SOCIETY OF

CONSTRUCTION LAW
DELAY AND DISRUPTION
PROTOCOL

2nd edition
February 201 7

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ISBN 978-0-9543831-2-1
CONTENTS

INTRODUCTION ........... ............................................................................................ 1

CORE PRINCIPLES .................................................................................................. 5
1. Progrannne and records .................................................................................... 5
2. Puipose ofEOT ................................................................................................. 5
3. Contractual procedural requirements ................................................................ 5
4. Do not 'wait and see' regarding impact of delay events
(contemporaneous analysis) .............................................................................. 5
5. Procedm·e for granting EOT .............................................................................. 6
6. Effect of delay ................................................................................................... 6
7. Incremental review of EOT .............................................................................. 6
10. Concunent delay - effect on entitlement to EOT ............................................. 6
11. Analysis time-distant from the delay event ...................................................... 7
12. Link between EOT and compensation .............................................................. 7
13. Early completion as it relates to compensation ................................................. 7
14. Concunent delay - effect on entitlement to compensation for
prolongation ...................................................................................................... 7
15. Mitigation of delay and mitigation ofloss ........................................................ 7
16. Acceleration ...................................................................................................... 7
17. Global claims .................................................................................................... 8
18. Dis111ption claims .............................................................................................. 8
19. Valuation of variations ...................................................................................... 8
20. Basis of calculation of compensation for prolongation .................................... 8
21 . Relevance of tender allowances ........................................................................ 8
22. Period for evaluation of compensation ............................................................. 8
GUIDANCE PART A: DELAY, DISRUPTION & ACCELERATION
CONCEPTS ..................................................................................................... 9
GUIDANCE PART B: GUIDANCE ON CORE PRINCIPLES .......................... 12
1. Progrannne and records .................................................................................. 12
Introduction to records ............................................................ 12
Fo1mat and storage ofrecords ................................................. 14
Categories of records .............................................................. 14
Progrannne .............................................................................. 18
2. Puipose of EOT ............................................................................................... 22
3. Contractual procedural requirements ..............................................................23

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4. Do not 'wait and see' regarding impact of delay events
(contemporaneous analysis) .................................... ........................................ 23
Contemporaneous analysis of delay ........................................ 24
5. Procedure for granting EOT ............................................................................ 26
6. Effect of delay ................................................................................................. 27
7. Incremental review ofEOT .................................... ........................................ 27
8. Float as it relates to time ................................................................................. 28
9. Identification of float ...................................................................................... 29
10. Concunent delay - effect on entitlement to EOT ........................................... 30
Meaning of concunent delay .................................................. 30
Dealing with concunent delay ................................................ 31
11. Analysis time-distant from the delay event .................................................... 32
Different methods of delay analysis ....................................... 33
12. Link between EOT and compensation ........................................................... 38
13. Early completion as it relates to compensation ............................................... 38
14. Concunent delay - effect on entitlement to compensation for
prolongation .................................................................................................... 39
15. Mitigation of delay and mitigation ofloss ...................................................... 40
16. Acceleration .................................................................................................... 41
17. Global claims .................................................................................................. 42
18. Dis111ption claims ............................................................................................ 43
Dismption analysis .................................................................. 44
Methods of dismption analysis ............................................... 46
Productivity-based methods .................................................... 46
Cost-based methods ................................................................ 49
Fmther guidance ..................................................................... 50
19. Valuation of variations .................................................................................... 5 1
20. Basis of calculation of compensation for prolongation .................................. 52
21 . Relevance of tender allowances ...................................................................... 53
22. Period for evaluation of compensation ........................................................... 53
GUIDANCE PART C: OTHER FINANCIAL HEADS OF CLAIM .................. 54
1. Claims for payment of interest.. ...................................................................... 54
Interest pursuant to contract .................................................... 54
Interest as damages/finance charges ....................................... 54
Time when interest sta1ts to nm .............................................. 54

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 Statut01y interest on debts ....................................................... 55
2. Head office overheads and profit.. .. ................................................................ 55
3. Claim preparation costs ................................................................................... 57
APPENDIX A Definitions and glossaiy .................................................................... 60
APPENDIX B Record types and examples ............................................................... 72

SCL Delay and Disruption Protocol 211<1 Edition: February 2017

INTRODUCTION
A. The object of the Protocol is to provide useful guidance on some of the
common delay and dismption issues that arise on constmction projects, where
one paiiy wishes to recover from the other an extension of time (EOT) and/or
compensation for the additional time spent and the resources used to complete
the project. The pmpose of the Protocol is to provide a means by which the
paiiies can resolve these matters and avoid unnecessary disputes. A focus of
the Protocol therefore is the provision of practical and principled guidance on
propotiionate measures for dealing with delay and dismption issues that can be
applied in relation to all projects, regardless of complexity or scale, to avoid
disputes and, where disputes ai·e unavoidable, to limit the costs of those
disputes. On ce1iain issues, the Protocol identifies vai·ious options, with the
choice of the most appropriate being dependent on the nature, scale and level
of complexity of a paiiicular project and the circumstances in which the issue
is being considered. On other issues, the Protocol makes a recommendation as
to the most appropriate course of action, should that be available.

B. It is not intended that the Protocol should be a contract document. Nor does it
pmpoti to take precedence over the express tenns and governing law of a
contract or be a statement of the law. It represents a scheme for dealing with
delay and dismption issues that is balanced and viable (recognising that some
of those issues do not have absolute answers) . Therefore, the Protocol must be
considered against (and give way to) the contract and governing law which
regulate the relationships between project pa1iicipants.
C. The guidance in the Protocol is general in nature and has not been developed
with reference to any specific standai·d fotm contracts. To do othe1wise would
not have been practical given the multitude and divergence of standard fotm
contracts. Rather, the guidance is intended to be generally applicable to any
contract that provides for the management of change.
D. Delay and dismption issues that ought to be managed within the contract all
too often become disputes that have to be decided by third parties
(adjudicators, dispute review boards, ai·bitrators, judges). The number of such
cases could be substantially reduced by the introduction of a transpai·ent and
unified approach to the understanding of programmed works, their expression
in records, and the allocation of responsibility for the consequences of delay
and dismption events.
E. Overall, the Protocol aims to be consistent with good practice, but is not put
f01wai·d as the benchmai·k of good practice throughout the constmction
industiy. So as to make its recommendations more achievable by project
paiiicipants, the Protocol does not strive to be consistent with best practice.
That is not intended to deti·act from the benefits to project paiiicipants of
applying best practice.
F. Users of the Protocol should apply its recommendations with common sense.
The Protocol is intended to be a balanced document, reflecting equally the
interests of all paiiies to the constiuction process.

SCL Delay and Disruption Protocol 2nd Edition: February 2017

G. The 2nd edition of the Protocol has been published in 2017 and supersedes the
1st edition and Rider 1.
H. The strncture of the 2nd edition is set out in the above table of contents. It is
divided into the following sections:
(a) Core Principles: a summaiy of the 22 Core Principles;
(b) Guidance Pait A: an overview of delay, dismption and acceleration
concepts;
(c) Guidance Pait B: guidance on each of the 22 Core Principles;
(d) Guidance Pait C: guidance on other financial heads of claim that often
ai·ise in the context of delay and dismption;

(e) Appendix A: definitions and glossaiy for both defined tenns in the
Protocol and te1ms commonly used in relation to delay and dismption;
and
(f) Appendix B: lists of the typical records within each of the six
categories of records relevant to delay and dismption identified in the
guidance to Core Principle 1.
I. The 2nd edition represents the output of a paitial review of the 1st edition
against the background of: (a) developments in the law and constrnction
industiy practices since the Protocol was first published in 2002; (b) feedback
on the uptake of the Protocol since that time; (c) developments in technology
since 2002; (d) the scale oflai·ge projects having increased, leading to a wider
divergence between small scale and lai·ge scale projects; and (e) anecdotal
evidence that the Protocol is being used for international projects as well as
UK projects. On this last point, while it may be the case that paiticipants in the
international constmction legal market find the Protocol a usefol reference
document, the review committee decided that the Protocol should continue to
focus upon the UK constiuction mai·ket and, in paiticulai-, the English law
position.
J. In producing the 2nd edition, a wholesale review of the 1st edition was not
caiTied out Rather, the review was liinited to the eight following issues:
(a) whether the expressed preference should remain for time impact
analysis as a programining methodology where the effects of delay
events ai·e known;
(b) the menu and descriptions of delay methodologies;
(c) whether the Protocol should identify case law that has referenced the
Protocol;
(d) records;
(e) global clailllS and concmTent delay - in light of recent case law;
(f) approach to consideration of claims (prolongation I dismption - time
and money) during cmTency of project;

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 (g) model clauses; and
(h) the menu and descriptions of dismption methodologies.
K. Some of the key changes introduced by the 2nd edition are as follows: -
(a) There is more developed guidance on record keeping in relation to
delay and dismption issues, with a focus on general principles that a.re
applicable to all projects, regardless of their complexity or scale, and
recognition of technological advancements which impact upon record
keeping.
(b) The contemporaneous submission and assessment of EOT claims
(rather than a 'wait and see' approach) is elevated to a core principle.
(c) There is no longer a prefeITed delay analysis methodology where that
analysis is canied out time-distant from the delay event or its effect.
The 2nd edition instead identifies the factors that ought to be taken into
account in selecting the most appropriate methodology for the
pa.iticula.r circumstances and provides an overview of a number of
delay analysis methodologies in common use as at the date of
publication.
(d) The approach to concunent delay in the original Protocol has been
a.mended in this 2nd edition to reflect recent case law.
(e) There is recognition of an appa.i·ent trend for the constmction legal
industiy and the comts to take a more lenient approach towards global
claims, albeit the risks in proceeding on this basis remain.
(f) There is more developed guidance on dismption and a broader list
(with explanations) of different types of analyses that might be
deployed to suppoit a dismption claim. As in the 1 st edition, the
preference remains for a measmed mile analysis, where the requisite
records a.i·e available and it is properly ca.iTied out.
(g) The model conti·act clauses have been deleted, which is more
consistent with the Protocol's approach that it should not be
inco1porated as a conti·act document.
(h) The graphics illustrating points in the Protocol have been deleted.
L. The 2nd edition committee has canied out non-exhaustive research on the case
law (both within the United Kingdom and internationally) that has referenced
the Protocol. A summa.iy of these cases is contained with the on-line version
of the Protocol on the Society of Constiuction Law website. This summa.iy
does not constitute legal advice and it should not be relied upon (in pa.iticula.i-,
because it is updated infrequently).
M. Both the 1st and 2nd editions of the Protocol were produced by drafting
committees made up of members of the Society of Consti11ction Law. The
membership of the two drafting committees is set out prior to Appendix A.
The views and opinions expressed and the aims identified in the Protocol a.i·e
those adopted by the drafting committees. They are not necessa.i·ily the views

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 and opinions or aims of any paiticular member of the drafting committees or
member of the Society.
N. The inf01mation, recommendations and/or advice contained in this Protocol
(including its Guidance Sections and Appendices) ai·e intended for use as a
general statement and guide only. Neither the Society of Construction Law nor
any committee or member of the Society nor any member of the committees
that drafted the Protocol accept any liability for any loss or damage which may
be suffered as a result of the use in any way of the info1mation,
recommendations and/or advice contained herein and any person using such
info1mation or drafting conu·acts, specifications or other documents based
thereon must in all cases take appropriate professional advice on the matters
refeITed to in this publication and are themselves solely responsible for
ensuring that any wording taken from this document is consistent with and
appropriate to the remainder of their material.
The Society of Cons1I11ction Law welcomes feedback on the Protocol. Please contact
the Society at feedback@eotprotocol.com or write to SCL Adminisu·ation, 234 Ashby
Road, Hinkley, Leices LElO l SW.

