11 Minutes of the daily, weekly, and meetings. Upon request
12 Minutes of any special meeting. Upon request
13 Change of work notices Within certain period, as dened in the contract,
from the date that contractor came to know about the change
14 Daily progress reports Daily
15 Weekly progress reports Weekly
16 Monthly progress reports Monthly
17 Claim register Monthly
18 Delay events log Monthly
(*)
It is recommended for the contractor to perform the schedule updates on a weekly basis even when the contract requires monthly updates.
This will allow the contractor to keep a highly accurate history that would enable the contractor to prepare a well-supported claim.
8 K.A.A. Alnaas et al.
Please cite this article in press as: K.A.A. Alnaas et al., Guideline for preparing comprehensive extension of time (EoT) claim, HBRC Journal
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His obligation is instead only complete within a responsible
period. Time is said to be longer. What is a responsible time
is a question of fact and all the factual circumstances must
be taken into account.
If the contract provides for the deduction of liquidated
damages should the contractor overrun the time for comple-
tion, then the provision will no longer be enforceable time is
at longer. There if no specic certain date from which liqui-
dated damages can run. The employer will then only be enti-
tled to damages that he can prove in the normal way if he
can establish that contractor has not completed within a rea-
sonable time that was agreed by both parties.
Conclusion
Proving delay and/or disruption is not an easy task and will be
a time consuming process especially in the mega/complex pro-
jects with thousands of activities, lot of details and interfaces
with involvement of many stakeholders. It needs a lot of effort
especially the process of recording and analyzing each delay
event. It is highly recommended not to follow the concept of
wait and see which results in contractors submitting their
claims for extension of time at the end of the project or after
the contract completion date. The contractor is requested to
submit the EoT claim whenever he believes that the delay event
will delay the project completion date and the delay event is
excusable and compensable. The contractor can submit more
than one EoT claim based on the delay or risk events that
the contractor might face.
References
[1] P.J. Keane, A.F. Caletca, Delay Analysis in Construction
Contracts, Wiley-Blackwell, 2008.
[2] Ali Haidar, Peter Barnes, Delay and Disruption Claims in
Construction A Practical Approach, Thomas Telford Limited,
Institution of Civil Engineers, 2011.
[3] Khaled A.A. Alnaas, PhD Thesis, A systematic approach to
prove disruption and delay in mega projects, Ain Shams
University, 2014.
[4] SCL The society of construction law, delay and disruption
protocol, October, 2002.
[5] FIDIC, International Federation of Consulting Engineers,
Conditions of Contract for Construction, for Building and
Engineering Works Designed by the Employer, Red Book,
Multilateral Development Bank Harmonised Edition, 2010.
[6] Robert F. Cushman, John D. Carter, Paul J. Gorman, Douglas
F. Coppi, Proving and Pricing Construction Claims, third
edition., Wolters Kluwer Law & Business, 2001.
[7] Ian Wishart, Delay and Disruption - a separable duo,
Construction Law J. (2012).
[8] Daniel Atkinson, Time at large, adjudication, arbitration, and
mediation by Atkinson-law with articles on construction, April,
2007.
Guideline for EoT claim 9
Please cite this article in press as: K.A.A. Alnaas et al., Guideline for preparing comprehensive extension of time (EoT) claim, HBRC Journal
(2014), http://dx.doi.org/10.1016/j.hbrcj.2014.01.005