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CORE PRINCIPLES
These are the Core Principles of the Protocol. Guidance on these Core Principles ;s
contained in Part B.

1. Programme and records

Contracting pai1ies should reach a cleai· agreement on the type of records to be kept
and allocate the necessaiy resources to meet that agreement. Further, to assist in
managing progress of the works and to reduce the number of disputes relating to delay
and disrnption, the Contractor should prepai·e and the Contract Administrator (CA)
should accept a properly prepared programme showing the manner and sequence in
which the Contractor plans to cai1y out the works. The programme should be updated
to record actual progress, vai1ations, changes of logic, methods and sequences,
mitigation or acceleration measures and any EOTs granted. If this is done, then the
programme can be more easily used as a tool for managing change and detennining
EOTs and periods of time for which compensation may be due.

2. Purpose of EOT
The benefit to the Contractor of an EOT is to relieve the Contractor of liability for
dainages for delay (usually liquidated damages or LDs) for any period prior to the
extended contract completion date and allows for reprograinming of the works to
completion. The benefit of an EOT for the Employer is that it establishes a new
contract completion date, prevents time for completion of the works becoming 'at
large' and allows for coordination I planning of its own activities.

3. Contractual procedural requirements

The pai1ies and the CA should comply with the contractual procedural requirements
relating to notices, pai1iculai·s, substantiation and assessment in relation to delay
events.

4. Do not 'wait and see' regarding impact of delay events

(contemporaneous analysis)
The pai1ies should attempt so fai· as possible to deal with the time impact of Employer
Risk Events as the work proceeds (both in tenns of EOT and compensation).
Applications for an EOT should be made and dealt with as close in time as possible to
the delay event that gives rise to the application. A 'wait and see' approach to
assessing EOT is discouraged. Where the Contrnctor has complied with its contractual
obligations regai·ding delay events and EOT applications, the Contractor should not be
prejudiced in any dispute with the Employer as a result of the CA failing to assess
EOT applications. EOT entitlement should be assessed by the CA within a reasonable
time after submission of an EOT application by the Contrnctor. The Contrnctor
potentially will be entitled to an EOT only for those events or causes of delay in
respect of which the Employer has assumed risk and responsibility (called in the
Protocol Employer Risk Events) that impact the critical path.

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5. Procedure for granting EOT
Subject to the contract requirements, the EOT should be granted to the extent that the
Employer Risk Event is reasonably predicted to prevent the works being completed
by the then prevailing contract completion date. In general, this will be where the
Employer Risk Event impacts the critical path of the works and thus extends the
contract completion date. This assessment should be based upon an appropriate delay
analysis, the conclusions derived from which must be sound from a common sense
perspective. The goal of the EOT procedme is the asce1tainment of the appropriate
contractual entitlement to an EOT; the analysis should not strut from a position of
considering whether the Contractor needs an EOT in order not to be liable for
liquidated damages.

6. Effect of delay
For an EOT to be granted, it is not necessaiy for the Employer Risk Event ah-eady to
have begun to affect the Contractor 's progress with the works, or for the effect of the
Employer Risk Event to have ended.

7. Incremental review of EOT

Where the full effect of an Employer Risk Event cannot be predicted with ceitainty at
the time of initial assessment by the CA, the CA should grant an EOT for the then
predictable effect. The EOT should be considered by the CA at intervals as the actual
impact of the Employer Risk Event unfolds and the EOT increased (but not decreased,
unless there ai·e express contract tenns pennitting this) if appropriate.

8. Float as it relates to time

Float values in a programme ai·e an indication of the relative criticality of activities
and, generally, when float is exhausted, the completion date will be impacted. Unless
there is express provision to the contra1y in the contract, where there is remaining
total float in the programme at the time of an Employer Risk Event, an EOT should
only be granted to the extent that the Employer Delay is predicted to reduce to below
zero the total float on the critical path affected by the Employer Delay to Completion
(i.e. if the Employer Delay is predicted to extend the critical path to completion).

9. Identification of float
The identification of float is greatly assisted where there is a properly prepared and
regulai·ly updated programme, the Accepted/Updated Programmes.

10. Concurrent delay- effect on entitlement to EOT

Tme concunent delay is the occunence of two or more delay events at the same time,
one an Employer Risk Event, the other a Contractor Risk Event, and the effects of
which ai·e felt at the same time. For conclllTent delay to exist, each of the Employer
Risk Event and the Contractor Risk Event must be an effective cause of Delay to
Completion (i.e. the delays must both affect the critical path). Where Contractor
Delay to Completion occurs or has an effect conclllTently with Employer Delay to
Completion, the Contractor's conclllTent delay should not reduce any EOT due.

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11. Analysis time-distant from the delay event
Where an EOT application is assessed after completion of the works, or significantly
after the effect of an Employer Risk Event, then the prospective analysis of delay
refeITed to in the guidance to Core Principle 4 may no longer be appropriate.

12. Link between EOT and compensation

Entitlement to an EOT does not automatically lead to entitlement to compensation
(and vice versa).

13. Early completion as it relates to compensation

If as a result of an Employer Delay, the Contractor is prevented from completing the
works by the Contractor 's planned completion date (being a date earlier than the
contract completion date), the Contractor should in principle be entitled to be paid the
costs directly caused by the Employer Delay, notwithstanding that there is no delay to
the contract completion date (and therefore no entitlement to an EOT). However, this
outcome will ensue only if at the time they enter into the contract, the Employer is
aware of the Contractor 's intention to complete the works prior to the contract
completion date, and that intention is realistic and achievable.

14. Concurrent delay - effect on entitlement to compensation for

prolongation
Where Employer Delay to Completion and Contractor Delay to Completion are
concunent and, as a result of that delay the Contractor incurs additional costs, then the
Contrnctor should only recover compensation if it is able to separate the additional
costs caused by the Employer Delay from those caused by the Contractor Delay. If it
would have incuned the additional costs in any event as a result of Contrnctor Delay,
the Contractor will not be entitled to recover those additional costs.

15. Mitigation of delay and mitigation of loss

The Contractor has a general duty to mitigate the effect on its works of Employer Risk
Events. Subject to express contract wording or agreement to the contraiy , the duty to
mitigate does not extend to requiring the Contractor to add extra resources or to work
outside its planned working hours. The Contractor's duty to mitigate its loss has two
aspects: first, the Contractor must take reasonable steps to minimise its loss; and
secondly, the Contractor must not take unreasonable steps that increase its loss.

16. Acceleration
Where the contract provides for acceleration, payment for the acceleration should be
based on the tenns of the contract. Where the contract does not provide for
acceleration but the Contractor and the Employer agree that accelerative measures
should be undeitaken, the basis of payment should be agreed before the acceleration is
commenced. Contracting paities should seek to agree on the records to be kept when
acceleration measures ai·e employed. Where the Contractor is considering
implementing acceleration measures to avoid the risk of liquidated damages as a
result of not receiving an EOT that it considers is due, and then pursuing a

SCL Delay and Disruption Protocol 2"" Edition: February 2017 7

constructive acceleration claim, the Contractor should first take steps to have the
dispute or difference about entitlement to an EOT resolved in accordance with the
contract dispute resolution provisions.

17. Global claims

The not uncommon practice of contractors making composite or global claims without
attempting to substantiate cause and effect is discouraged by the Protocol, despite an
apparent trend for the comis to take a more lenient approach when considering global
claims.

18. Disruption claims

Compensation may be recovered for disrnption only to the extent that the contract
pennits or there is an available cause of action at law. The objective of a disrnption
analysis is to demonstrate the loss of productivity and hence additional loss and
expense over and above that which would have been incmTed were it not for the
disrnption events for which the Employer is responsible.

19. Valuation of variations

Where practicable, the total likely effect of variations should be pre-agreed between
the Employer/CA and the Contractor to ru.rive at, if possible, a fixed price of a
vru.·iation, to include not only the direct costs (labour, plant and materials) but also the
time-related and disrnption costs, an agreed EOT and the necessru.y revisions to the
programme.

20. Basis of calculation of compensation for prolongation

Unless expressly provided for othe1w ise in the contract, compensation for
prolongation should not be paid for anything other than work actually done, time
actually taken up or loss and/or expense actually suffered. In other words, the
compensation for prolongation caused other than by variations is based on the actual
additional cost incuned by the Contractor. The objective is to put the Contractor in the
same financial position it would have been if the Employer Risk Event had not
occuned.

21. Relevance of tender allowances

The tender allowances have liinited relevance to the evaluation of the cost of
prolongation and disrnption caused by breach of contract or any other cause that
requires the evaluation of additional costs.

22. Period for evaluation of compensation

Once it is established that compensation for prolongation is due, the evaluation of the
sum due is made by reference to the period when the effect of the Employer Risk
Event was felt, not by reference to the extended period at the end of the contract.

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GUIDANCE PART A: DELAY, DISRUPTION AND
ACCELERATION CONCEPTS
This Part sets out an explanation of these fundamental~y different but inten-elated
concepts by way ofintroduction to the remainder of the Protocol.
1. The construction industty often associates or conflates delay and disrnption.
While they are both effects of events, the impacts on the works are different,
the events may be governed by separate provisions of the contl"act and
governing law, they may require different types of substantiation and they will
lead to different remedies. Having said that, the moneta1y consequences of
delay and dismption may overlap and, fin1her, delay can lead to dismption
and, vice versa, disrnption can lead to delay.
2. In refeITing to 'delay', the Protocol is concerned with time - work activities
taking longer than planned. In large pal1, the focus is on delay to the
completion of the works - in other words, critical delay. Hence, ' delay' is
concerned with an analysis of time. This type of analysis is necessruy to
suppo11 an EOT claim by the Contt·actor.
3. Of course, time means money. Typical monetruy claims by a Contt·actor that
are dependent upon an analysis of time (i.e. a delay analysis) ru·e as follows
(subject to the te1ms of the contt·act and depending on the specific
circumstances):
(a) relief from LDs (with the inverse claim by an Employer for LDs);
(b) compensation for time-related costs; and
(c) if the Contt·actor has taken acceleration steps in an attempt to mitigate
the delay, compensation for those steps.
4. The guidance to Core Principles 4 and 11 in Prui B of the Protocol explains
delay analyses that, depending upon the contt·act and the circumstances, might
be deployed to suppo11 the above types of delay claims.
5. In refeITing to 'dismption', the Protocol is concerned with disturbance,
hindrance or intem1ption to a Contt·actor 's n01mal working methods, resulting
in lower productivity or efficiency in the execution of prui iculru· work
activities. If the Contl"actor is prevented from following what was its
reasonable plan at the time of entering into the contt·act for cru1ying out the
works or a prui of them (i.e. it is disrnpted), the likelihood is that its resources
will accomplish a lower productivity rate than planned on the impacted work
activities such that, overall, those work activities will cost more to complete
and the Contt·actor's profitability will be lower than anticipated. Work that is
cruTied out with a lower than reasonably anticipated productivity rate (i.e.
which is disrnpted) will lead to: (a) activity delay; or (b) the need for
acceleration, such as increasing resources, work faces or working hours, to
avoid activity delay; or (c) a combination of both- and therefore, in each case,
loss and expense. Hence, ' dismption' is concerned with an analysis of the
productivity of work activities, iITespective of whether those activities are on
the critical path to completion of the works.
SCL Delay and Disruption Protocol 2"" Edition: February 2017 9
6. A dismption claim ought to be suppo1ted by some fo1m of dismption analysis,
which is explained in the guidance to Core Principle 18 in Pait B.
7. Delay and dismption are inherently intenelated. A loss of productivity (i.e.
dismption) can lead to delay and, if the impacted activities are on the critical
path, that can be critical delay. Hence, the Contractor may rely upon a
dismption analysis to suppo1t a critical delay claim in addition to its delay
analysis. It is possible for work to be dismpted and yet for the works still to be
completed by the contract completion date. In this situation, the Contractor
will not have a claim for an EOT, but it may have a claim for the cost of the
lost productivity.

8. Equally, delay can lead to dismption. If the Contractor has less time in which
to cany out work activities (absent an EOT for the critical path activities), it is
possible that acceleration measures implemented will lead to those tasks being
canied out with a lower productivity than planned and hence at greater cost.

9. The monetary consequences of delay and dismption can also overlap. For
example, again, if acceleration measures are taken to overcome critical delay
but which lead to a loss of productivity, the costs of those steps cannot be
recovered under both the delay and dismption heads of claim. Typically, both
claims will be advanced, but it must be recognised in the second claim that a
credit has to be given for any recove1y in the first claim. It is imp01tant for the
Contractor to be diligent in avoiding duplication in claimed entitlement for
delay and dismption.
10. The question of who should bear the cost of delay and dismption is often
contentious. The Protocol is not p1imarily concerned with the question of the
valuation of the direct cost (labour, plant and materials) of change to or
variation of the works. Instead it sets out guidance on the Contractor 's cost of
prolongation and dismption.

11. A Contractor may claim its costs arising out of acceleration measures to
overcome either delay or dismption. Core P1inciple 16 concerns acceleration.
Before implementing acceleration measures, it is wo1th bearing in mind that,
of themselves, these measures can lead to dismption. However, if reasonable
acceleration measures are adopted, that dismption ought to be offset by the
overall delay recove1y achieved in the absence of other intervening events.

12. The Protocol makes reference to both mitigation and acceleration. Mitigation
simply means to make less severe or lessen delay, dismption and/or the
resultant costs and/or loss. Acceleration is a subset of mitigation, and typically
refers to the situation where additional costs are incuned to seek to overcome
all or pait of delay or dismption (for example, to ensure that that the contract
completion date is achieved). Where the Employer is responsible for that delay
or dismption, the Contractor may claim its acceleration costs from the
Employer. This situation is distinct from a Contractor's general duty to
mitigate its loss when it suffers delay and dismption or incurs additional cost
due to an Employer Risk Event. That general duty to mitigate does not require
the Contractor to incur additional costs.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 JO

13. For all delay, dismption and acceleration claims, the claim document must
explain the legal basis for entitlement, whether that is under the contract (in
which case, identify and apply the relevant provisions) or at law (in which
case, identify and apply the relevant legal basis). This is because delay,
disrnption and acceleration are not causes of action in their own right. In
addition, the claim document must explain the cause of the delay, dismption
and/or acceleration and the remedies claimed.
14. As can be seen, there is a close association between the concepts of delay and
disrnption. However, their differing impacts and the remedies sought as a
result ought not to be confused. All project participants need to understand
these issues so that the likelihood and scope of disputes over delay and
disrnption can be reduced.
15. Usually it is the Contractor that advances delay and/or dismption claims
against the Employer. (The exception is an LDs claim by the Employer against
the Contrnctor, but that claim does not typically require any detailed analysis,
only the identification of whether the contract completion date has passed
without the Contractor having achieved completion.) As a simplification for
ease of explanation, the Protocol proceeds on the basis it is the Contractor that
is advancing an EOT application or claim for compensation for delay and/or
disrnption. However, it should be home in mind that it is possible for an
Employer to have delay and disrnption claims against the Contractor, for
example where there are multiple contractors on site and the Contractor is
responsible for dismption events that have hindered the progress of those other
contractors. Fmther, a sub-contractor may have a delay and/or disrnption
claim against the Contractor (or vice versa).

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GUIDANCE PART B: GUIDANCE ON CORE
PRINCIPLES
This Part sets out guidance on each of the 22 Core Principles of the Protocol (with
the Core Principles themselves designated by bold text).

1. Programme and r ecords

Contracting parties should r each a clear agreement on the type of records to be
kept and allocate the necessary resources to meet that agreement. Further, to
assist in managing progress of the works and to reduce the number of disputes
relating to delay and disruption, the Contractor should prepare and the CA
should accept a properly prepared programme showing the manner and
sequence in which the Contractor plans to car ry out the works. The programme
should be updated to record actual progress, variations, changes of logic,
methods and sequences, mitigations or accelerations measures and any EOTs
gr anted. If this is done, then the progr amme can be more easily used as a tool for
managing change and determining EOTs and periods of time for which
compensation may be due.
1.1 The following guidance is supplemented by Appendix B which describes the
typical records needed for effectively managing progress of the works and
substantiating EOT and compensation claims for delay and/or disrnption.
1.2 It is not intended that this guidance should be inco1porated into a contract, but
contracting pa11ies may wish to consider this guidance when drafting their
contracts. Those who assess delay and disrnption claims often find that there is
unce11ainty and a lack of records regarding what was delayed and/or disrnpted
and what and how paits of the works were affected by delay or disrnption
events. Good record keeping and good use of the programmes removes a
significant amount of this unce11ainty, will improve the ability to manage
progress and allows for the early assessment of claims, thereby reducing the
likelihood of disputes. This is because adequate and complete records should
allow robust progress management and, where necessruy, delay and/or
disrnption assessments. This also often reduces the cost of canying out such
assessments. As a result, the imp011ance of good quality records on all projects
cannot be underestimated.
1.3 The Protocol recommends that the pruiies reach a cleru· and documented
agreement prior to the time they enter into the contract (or at least at the outset
of the works) regarding record keeping and programme use. In doing so, the
pruiies need to take an approach that is propoliionate and appropriate to the
specific circumstances of the works. This will vruy from project to project.

Introduction to records
1.4 There is often a lack of good record keeping and a lack of unifon nity of
approach to record keeping as relevant to management of progress of the
works and delay and disrnption claims.

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1.5 ill seeking to reach a clear and documented agreement on record keeping, the
parties should consider:
(a) the types ofrecords to be produced and the inf01mation to be contained
therein;
(b) who is responsible for both producing and checking those records;
(c) the frequency with which those records ru·e to be updated or produced;

(d) the distribution list for those records;

(e) the f01mat of those records (for example, to ensure compatibility with
any project-wide database); and
(f) the ownership (including any relevant intellectual prope1iy rights) and
storage of, and access to, those records.
1.6 Good record keeping requires an investment of time and cost, and the
commitment of staff resources by all project pruiicipants. It is therefore
recommended that, prior to preparing the tender documents, the Employer
considers its requirements of the Contractor in relation to record keeping and
includes these within the tender documents. This will allow tenderers to
accurately price their obligations regru·ding record keeping. The imposition by
the Employer or the CA of additional record keeping requirements after the
contract has been entered could constitute a variation under the contract (with
compensation consequences) or, in rru·e cases, be prohibited in the absence of
the Contractor's agreement.
1.7 Records relevant to progress and delay and dismption events must be
generated contemporaneously as the works progress, and not afte1wru·ds. The
project records must document all work under way (on and off-site) and in the
case of work at the site, the circumstances in which that work is being canied
out. That data should be recorded in a manner that allows it to be matched to
the activities in the Accepted Programme/Updated Programme. Project records
therefore cover design, approvals, procurement or manufacturing, installation,
constmction, coordination, commissioning and taking over (as applicable).
1.8 Once the pruiies have agreed and documented the record keeping regime,
adequate resources must be allocated by all relevant pruiies to ensure the
records ru·e produced, checked and stored in line with that agreement. As prut
of the checking process, where reasonably practicable and propo1iionate in the
circumstances, inconsistencies between different records should be identified
and notations made as to the reasons for the differences.
1.9 The Employer should consider whether it is proportionate and appropriate to
produce and maintain its own independent set of relevant records regarding the
works. Such records will assist the Employer both in the event the Contractor
fails to produce and maintain adequate records and in suppo1iing any claims
the Employer may have against the Contractor.

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1.10 If the circumstances of the works change during the project, the pai1ies and the
CA should revisit the agreed record keeping regime and identify if changes
(such as supplementaiy records) ai·e required.
1.11 As explained above, Appendix B describes the typical records needed for
managing progress of the works and substantiating EOT and compensation
claims for delay and/or dismption. These are divided into the following six
categories: (a) programme; (b) progress; (c) resource; (d) costs; (e)
coITespondence ai1d administration; ai1d (f) contract and tender documents.
The precise nature and level of detail of the records in each catego1y depends
upon the specifics of the works. Ce1iain types of records fall within multiple
categories.
1.12 Records falling within categories (b)-(d) should set out facts only and offer no
opinions. Where reasonably practicable, they should be signed by authorised
representatives of both the CA and the Contractor.
1.13 Records should be maintained for an adequate period of time after completion
of the works, expiration of the defects liability period, and resolution of any
outstanding disputes. Records should be kept and stored for at least as long as
the contract requires or for any relevant statutory limitation period.

Format and storage of records

1.14 Records should be produced electronically in a manner that allows them to be
easily accessed, distributed, searched, stored and retrieved. At a minimum
(with the exception of emails), records should be kept in PDF seai·chable
f01mat and stored in an electronic document management system database.
Emails, prograinmes and spreadsheets containing foimulae should be kept in
their native electronic foimat (which, in the case of programmes, is explained
fm1her below).
1.15 To the extent reasonably practicable, with the possible exception of celiain
costs records (given competition law and business confidentiality
considerations), the document management system database should be
collaborative so that all records ai·e accessible by the Contractor and the CA.

1.16 Recognising that technology is quickly changing, the Protocol recommends

that only standard document management systems, capable of being easily
seai·ched and exp01ied and exchanged, be used.
1.17 The Protocol recognises the growing use of building info1mation modelling
(or ' BIM') in design development, project management, claims assessment,
dispute resolution and operations and maintenance. The effective use of BIM
requires specific agreement between the pa1iies regai·ding its content, use and
ownership.
Categories ofrecords
Prograinme records
1.18 Programme records include the Contractor 's proposed baseline programme
(which upon acceptance becomes the Accepted Programme), Updated

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 Programmes, revised programmes to take account of re-sequencing or other
acceleration measures or mitigation measures, and detailed versions of these
programmes (such as four week look-ahead programmes), as well as those
records which assist in understanding these programmes, including
programme nan atives. These records allow the paities to effectively manage
progress and allow the CA, adjudicator, judge or ai-bitrator to understai1d the
Contractor's plan for cai1ying out the works in assessing any delay or
disrnption claims. Specific considerations in relation to the programmes
themselves ai·e set out in pai·agraphs 1.39-1.64 below.
1.19 Updated Programmes are a reposito1y of data regai·ding progress achieved
prior to their data date. This progress data includes the dates for the stait and
finish of activities (new, modified and original) and progress achieved at
updating intervals. Hence, Updated Programmes are also a helpful progress
record.
Progress records
1.20 Progress records contain as-built data, both on and off-site. These records
should cover all the activities that affect completion of the works whether or
not they comprise distinct activities in the Accepted Programme/Updated
Programme. Progress records are required to establish the progress of the
works at the time of a delay or disrnption event, the impact of that event, and
its effect on the works.
1.21 Progress records should be reconciled with and complementaiy to the
Accepted Programme/Updated Programme and costs records. Progress is
ideally recorded and coded to the Accepted Programme/Updated Programme
activities and also to the cost accounts for the project.

Resource records
1.22 Resource records capture the resources utilised to deliver the works, including
management, labour, plant, equipment, materials, and sub-contractors, and
their output and productivity rates.
1.23 Without records of planned and utilised resources it will be more difficult for
the Contractor to prove entitlement to time and costs incmTed ai·ising from
additions or changes to the works and other delay or disrnption events.
1.24 Resource records should be detailed and comprehensive and where possible
should be allocated to the Accepted/Updated Programme activities or at a
minimum to an ai·ea or section of the works.

Costs records
1.25 Costs records should include a sufficient level of detail such that costs can be
linked, even at a high level, to delay or disrnption events.
1.26 Costs ai·e classified into the following broad headings:
(a) direct costs (labour, task-specific equipment, materials, and sub-
contracted work); and

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 (b) indirect costs (on-site overheads and head office overheads), whether
time-related or othe1wise.
1.27 Section 2 of Pait C regarding head office overheads explains the difference
between ' dedicated' and 'unabsorbed' overheads. 'Dedicated' overhead costs
may be capable of being substantiated by specific records. These would
include staff time sheet bookings, together with any staff travel expenses,
directly or indirectly relating to the Employer Risk Event. In the case of
'unabsorbed' costs, which ai·e incuned regardless of the Contractor 's volume
of work, the retained records should include those relating to rent, rates,
heating, lighting, directors' salaries, wages of suppo1t staff, pension fund
contributions and auditors' fees.

1.28 If the Contractor intends to rely on the application of a f01mula for the
assessment of lost profits and unabsorbed head office overheads, it will first
need to produce evidence that it was unable to undertake other work that was
available to it because of the Employer Delay. These records may include the
Contractor's business plans prior to the Employer Delay, the Contractor's
tendering histo1y and records of acceptance or rejection of tender opportunities
depending upon resource availability. Also relevant will be minutes of any
meetings to review foture tendering opp01tunities and staff availability. The
Contractor will also need to produce the records that suppoit the inputs into
the fo1mula used, in pruticular the Contractor's company accounts for the
periods immediately preceding and succeeding the Employer Delay as well as
for the period when the Employer Delay occmTed.
1.29 There may be competition law and business confidentiality considerations to
take into account before project pruticipants share their costs info1mation and
pruties seek to agree on the costs consequences of delay or disrnption events.
In some cases (such as a claim for loss of profit), a claiming paity has to
accept some loss of confidentiality as a necessru·y condition of establishing its
claim. The pruties might therefore consider agreeing relevant rates in the
contract, rather than requiring proof of actual costs or loss for ce1tain
eventualities (an example would be an agreement regarding staff rates to be
charged in the event of an Employer Delay to Completion). This is likely to be
beneficial to both the claiming pruty and the paying pruty; the claiming pruty
does not need to produce proof of actual cost or loss, and the paying paity
benefits from a pre-agreed rate.
1.30 Cost records ru·e essential to establish the costs consequences of delay or
disrnption events.

Conespondence and administration records

1.31 This catego1y covers all written communications between the Employer, the
Contractor, the CA, and third pa1ties relevant to the progress of the works,
including any delay or disrnption. This includes emails, letters, notices,
instrnctions, submittals, requests for info1mation and responses, meeting
minutes and claims.

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1.32 Written communications should be uniquely numbered, contain a descriptive
subject line, be dated and be issued to the agreed distribution list. Any
impottant oral communication ought to be confumed in writing.
1.33 Emails are frequently used for communications between pa.dies. fu paiticular,
email is a convenient way to transmit info1mation in native fo1mat
(paiticulai-Iy spreadsheets, prograinmes and drawings). The management of
emails is challenging, and should be addressed by the pait ies from the outset
of the works. A protocol should be developed and implemented for the use of
email and its ai·chiving on each project. Emails regai·ding the works that ai·e
internal to a paity should also be ai·chived.

1.34 The Protocol recognises that even with the best system for managing and
archiving emails, some emails may be lost, and the imp01tance of others may
be overlooked. To reduce the adverse effect of these issues, the Protocol
recommends that material communications (of whatever nature) should be
prepai·ed in the fo1m of a letter, uniquely numbered and cai·efully retained.
Alternatively, key emails should be kept in a centrnlised folder and given a
unique conespondence number.
1.35 Pa1ties should be aware of any contractual procedural requirements for
advancing and dete1mining delay or dismption claims, and should comply
with these to avoid prejudice. This relates to the timing of the submission of
any notices or paiticulai·s of claim or the dete1mination of a claim, the fo1mat
of those documents, and to whom those documents ought to be transmitted
(see Core Principle 3 in Pait B).
Contract and tender documents
1.36 Constmction contracts typically consist of numerous documents and it is
therefore impo1t ant to ensure that there is no unce1iainty about what
documents fo1m pait of the contract and that a complete copy is maintained by
both paities (including any amendments).
1.37 Tender documents include all conespondence between the paities regai·ding
the contract negotiations. These also include:
(a) on the pa1t of the Employer: tender submissions by all tenderers, the
tender evaluations, and the Employer's calculations of any liquidated
damages rates; and
(b) on the pait of the Contractor: records demonstrating the build-up to its
tender price (and any amendments to the price) and the assumptions on
which the tender price is based.
1.38 Tender documents may be relevant to demonstrating the reasonableness of
claimed costs in periods affected by delay or dismption events or the
enforceability of the liquidated damages provisions. However, unless
incmporated into the contract, tender documents ai·e not relevant to the
inte1pretation of the contract.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 17

Programme
1.39 The fo1m and software for the programme should be specified in the tender
documents and the contract. Collllllercially available software (rather than
specialist in-house software) should be specified and, in most cases, the
programme should be based on the Critical Path Method (or CPM).
1.40 As early as possible during the works, the Contractor should submit and the
CA should accept a programme showing the manner and sequence in which
the Contractor plans to cany out the works, which becomes the Accepted
Programme. This should address the key stages of the works, namely design,
approvals, procurement or manufacturing, installation, constmction,
commissioning and taking over (as applicable).

1.41 Most standard f01ms of contract contain inadequate requirements for

generating an Accepted Programme and/or Updated Programmes. The
Protocol recollllllends that the paiiies reach a clear and documented agreement
on the requirements of the Contractor's proposed programme in order for it to
be accepted by the CA (and then f01m the Accepted Progralllllle) and the
manner in which it is to be updated (being the Updated Programmes). The
agreement should cover the following matters and be documented in the
contract.
Fo1m of the Contractor's proposed programme
1.42 The Contractor's proposed programme should generally be prepared as a
critical path network using collllllercially available CPM programming
software. The complexity of the programme should be propo1iionate to the
project. Both the Contractor and the CA should have a copy of the
programming software.
1.43 For the Contractor's proposed progralllllle to be suitable for use as a tool for
monitoring progress and assessing delay and dismption claims, it ought to be
properly prepared so that, when a delay or dismption event occurs, it can
accurately predict the effects. The Contractor's proposed programme should
be provided in its native electronic f01m to the CA (not just as a PDF). Using
the software, the Contractor should identify on the proposed programme:
(a) the critical path(s);
(b) all relevant activities and key interfaces; and

(c) the inf01mation the Contractor reasonably requires from the Employer
or CA, when that info1mation is required, and all Employer or CA
activities and constraints (such as approvals/reviews and Employer-
supplied se1vices or materials). This should be done by logically
linking to the activities of the Contractor (and not by means of fixed
dates) .

1.44 The progralllllle subinitted by the Contractor in securing the contract should
f01m the basis of the Contractor's proposed programme. Detailed suggestions
as to how the Contractor's proposed programme should be prepared are
provided below.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 18

Detail within the proposed programme
1.45 The Contractor's proposed programme (and any revisions) should be prepared
with sufficient detail using logic links (i.e. each activity is linked to both a
predecessor and successor activity or milestone) to provide proper f01ward
visibility so that the effect of delay and dismption events can be predicted with
as much accuracy as possible.
1.46 Depending on the complexity of the works, it may be appropriate to specify in
the contract the maximmn duration of an activity in the Contractor's proposed
programme. As a guide, no activity or lag (other than a smnmaiy activity)
should exceed 28 days in duration. Wherever possible, an activity should not
encompass more than one trade or operation. However, when 'rolling wave'
prograinming is used (i.e. where the activities ai·e detailed for the next 6 to 18
months of the project and the remainder of the activities ai·e shown at a
smnmai1sed level), an activity limitation of 28 days for the later smnmai·ised
activities is not necessaiy. fustead, common sense should be applied and
reasonable smnmaiy bar activities incmporated in the programme that ai·e then
detailed as the time to execute them draws nearer.
1.47 Activities should be linked together by the appropriate logic links su ch as
finish-to-stait, stait -to-stait and finish-to-finish. Those logic links may
demonstrate: (a) a sequence constrained c11tical path based upon necessaiy
constmction sequencing (e.g. , the roof cannot be erected until after the
foundations and walls ai·e constmcted); (b) a resource constrained critical path
taking account of resource constraints (e.g. in a piping project where there ai·e
many work faces that could be progressed in pai·allel); or (c) preferential
sequencing where no constraint is influential. Lags may be introduced for non-
work periods (such as curing of concrete) but better visibility and
understanding is provided if such matters are shown as activities in themselves
(See Appendix A for definitions of logic links and lags). Activities to be
executed by the use of ove1t ime and/or additional shifts should be identified
and explained in the programme nairntive. All necessai·y logic links should be
inse1ted. Excessive leads and lags should be avoided. Where utilised, the
Contractor should provide an explanation in the programme nairntive as to
why pa1ticular leads and lags have been applied. Manually applied constraints
such as 'must stait' or 'must finish ' fixed dates, 'zero float' and other
prograinming techniques that can have the effect of inhibiting a programme
from rea.cting dynainically to change should be avoided (or, if unavoidable,
properly explained in the programme nairntive).
1.48 Key resources such as labour, staff (including that which relates to design
where relevant), tradesmen, major plant items, dedicated resources, major
materials and work rates should be indicated for major activities (or othe1wise
explained in the programme nairntive).
1.49 When works ai·e production (output) driven, supplemental tools such as line of
balance schedules, time location diagrams, and S-cmves should be developed
and utilised to understand progress of the activities repoited in the Updated
Programmes.

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Interaction with method statements
1.50 For it to be fully understood, the Contractor's proposed progralllllle should be
read in conjunction with the Contractor's method statements describing in
detail how the Contractor intends to cany out the works, the key interfaces,
and the resources it intends to use (which may be those of its sub-contractors).
The Protocol recommends that the contract require the Contractor to provide
such method statements, and that the Contractor' s proposed programme and
the method statements are folly cross-referenced.
1.51 A progralllllle nan ative should also be prepared by the Contractor to describe
how the proposed progralllllle reflects the method statements.
Time within which to submit a proposed programme for acceptance

1.52 It is recollllllended that the parties agree in the contract a fixed time period for
the Contractor's submission of the proposed programme for acceptance. This
should be a reasonable time after the contract award or the commencement
date, whichever is the earlier. For projects with a long duration and depending
upon the circumstances, it may be appropriate for the Contractor to submit,
sh01tly after the contract has been awarded, an initial proposed programme
showing only the first three months of the works in detail, to be followed up
by a proposed programme for the entirety of the works. See also paragraph
1.46 above regarding rolling wave programming.

1.53 The proposed programme should not encompass any changes or delays that
have occuned since the contract commencement date. Any such post-
commencement changes or delays should be dealt with in accordance with the
EOT procedure in the guidance to Core P1inciple 5 in Pait B after the
proposed programme has been accepted.
Mechanism for obtaining the CA's acceptance of the proposed programme
1.54 The Contractor (not the CA) controls the method and sequence of the works
(and bases its tender price on its ability to do so). Therefore, provided the
Contractor complies with the contract and all applicable laws, the Contractor
may perfo1m the works in the manner it thinks appropriate. The contract
provisions for accepting the Contractor's proposed programme should reflect
that fact, subject to any Employer constraints identified in the contract.
1.55 Also, to avoid unce1tainty, the contract should contain wording to the effect
that if the CA does not respond to the Contractor regarding the proposed
programme within a specified time, it is deemed accepted and becomes the
'Accepted Programme '. The paities should consider at the outset whether to
incmporate a provision into the contract which incentivises the Contractor to
submit a proposed programme that complies with the contractual requirements
(such as a po1tion of the contract sum being withheld pending the submission
of a compliant programme). Othe1wise, if the Contractor fails to meet its
contractual obligations with respect to programming, the CA may consider
invoking the contract provisions for dealing with general defaults by the
Contractor. In this situation, the CA should also (to the extent possible)

SCL Delay and Disruption Protocol 2"" Edition: February 2017 20

 maintain and update a programme with actual progress based on its own
knowledge.
1.56 The Protocol regards the agreement of the Accepted Programme as being ve1y
impo1t ant both for managing progress of the works and assessing any EOT
applications. Disagreements over what constitutes the Accepted Programme
should be resolved straight away and not be allowed to continue through the
works. An unaccepted Contractor 's proposed programme or update can
become the source for disputes. Accordingly, the CA should specify what
contractual requirements are not met before detennining that a proposed
programme or an update is inadequate.
1.57 Acceptance by the CA constitutes an acknowledgement that the Accepted
Programme represents a reasonable, realistic and achievable depiction of the
sequence and timing for canying out the works. Acceptance does not tum the
Contractor's proposed programme into a contract document, or mandate that
the works should be constrncted exactly as set out in the Accepted
Programme. Nor does it amount to a wrurnnty by the CA to the Contractor or
the Employer that the Accepted Programme can be achieved.

Requirements for updating and saving the Accepted Programme/Updated Programme

1.58 The contract should require that the Accepted Programme be updated with
actual progress using the agreed CPM programming software at intervals of no
longer than one month (or at agreed more frequent intervals on complex
projects). The Contractor should enter the actual progress on the Accepted
Programme as it proceeds with the works, to create the Updated Programme,
the latter of which is then updated with fmther progress in creating the
subsequent Updated Programme at the agreed inte1val, and so f01th. Actual
progress should be recorded by means of actual strut and actual finish dates for
activities, together with percentage completion of cmTently incomplete
activities and the extent of remaining activity durations. In addition, the
Contractor should include in each Updated Programme any new or modified
activities, logic and sequences. Any periods when an activity is suspended
should be noted in the Updated Programmes. The pruties should consider at
the outset of the project establishing rnles for measuring progress to ensure
consistency of understanding.
1.59 The Updated Programmes should be ru·chived as sepru·ate electronic files and
the saved versions should be copied electronically to the CA (again, in native
f01mat, not as a PDF), along with a repoli describing revisions made to
activity durations or logic as compru·ed to the Accepted Programme (or a
previous Updated Programme) and the reasons for the revisions. The pmpose
of saving Updated Programmes is to provide a contemporaneous record of
revisions to the Contractor's intended work sequences and activities. No
version of any programme should be ove1w ritten - all versions need to be
saved sepru·ately.

1.60 The Updated Programmes demonstrate actual progress against planned

progress, and (as explained below) ru·e used for dete1mining any EOT claims.
If the CA disagrees with the progress the Contractor considers it has achieved,

SCL Delay and Disruption Protocol 2"" Edition: February 2017 21

 it should notify the Contractor, and the CA and Contractor should then attempt
to reach agreement. If they do not agree, the CA's view should prevail (unless
and until it is reviewed and replaced under the contract dispute resolution
procedures), and the CA's view on progress should be reflected in the Updated
Programmes. The Contractor's position on the areas of disagreement should be
recorded and submitted with the Updated Programmes.
1.61 From time to time, the Contractor may wish to revise its plan for can-ying out
the remainder of the works. If rolling wave programming is utilised,
subsequently detailing later summa1y activities is not a revision to the
Contractor's plan.

1.62 Specifically, the Contractor should attempt to reasonably revise its planned
logic, sequence, and activity durations for the remainder of the works
whenever there is or may be Contractor Delay to Completion or variations so
as to ensure the contract completion date will be achieved. The contract should
contain provisions allowing the CA to require the Contractor to produce a
proposed revised programme in such circumstances. These revisions should be
made to the most recent Updated Programme (or the Accepted Programme if
no Updated Programme has yet been produced).
1.63 The Contractor should notify the CA of any proposed revisions and provide an
electronic copy of the proposed revised programme, together with any
consequential revision to the Contractor's method statements and a
programme na1rntive that reflects the proposed revised programme. The CA
should review and if appropriate accept the proposed revised programme.
Once a revised programme is accepted by the CA it replaces the foimer
Accepted Programme as the tool for monitoring actual progress.
1.64 Acceptance by the CA of such a proposed revised programme does not
constitute acceptance or waiver of the Contractor Delay, and requiring the
Contractor to propose measures to recover delay is not an instrnction or a
deemed instruction to accelerate the works at the Employer's cost. Acceptance
merely acknowledges that the revised programme reasonably reflects the
cmTent situation and the Contractor 's cmTent intention to cany out the
remainder of the works.

2. Purpose ofEOT
The benefit to the Contractor of an EOT is to relieve the Contractor of liability
for damages for delay (usually LDs) for any period prior to the extended
contract completion date and allows for reprogramming of the works to
completion. The benefit of an EOT for the Employer is that it establishes a new
contract completion date, prevents time for completion of the works becoming
'at large' and allows for coordination I planning of its own activities.
2.1 It is often inconectly thought that an entitlement to an EOT automatically
canies with it an entitlement to compensation for prolongation costs during the
period of the EOT. The main effect of an EOT is that the Conti·actor is
relieved of its liability for liquidated damages during the period of the
extension and is able to reprogramme its works to completion. Its entitlement

SCL Delay and Disruption Protocol 2"" Edition: February 2017 22

 to compensation is usually to be found in other provisions of the contract or at
law. The benefit of an EOT for the Employer is that it establishes a new
contract completion date, prevents time for completion of the works becoming
'at large' and allows for coordination I planning of its own activities, such as
training operational staff.
2.2 If the good practice promoted in the guidance to Core Principle 1 with regard
to the keeping of records and preparation, acceptance and updating of
programmes is followed, then the scope for factual disagreement about a
claimed entitlement to an EOT will be reduced.

3. Contractual procedural requirements

The parties and the CA should comply with the contractual procedural
requirements relating to notices, particulars, substantiation and assessment in
relation to delay events.
3 .1 Most if not all the standard fonns of contrnct contain obligations on the prut of
the Contrnctor to give notice to the CA as soon as an Employer Risk Event
occurs that the Contractor considers entitles it to an EOT. Some require notice
of the occunence of an Employer Risk Event iITespective of whether it is
likely to affect the contract completion date (i.e. the latter of which the
Protocol refers to as Employer Delay to Completion), and some requiI·e notice
of all events that adversely affect progress iITespective of liability or
consequence. In some standru·d fonns these notices are expressed to be
conditions precedent (i.e. pre-conditions) to entitlement.
3.2 The Contractor should comply with the contractual procedural requiI·ements
relating to notices, pa1ticulru·s and substantiation in relation to delay events.
However, whatever the contract says, the Contractor should give notice to the
CA of any Employer Delays as soon as possible. The CA should also notify
the Contractor as eru·ly as possible of any Employer Delays of which it is
awru·e.
3.3 This allows appropriate mitigation measures to be considered by the project
pruticipants so as to limit the impact of the delay event.

4. Do not 'wait and see' regarding impact of delay events

(contemporaneous analysis)
The parties should attempt so far as possible to deal with the time impact of
Employer Risk Events as the work proceeds (both in terms of EOT and
compensation). Applications for an EOT should be made and dealt with as close
in time as possible to the delay event that gives rise to the application. A ' wait
and see' approach to assessing EOT is discouraged. Where the Contractor has
complied with its contractual obligations regarding delay events and EOT
applications, the Contractor should not be prejudiced in any dispute with the
Employer as a result of the CA failing to assess EOT applications. EOT
entitlement should be assessed by the CA within a reasonable time after
submission of an EOT application by the Contractor. The Contractor potentially
will be entitled to an EOT only for those events or causes of delay in respect of

SCL Delay and Disruption Protocol 2"" Edition: February 2017 23

which the Employer has assumed risk and responsibility (called in the Protocol
Employer Risk Events) that impact the critical path.
4.1 Each EOT application should be assessed as soon as possible, and in any event
not later than one month after the application has been received by the CA. A
'wait and see ' approach to assessing EOT is discouraged. This allows
appropriate mitigation measures to be considered by the project pa1t icipants so
as to limit the impact of the delay event. It also provides the Employer and the
Contractor with clarity around the contract completion date so that they can
understand their risks and obligations and act accordingly.

Contemporaneous analysis of delay

4.2 This section sets out a recommended procedure to be followed in order to deal
efficiently and accurately with EOT applications during the course of the
project. It assumes that the patt ies to the contract have followed the
recommended good practice on programmes and records set out in the
guidance to Core Principle 1 in Pait B. It is not intended that this guidance
should be inco1porated into a contract.
4.3 The Contractor should generally submit a sub-network (sometimes called a
'fragnet') showing the actual or anticipated effect of the Employer Risk Event
and its linkage into the Updated Programme. This sub-network is inseited into
that Updated Programme which was submitted by the Contractor as close as
possible to the date of the Employer Risk Event. Fmther guidance on the foim
of the sub-network is given in paragraph 4.10 below. It should also be
accompanied by such documents and records as are necessaiy to demonstrate
the entitlement in principle to an EOT. Simply stating that Employer Risk
Events have occmTed and claiming the whole of any delay appai·ent at the time
of the events is not a proper demonstration of entitlement.
4.4 Before doing anything else, the CA should consider whether or not the
claimed event or cause of delay is in fact one in respect of which the Employer
has assumed risk and responsibility (i.e. that it is an Employer Risk Event).
The Contractor will potentially be entitled to an EOT only for those events or
causes listed in the contract as being at the Employer's risk as to time that
impact the critical path. These events va1y between the different standard
f01ms of contract, and care is needed when reading them. If the CA concludes
that the event or cause of delay is not an Employer Risk Event, the CA should
so notify the Contractor. Without prejudice to that, the CA may wish to
comment on other aspects of the Contractor 's submission. When granting or
refusing an EOT, the CA should provide sufficient info1mation to allow the
Contractor to understand the reasons for the CA's decision.
4.5 In the absence of a submission that complies with this section, the CA (unless
the contract othe1w ise provides) should make its own dete1mination of the
EOT (if any) that is due, based on su ch info1mation as is available to it. Given
that it is difficult if not impossible to withdraw an EOT once granted, it is
reasonably to be expected that, where the CA has not been presented with the
info1mation on which to base its decision, the CA will awai·d only the
minimum EOT that can be justified at the time.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 24

4.6 If the Contractor does not agree with the CA's decision, it should so info1m
the CA immediately. Disagreements on EOT matters should not be left to be
resolved at the end of the project. If no agreement can be reached quickly,
steps should be taken by either party to have the dispute or difference resolved
in accordance with the contract dispute resolution provisions.
4.7 The Protocol recommends that the most recent Updated Programme (or, if
there is none, the Accepted Programme) should be the primary tool used to
guide the CA in assessing an EOT application. The EOT should be granted to
the extent that the Employer Risk Event is predicted to prevent the works
being completed by the then prevailing contract completion date.
4.8 A guide to the amount of the EOT is obtained by using the Updated
Programme. The steps to be taken are as follows:
(a) the Programme should be brought fully up to date (as to progress and
the effect of all delays that have occmTed up to that date, whether
Employer Delays or Contractor Delays) to the point immediately
before the occmTence of the Employer Risk Event;
(b) the Programme should then be modified to reflect the Contractor's
reasonable, realistic and achievable plans to recover any delays that
have occmTed, including any changes in the logic of the Updated
Programme proposed for that purpose (subject to CA review and
acceptance as provided in paragraph 1.63 of Prut B);
(c) the sub-network representing the Employer Risk Event should then be
entered into the programme; and
(d) the impact on the contract completion dates should be noted.
4.9 Prior to dete1mining the effect of an Employer Risk Event on the Updated
Programme, any patently unreasonable or unrealistic logic, constraints or
durations should be coITected by agreement, failing which the CA's view
should prevail unless and until ove1tumed under the contract dispute
resolution provisions.
4 .10 The sub-network refeITed to above should be prepru·ed by the Contractor in the
same manner and using the same software as the Accepted Programme. It
should comprise the activities and durations resulting from the Employer Risk
Event. For example, the sub-network for a vru·iation would comprise the
instrnction for the variation, the activities required to cruTy out that variation
and its linkage to the activities in the Updated Programme. For a breach of
contract, the sub-network would represent the consequences of that breach.
The Contractor should submit the sub-network to the CA for agreement. The
CA should consider the sub-network and, if agreed, the sub-network should be
inse1ted into the Contractor's Updated Programme. Any disagreement about
the sub-network should be resolved quickly and (like all delay issues) not left
until after completion.
4.11 The assessment of the impact of delays (whether Contractor Delays or
Employer Delays) should be at a level appropriate to the level of detail

SCL Delay and Disruption Protocol 2"" Edition: February 2017 25

 included in the Updated Programme and talcing into account the size and
complexity of the works and the delays being analysed.
4.12 The methodology described in this section is known as 'time impact
analysis' . This methodology requires a logic linked baseline programme
(which ordinarily would be the Accepted Programme), updated programmes
(which ordinarily would be the Updated Programmes) or progress info1mation
with which to update the baseline programme and the selection of delay events
to be modelled. If the paiiies have not followed the guidance to Core Principle
1 in Part B, such that there is no Accepted Programme and/or Updated
Programmes, this is likely to lead to more disputes regai·ding the
contemporaneous assessment ofEOT applications.
4.13 As noted in the guidance to Core Principle 10 in Paii B, where Employer Risk
Events and Contractor Risk Events occur sequentially but have concmTent
effects, the delay analysis should dete1mine whether there is concmTent delay
and, if so, that an EOT is due for the period of that concmTency. In this
situation any Contractor Delay should not reduce the amount of EOT due to
the Contractor as a result of the Employer Delay. Analyses should be caITied
out for each event sepai·ately and strictly in the sequence in which they arose.

4.14 Although the Updated Programme should be the primaiy tool for guiding the
CA in its dete1mination of an EOT, it should be used in conjunction with the
contemporai·y evidence, to ensure that any resulting EOT is both reasonable
and consistent with the factual circumstances. It will also be necessa1y for the
paiiies to apply common sense and experience to the process to ensure that all
relevant factors are taken into account, and that any anomalous results
generated by the delay analysis ai·e properly managed. Overai·ching these
considerations, any resulting EOT must be consistent with the contractual
requirements regai·ding entitlement.

4.15 Where the Contractor has complied with its contractual obligations regarding
delay events and EOT applications, the Contractor should not be prejudiced in
any dispute with the Employer as a result of the CA failing to assess EOT
applications within a reasonable time after submission .

5. Procedure for granting EOT

Subject to the contract requirements, the EOT should be granted to the extent
that the Employer Risk Event is reasonably predicted to prevent the works being
completed by the then prevailing contract completion date. In general, this will
be where the Employer Risk Event impacts the critical path of the works and
thus extends the contract completion date. This assessment should be based upon
an appropriate delay analysis, the conclusions derived from which must be sound
from a common sense perspective. The goal of the EOT procedure is the
ascertainment of the appropriate contractual entitlement to an EOT; the analysis
should not start from a position of considering whether the Contractor needs an
EOT in order not to be liable for liquidated damages.
5.1 If the CA does not make a dete1mination of the EOT entitlement resulting
from an Employer Risk Event when an EOT is in fact due, there is a danger

SCL Delay and Disruption Protocol 2"" Edition: February 2017 26

 that the EOT mechanism may fail, leaving the Contractor only obliged to
finish the works within a reasonable time, having regard to the patties' rights
and obligations under the contract (with the uncettainty which that creates).
For this reason, construction contr·acts should contain provisions entitling the
CA on its own initiative to determine an EOT, even if the Contr·actor has not
applied for one, or has applied with insufficient inf01m ation.
5.2 A properly drafted EOT clause will contain general wording to allow an EOT
to be granted in respect of acts (or omissions) of prevention or breach of
contract by the Employer. Such wording is needed because the English comts
have held that wording such as ' any other special circumstances ' does not
cover breaches by the Employer. Such an EOT clause should also explain the
consequences of the Contractor 's failure to comply with any procedural
requirements in applying for an EOT.
5.3 Generally, an EOT should be granted to the extent that the Employer Risk
Event is predicted to prevent the works being completed by the then prevailing
contr·act completion date. This process requires consideration of whether the
Employer Risk Event impacts the critical path and thus extends the contr·act
completion date (see guidance to Core Principle 8 in Patt B).

6. Effect of delay
For an EOT to be granted, it is not necessary for the Employer Risk Event
already to have begun to affect the Contractor's progress with the works, or for
the effect of the Employer Risk Event to have ended.
6.1 As explained in the guidance to Core Principle 4 in Patt B, the practice of
some CAs of waiting to see what the full effect an Employer Risk Event has
on the works before dealing with the Contr·actor 's application for EOT is
discouraged. If the Contr·actor is entitled to an EOT it should receive it, and
the CA should not wait to see if the Contr·actor actually needs the EOT, in
order not to be liable for liquidated damages.

7. Incremental review of EOT

Where the full effect of an Employer Risk Event cannot be predicted with
certainty at the time of initial assessment by the CA, the CA should grant an
EOT for the then predictable effect. The EOT should be considered by the CA at
intervals as the actual impact of the Employer Risk Event unfolds and the EOT
increased (but not decreased, unless there are express contract terms permitting
this) if appropriate.
7.1 CAs should bear in mind that it is petmissible to deal with EOT incrementally.
The Protocol's recommended procedure for assessing EOT during the course
of the project is set out in the guidance to Core Principle 4 in Patt B.
7.2 The CA should not, however, use an incremental approach to 'wait and see '
the outcome of an Employer Risk Event as that would contr·avene Core
Principle 4. Rather, the CA should grant an EOT for the then predictable effect
of the Employer Risk Event. That then allows the Contr·actor to reprogramme
the works to completion.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 27

8. Float as it relates to time
Float values in a programme are an indication of the relative criticality of
activities and, generally, when float is exhausted, the completion date will be
impacted. Unless there is express provision to the contrary in the contract, where
there is remaining total float in the programme at the time of an Employer Risk
Event, an EOT should only be granted to the extent that the Employer Delay is
predicted to reduce to below zero the total float on the critical path affected by
the Employer Delay to Completion (i.e. if the Employer Delay is predicted to
extend the critical path to completion).
8.1 Float is the amount of time by which an activity or group of activities may be
shifted in time without causing Delay to Completion. Activities with the least
float are generally considered to be on the critical path of the works. Appendix
A explains the different types of float. The date in question may be a sectional
completion date, the overall completion of the works or an interim milestone.
The 'ownership' of float causes paiticular arguments in disputes over
entitlement to an EOT. A Contractor may argue that it ' owns ' the float,
because, in planning how it proposes to cai1y out the works, it has allowed
additional or float time to give itself some flexibility in the event that it is not
able to cai1y out the works as quickly as it planned. If, therefore, there is any
delay to the Contrnctor 's progress for which the Contractor is not responsible,
it may contend that it is entitled to an EOT, even if the delay to progress will
not result in the contract completion date being missed, but merely in erosion
of its float. On the other hand, an Employer may typically say that the
Contrnctor has no EOT entitlement unless the delay to progress will result in a
contract completion date being missed. So (the Employer may say) the project
owns the float.

8.2 Pa1ties should ensure that this issue is addressed in their contracts. The
expression 'float' rai·ely, if ever, appeai·s in standai·d f01m conditions of
contract. Where the wording of the EOT clause in a contract is such that an
EOT is only to be granted if the Employer Delay delays completion beyond
the contract completion date, then the likely effect of that wording is that total
float has to be used up before an EOT will be due. If the wording of the EOT
clause is such that an EOT will be due whenever the Employer Delay makes
the Contractor's planned completion date later than it would have been if it
were not for that delay, then total float will probably not be available for the
benefit of the Employer in the event of Employer Delay. Some conditions of
contract give no indication as to whether an Employer Delay has to affect the
contract completion date or merely the Contractor's planned completion date
before an EOT is due.
8.3 It is impo1t ant that, when entering the contract, the pait ies appreciate the
practical effects of the pe1mutations described above. Under contracts where
the Employer Delay has to affect the contract completion date, if an Employer
Delay occurs first and uses up all the total float, then the Contractor can find
itself in delay and paying liquidated damages as a result of a subsequent
Contractor Delay which would not have been critical if the Employer Delay
had not occuned first. Under contracts where the Employer Delay only has to
affect the Contractor 's planned completion date, the Contractor is potentially

SCL Delay and Disruption Protocol 2"" Edition: February 2017 28

 entitled to an EOT every time the Employer or CA delays any of its activities,
iffespective of their criticality to meeting th e contract completion date. Under
the type of contract that is silent or ambiguous about float, unce1tainty exists
and disputes are likely to follow.
8.4 Many conditions of contract have a provision that allows a final review of any
EOT granted or not granted, reflecting what is perceived to be fair or
reasonable. But reliance on what a CA perceives to be fair or reasonable is not
always a good recipe for ce1tainty. Where EOTs are granted retrospectively, it
is possible to review separately the effect of different types of delay and make
decisions on EOT entitlement, again based on fairness or reasonableness. But
it is a ve1y impo1tant principle of this Protocol that applications for EOT
should be made and dealt with as close in time to the delay event that gives
rise to them, and the 'wait and see ' approach is discouraged (see the guidance
to Core P1inciple 4 in Patt B).
8.5 Core P1inciple 8 (and 9) set out the Protocol 's position on float where the
patt ies in their contract have not made cleat· provision for how float should be
dealt with. This is consistent with cuffent judicial thinking, which is that an
Employer Delay has to be critical (to meeting the contract completion date)
before an EOT will be due. It has the effect that float is not time for the
exclusive use or benefit of either the Employer or the Contractor (unless there
is an express provision in the contract).
8.6 It follows from this approach that a Contractor has no entitlement to an EOT
merely because an Employer Risk Event prevents the Contractor from
completing the works eat·lier than the contract completion date or because an
Employer Delay to Progress takes away the Contractor 's float on any
patt iculat· activity (unless there is an express provision in the contract) .
8.7 If the Contractor wants to make allowance for the possibility of Contractor
Delays (sometimes refetTed to as 'Time Risk Allowance'), then it should
include in the activity durations in its programme such additional time as the
Contractor believes is necessa1y to reflect the risk of such delays to those
activities. Alternatively, it may identify such allowances as sepat·ate activities
in the programme entitled ' Contingency for ... [e.g., groundwork]'. Either is
perfectly acceptable and prndent planning practice.
8.8 When programming softwat·e utilises multiple work day calendat·s, reliance on
float values is cautioned and must be combined with other measures to
detennine the critical path.

9. Identification of float
The identification of float is greatly assisted where there is a properly prepared
and regularly updated programme, the Accepted/Updated Programmes.
9.1 Recommendations for the prepat·ation of the Accepted/Updated Programmes
are set out as patt of the guidance to Core P1inciple 1 in Part B.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 29

10. Concurrent delay- effect on entitlement to EOT
True concurrent delay is the occurrence of two or more delay events at the same
time, one an Employer Risk Event, the other a Contractor Risk Event, and the
effects of which are felt at the same time. For concurrent delay to exist, each of
the Employer Risk Event and the Contractor Risk Event must be an effective
cause of Delay to Completion (i.e. the delays must both affect the critical path).
Where Contractor Delay to Completion occurs or has an effect concurrently with
Employer Delay to Completion, the Contractor's concurrent delay should not
reduce any EOT due.
10 .1 Concunency is a contentious issue, both because there are differing views on
the conect approach to dealing with concunent delay when analysing
entitlement to EOT and because there are differences about the meaning of
concmTent delay itself.
10.2 The Protocol therefore provides guidance in order that issues of concmTency
can be recognised and resolved in an agreed manner as pa.ii of the overall
delay analysis. This guidance is a compromise, taking account of the different
competing ai·guments, but represents what the Protocol considers to be the
most appropriate solution.

Meaning of concurrent delay

10.3 Trne concmTent delay is the occunence of two or more delay events at the
same time, one an Employer Risk Event, the other a Contractor Risk Event,
and the effects of which are felt at the same time. Trne concmTent delay will
be a rare occunence. A time when it can occm is at the commencement date
(where for example, the Employer fails to give access to the site, but the
Contrnctor has no resomces mobilised to cai1y out any work), but it can ai·ise
at anytime.
10.4 In contrast, a more common usage of the te1m 'concunent delay' concerns the
situation where two or more delay events ai·ise at different times, but the
effects of them ai·e felt at the same time.

10.5 In both cases, concmTent delay does not become an issue unless each of an
Employer Risk Event and a Contractor Risk Event lead or will lead to Delay to
Completion. Hence, for concmTent delay to exist, each of the Employer Risk
Event and the Contractor Risk Event must be an effective cause of Delay to
Completion (not merely incidental to the Delay to Completion).
10.6 This issue has both practical and legal implications. From a practical
perspective, the analysis of the effects of the delay events is simpler if it
considers only those events that will result in Delay to Completion (rather than
a consideration of all events in the programme) so that the grant of an EOT
follows the outcome of the critical path analysis. The Protocol recommends
this approach dming the cmTency of the project to allow the timely application
for, and assessment of, EOT.
10.7 From a legal perspective, there ai·e two competing views as to whether an
Employer Delay is an effective cause of Delay to Completion where it occms

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 after the commencement of the Contractor Delay to Completion but continues
in parallel with the Contractor Delay. Tbis c.an be illustrated by the following
example: a Contractor Risk Event will result in five weeks Contractor Delay to
Completion, delaying the contract completion date from 21 January to 25
Febmaiy. fudependently and a few weeks later, a variation is instmcted on
behalf of the Employer which, in the absence of the preceding Contractor
Delay to Completion, would result in Employer Delay to Completion from 1
Febmaiy to 14 Febma1y.
10.8 On one view, the two events ai·e both effective causes of Delay to Completion
for the two week period from 1 to 14 Febma1y because they each would have
caused Delay to Completion in the absence of the other (with the subsequent
delay from 15 Febmai·y to 25 Febmai·y caused by the Contractor Risk Event
alone). Tbis view may be supported by older English appeal comt cases (no
doubt predating critical path analysis) which provide that if the failme to
complete the works is due in pait to the fault of both the Employer and the
Contrnctor, liquidated damages will not be payable. fu a situation like the
example described in pai·agraph 10.7 above, it can be ai-gt1ed that both the
Employer Risk Event and the Contractor Risk Event ai·e in pa.it the cause of
the Delay to Completion.
10.9 On the other view, the Employer Delay will not result in the works being
completed later than would othe1w ise have been the case because the works
were already going to be delayed by a greater period because of the Contractor
Delay to Completion. Thus, the only effective cause of the Delay to
Completion is the Contractor Risk Event. Tbis is the consistent position taken
in recent lower level English comt decisions.
10.10 The Protocol recommends the latter of these two views, i.e. that where an EOT
application relating to the situation refeITed to in pai·agraph 10.7 above is
being assessed, the Employer Risk Event should be seen as not causing Delay
to Completion (and therefore there is no concuITency). ConcmTent delay only
arises where the Employer Risk Event is shown to have caused Delay to
Completion or, in other words, caused critical delay (i.e. it is on the longest
path) to completion. The Protocol cautions that this recommendation would
have to be re-considered were an appeal comt to take a different approach to
this issue.
10.11 fu considering whether concmTent delay exists, the Protocol recommends a
common sense approach to delay analysis. fu pa1t icular, the Protocol
recognises that delay analysis is rai·ely precise down to the day (or even few
days). The application of common sense requires that the margin for
imprecision should be taken into account in reaching a conclusion on
concmTency.

Dealing with concurrent delay

10.12 Where concmTent delay has been established, the Contractor should be entitled
to an EOT for the Employer Delay to Completion, dealt with in accordance
with Core Principle 5. The Contractor Delay should not reduce the amount of
EOT due to the Contractor as a result of the Employer Delay.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 31

10.13 An Employer should be aware that if it instructs a variation after the conti·act
completion date where the failure to complete by the contract completion date
has been caused by Contractor Delay, the Employer may lose its entitlement to
liquidated damages if the Contractor then accelerates to recover the Conti·actor
Delay to Completion at its own cost and that results in the variation (an
Employer Risk Event) becoming the effective cause of Delay to Completion.
10.14 Employer Delay to Completion does not exonerate the Conti·actor for all its
delays prior to that Employer Delay to Completion occuITing. The effect of the
Employer Delay should be assessed as described in Core Principle 5 and any
EOT deten nined due should simply be added to the conti·act completion date.

10 .15 The Protocol's approach to dealing with concUITent delay aims to provide
conti·acting pruties with clarity and ce1tainty about entitlement to EOT.
10.16 The Protocol's position on concuITent delay is influenced by the English law
'prevention p1inciple ', by viitue of which an Employer cannot take advantage
of the non-folfilment of a condition (for example, to complete the works by a
ce1tain date), the perfo1mance of which the Employer has hindered. The
Protocol's approach to the treatinent of concUITent delay (once established)
prevents argUIDents about whether an Employer Delay acting concuITently
with a Contractor Delay actually hinders the progress of the Conti·actor in any
way.

11. Analysis time-distant from the delay event

Where an EOT application is assessed after completion of the works, or
significantly after the effect of an Employer Risk Event, then the prospective
analysis of delay referred to in the guidance to Core Principle 4 may no longer be
appropriate.
11 .1 This section addresses the consideration of EOT applications after completion
of the works, or considerably after the occUITence of the delay event or its
impact. In those cii·cumstances, the prospective analysis of delay refen ed to in
the guidance to Core Principle 4 in Pait B may no longer be relevant or
appropriate.
11 .2 lITespective of which method of delay analysis is deployed, there is an
oveniding objective of ensming that the conclusions derived from that
analysis ru·e sound from a common sense perspective. This is pruticulru·ly
relevant where there is a significant risk that the remaining dm ation
projections, logic links, calendru·s and constraints within the baseline
programme (preferably the Accepted/Updated Programme) might produce
anomalous results.

11 .3 The choice of method of delay analysis to be deployed should be dete1mined

by reference to the following criteria:

(a) the relevant conditions of contract;

(b) the nature of the causative events;

(c) the nature of the project;

SCL Delay and Disruption Protocol 2"" Edition: February 2017 32

 (d) to ensure a propo1iionate approach, the value of the project or dispute;
(e) the time available;
(f) the nature, extent and quality of the records available;
(g) the nature, extent and quality of the programme information available;
and
(h) the f01um in which the assessment is being made.
Different methods of delay analysis
11.4 There are six commonly used methods of delay analysis, and these are
described more paiiicularly below. By way of general explanation:
(a) Ce11ain methods sta11 with the identification and description of an
event (a cause) and thereafter seek to establish its impact (the effect) -
these ai·e cause and effect type analyses. Other methods staii with
identifying critical delay (an effect) and thereafter seek to establish
what might have caused that delay - these are effect and cause type
analyses. Where the EOT application is assessed after completion of
the works, or significantly after the effect of an Employer Risk Event,
then the effect and cause methods ai·e generally considered to be more
forensically reliable because they consider any and all potential causes
of the delay incmTed.
(In contrast, when there is a discrete Employer Risk Event and the
EOT application is being made contemporaneously, then the cause and
effect methods are generally employed, as to do othe1wise would
require the CA to 'wait and see ' (which is discouraged). This is one of
the key reasons the time impact analysis method is recommended for a
contemporaneous analysis of delay as explained in the guidance to
Core Principle 4).
(b) Typically delay analysis requires the identification of the critical
path(s) to the completion date because delays which impact the
completion date must, by definition, reside on the critical path.
Oftentimes the critical path is a sequence or chain of activities through
the remaining works. However, on some projects the critical path that
is driving or detennining the completion date can proceed through a
collection of related work activities (such as when completion is being
driven/detennined by the rate of pipe welding across the works).
(c) Critical path analysis is not limited to analysis conducted through the
use of specialist prograinming software. While such softwai·e can
provide a powerful analytical tool, the critical path to completion may
on occasion be more reliably established through a practical analysis of
the relevant facts or by analysis of production and/or resource data.
(d) Criticality is determined in one of three different ways. Purely
prospective critical path assessments adopt the perspective evident at
the outset of the project only and take no account of progress achieved.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 33

 Contemporaneous critical path assessments adopt an evolving
perspective over the course of the works and take account of the effect
that both historical progress and changes in the strategy for the future
prosecution of the works have on predicted criticality. Retrospective
critical path assessments adopt the perspective evident at the end of the
project (or window ohime).
(e) Delay impact is detennined in one of two different ways. A
prospective delay analysis identifies the likely impact of historical
progress or delay events on a completion date. The conclusions of a
prospective delay analysis may not match the as-built programme
because the Contractor's actual peifo1mance may well have been
influenced by the effects of attempted acceleration, re-sequencing or
redeployment of resources in order to 1:Iy to avoid liability for
liquidated damages or due to other Employer and Conn·actor Risk
Events. A retrospective delay analysis identifies the actual impact of
the delay events on the identified actual or as-built critical path.
(f) As identified above, the Protocol distinguishes between the
dete1mination of the critical path and the dete1mination of the delay
impact. For example, in both the time impact analysis and time slice
windows analysis methods (which are explained below), the critical
path is dete1mined on a contemporaneous basis. However, in the
fo1mer method the delay impact is dete1mined on a prospective basis,
being the modelled incremental impact of the delay event on the future
and remaining programme for the works from the data date of the
paiticular time impact analysis. Conversely, in the latter method the
delay impact is dete1mined on a ren·ospective basis, being the historic
impact of the delay event on the critical path during the time slice up to
the data date of the paiticular analysis.
11.5 The following table provides a summa1y of the methods described below:

Method of Analysis Critical Path Delay Impact

Requires
Analysis Type Dete1·mined Determined
Impacted As- Cause & Prospectively Prospectively • Logic linked baseline
Planned Effect programme.
Analysis • A selection of delay
events to be modelled.
Time Impact Cause & Contemporaneously Prospectively • Logic linked baseline
Analysis Effect programme.
• Update progralllllles or
progress information with
which to update the
baseline progralllllle.
• A selection of delay
events to be modelled.
Time Slice Effect & Contemporaneously Retrospectively • Logic linked baseline
Windows Cause programme.
Analysis • Update progralllllles or
progress information with
which to update the
baseline progralllllle.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 34

 Method of Analysis Cl'itical P ath Delay Impact
R equires
Analysis Type Determined Determined
As-Planned Effect & Contemporaneously Retrospectively • Baseline programme .
versus As-Built Cause • As-built data.
Windows
Analvsis
Retrospective Effect& Retrospectively Retrospectively • Baseline Programme .
Longest Path Cause • As-built programme.
Analysis
Collapsed As- Cause& Retrospectively Retrospectively • Logic linked as-built
Built Analysis Effect prograimne.
• A selection of delay
events to be modelled.

11.6 Some of these methods require a baseline programme. If the pruties have
followed the guidance to Core Principle 1 in Prut B, that will be the
Accepted/Updated Programmes. If the pruties have not followed the guidance
to Core Principle 1 in Prut B and one of those methods is adopted in canying
out the delay analysis, this could lead to greater scope for disagreement on the
assessment of delay.
(a) The impacted as-planned analysis method involves introducing delay
event sub-networks into a logic-linked baseline programme and its
recalculation using CPM programming software in order to determine
the prospective impact these events have on the predicted contract
completion dates shown within the baseline programme. Before
embarking upon the analysis, the analyst needs to confam that the
sequences and durations for the works shown in the programme ru·e
reasonable, realistic and achievable and properly logically linked
within the softwru·e, to deal with the risk that the baseline programme
contains fundamental flaws which cannot be overcome. In general, this
is thought to be the simplest and least expensive fo1m of delay
analysis, but has material limitations, principally because it does not
consider actual progress and changes to the original planned intent.
The product of this method of analysis is a conclusion as to the likely
effect of the modelled delay events on the baseline programme. In
limited circumstances this analysis may be deemed sufficient for
assessing EOT entitlement. Such circumstances include where the
impacted as-planned method is dictated by the te1ms of the contract
and/or where the delay events being considered occurs right at the
outset of the works.
(b) The time impact analysis involves introducing delay event sub-
networks into a logic-linked baseline programme and recalculation of
this updated programme using CPM programming software in order to
dete1mine the prospective impact the delay event would have on the
then predicted completion dates. The baseline programme for each
analysis can be either a contemporaneous programme or a
contemporaneously updated baseline programme (i.e. an Updated
Programme), the difference being the revised contemporaneous
programme may have logic changes I activity I resource changes from
SCL Delay and Disruption Protocol 2"" Edition: February 2017 35
 the original baseline programme. In either case, the analyst needs to
verify that the baseline programme 's historical components reflect the
actual progress of the works and its future sequences and durations for
the works are reasonable, realistic and achievable and properly
logically linked within the software. Mitigation and acceleration
akeady inc01porated into the updated baseline programme need to be
considered as these can conceal or distort the projected impact of the
delay events. The number of delay events being modelled has a
significant impact on the complexity and cost of deploying this
method. The product of this method of analysis is a conclusion as to
the likely delay of the modelled delay events on the programme/critical
path that is most reflective of the contemporaneous position when the
delay events arose. This method usually does not capture the eventual
actual delay caused by the delay events as subsequent project progress
is not considered. This method is also described in the guidance to
Core Principle 4 in the context of a contemporaneous assessment of an
EOT application.
(c) The time slice analysis method is the first of two 'windows ' analysis
methods. This method requires the analyst to verify (or develop) a
reliable series of contemporaneously updated baseline programmes or
revised contemporaneous programmes reflecting an accurate status of
the works at various snapshots (being the time slices) throughout the
course of the works. Through this process, the progress of the works is
divided into time slices. The time slices are typically canied out at
monthly intervals. The series of time slice programmes reveals the
contemporaneous or actual critical path in each time slice period as the
works progressed and the critical delay status at the end of each time
slice, thus allowing the analyst to conclude the extent of actual critical
delay incun ed within each window. Thereafter, the analyst investigates
the project records to detennine what events might have caused the
identified critical delay in each time slice period. For each time slice
programme the analyst needs to verify that the historical components
reflect the actual progress of the works and that its future sequences
and durations for the works are reasonable, realistic and achievable and
properly logically linked within the software.
(d) The as-planned versus as-built windows analysis method is the
second of the 'windows' analysis methods. As distinct from a time
slice analysis, it is less reliant on programming software and usually
applied when there is concern over the validity or reasonableness of the
baseline programme and/or contemporaneously updated programmes
and/or where there are too few contemporaneously updated
programmes. In this method, the duration of the works is broken down
into windows. Those windows are framed by revised contemporaneous
programmes, contemporaneously updated programmes, milestones or
significant events. The analyst detennines the contemporaneous or
actual critical path in each window by a common-sense and practical
analysis of the available facts. As this task does not substantially rely
on programming software, it is impo1iant that the analyst sets out the

SCL Delay and Disruption Protocol 2"" Edition: February 2017 36

 rationale and reasoning by which criticality has been detennined. The
incidence and extent of critical delay in each window is then
detennined by comparing key dates along the contemporaneous or
actual critical path against coITesponding planned dates in the baseline
programme. Thereafter, the analyst investigates the project records to
detennine what delay events might have caused the identified critical
delay. The critical delay incmTed and the mitigation or acceleration
achieved in each window is accumulated to identify critical delay over
the duration of the works.
(e) The retrospective longest path analysis method involves the
detennination of the retrospective as-built critical path (which should
not be confosed with the contemporaneous or actual critical path
identified in the windows methods above). In this method, the analyst
must first verify or develop a detailed as-built programme. Once
completed, the analyst then traces the longest continuous path
backwards from the actual completion date to detennine the as-built
critical path. The incidence and extent of critical delay is then
detennined by comparing key dates along the as-built critical path
against coITesponding planned dates in the baseline programme.
Thereafter, the analyst investigates the project records to detennine
what events might have caused the identified critical delay. A
limitation to this method is its more limited capacity to recognise and
allow for switches in the critical path during the course of the works.
(f) The collapsed as-built (or but-for) analysis method involves the
extraction of delay events from the as-built programme to provide a
hypothesis of what might have happened had the delay events not
occuned. This method does not require a baseline programme. This
method requires a detailed logic-linked as-built programme. It is rare
that such a programme would exist on the project and therefore the
analyst is usually required to intrnduce logic to a verified as-built
programme. This can be a time consuming and complex endeavour.
Once completed, the sub-networks for the delay events within the as-
built programme are identified and they are 'collapsed' or extrncted in
order to detennine the net impact of the delay events. This method is
sometimes done in windows, using interim or contemporaneous
programmes which contain detailed and comprehensive as-built data.
A limitation to this method is that it measures only incremental delay
to the critical path, because the completion date will not collapse
finiher than the closest near critical path.
11. 7 Other methods, which may be reasonably deployed in paiticular circumstances
having considered the criteria in pai·agraph 11.3 above, include: project wide
retrospective as-planned versus as-built analysis (i.e. not in windows), time
chainage analysis, line of balance analysis, resource cm ve analysis, and earned
value analysis.
11.8 In order to avoid or at least minimise disputes over methodology, it is
recommended that the paities 1Iy to agree an appropriate method of delay
analysis before each embai·ks upon significant work on an after the event delay

SCL Delay and Disruption Protocol 2"" Edition: February 2017 37

 analysis. Failme to consult the other paity on delay analysis methodology is a
matter that the Protocol considers might be taken into account by the
adjudicator, judge or ai·bitrator in awai·ding and allocating recoverable costs of
the dispute.

12. Link between EOT and compensation

Entitlement to an EOT does not automatically lead to entitlement to
compensation (and vice versa).
12.1 It is a common misconception in the constrnction industry that if the
Contractor is entitled to an EOT, then it is also automatically entitled to be
compensated for the additional time that it has taken to complete the contl'act.
12.2 Under the common standai·d fonns of contract, the Contl'actor is neai·ly always
required to claim its entitlement to an EOT under one provision of the contract
and its entitlement to compensation for that prolongation under another
provision. Fmi her, some kinds of delay events which are at the risk of the
Employer so fai· as time for completion is concerned cany no entitlement to
compensation for prolongation; delay resulting from adverse weather
conditions being the most common example. They are sometimes
misleadingly called 'neutl'al events'; in fact, they are only neutral in the sense
that one paiiy bears the time risk and the other paiiy bears the cost risk. The
Protocol calls them 'non-compensable Employer Risk Events'. There is thus
no absolute linkage between entitlement to an EOT and the entitlement to
compensation for the additional time spent on completing the contl'act.
12.3 If the method used to assess the amount of an EOT is prospective, i.e. based
on the likely Employer Delay to Completion, and the method used to assess
time for prolongation compensation is retrospective, i.e. is based on the loss
and/or expense actually incuned, then the two assessments of time may
produce different results. This is only to be expected, and does not necessarily
indicate enors in either method.

13. Early completion as it relates to compensation

If as a result of an Employer Delay, the Contractor is prevented from completing
the works by the Contractor's planned completion date (being a date earlier than
the contract completion date), the Contractor should in principle be entitled to
be paid the costs directly caused by the Employer Delay, notwithstanding that
there is no delay to the contract completion date (and therefore no entitlement to
an EOT). However, this outcome will ensue only if at the time they enter into the
contract, the Employer is aware of the Contractor's intention to complete the
works prior to the contract completion date, and that intention is realistic and
achievable.
13.1 It is impo1i ant to understand the significance of the statement above, and to
contI·ast it with the position taken in the Protocol on the effect of total float on
EOT (see Core Principle 8). In relation to EOT, the Protocol takes the position
that an Employer Delay should not result in an EOT unless it is predicted to
delay the activities on the longest path to completion . When it comes to

SCL Delay and Disruption Protocol 2"" Edition: February 2017 38

 compensation, the Protocol considers that, unless there is agreement to the
contraiy, the Contractor should be entitled to compensation for the delay, even
if the delay does not result in an EOT. As with the effect of float on
entitlement to EOT, the Protocol recommends that contracting patties
expressly address this issue in their contract. They should ask themselves the
question: if the Contractor is prevented by the Employer from completing on a
date eat·lier than the contract completion date, should it have a remedy? If so,
in precisely what circumstances? If not, then the contract should say so
expressly.
13.2 Where the patt ies have not addressed this issue in their contract, for the
Contractor to have a valid claim, the Employer must be awai·e at the time the
contract is entered into of the Contractor's intention to complete prior to the
contract completion date. It is not pennissible for the Contractor, after the
contract has been entered into, to state that it intends to complete early, and
claim additional costs for being prevented from doing so.
13.3 It is recognised that the Protocol's position on this issue might be thought to
conflict with at least one first instance English comt decision. Neve1t heless,
the Protocol considers that, as a matter of policy, contractors ought not to be
discouraged from planning to achieve early completion, because of the price
advantage that being able to complete eai·ly is likely to have for the Employer.
But the potential for conflict reinforces why the issue should be addressed
directly in eve1y contract.
13 .4 The recoverable compensation in the situation described in this guidance to
Core Principle 20 will n01mally only comprise the increased costs of the time-
related resources directly affected by the Employer Delay to Progress.
Recove1y of such compensation will also be subject to considerations of
concmTency, as described in the guidance to Core Principle 14 in Pait B.

14. Concurrent delay - effect on entitlement to compensation for

prolongation
Where Employer Delay to Completion and Contractor Delay to Completion are
concurrent and, as a result of that delay the Contractor incurs additional costs,
then the Contractor should only recover compensation if it is able to separate the
additional costs caused by the Employer Delay from those caused by the
Contractor Delay. If it would have incurred the additional costs in any event as a
result of Contractor Delay, the Contractor will not be entitled to recover those
additional costs.
14.1 As it is in relation to EOT, concunency is one of the most contentious issues
in the dete1mination of recoverable prolongation compensation. Contention
arises when the Employer would be liable to compensate the Contractor for
being kept on site longer than expected, but the Contractor was late in can y ing
out the works of its own, and so would have been late completing the works
anyway. Should the Employer be obliged to compensate the Contractor in
these circumstances?

SCL Delay and Disruption Protocol 2"" Edition: February 20 17 39

14.2 Answering this question does not always prove difficult in practice. The
prolongation compensation will be recoverable if the Contractor can prove that
its losses result from the Employer Delay. Proper analysis of the facts may
reveal the true cause without argument.

14.3 Where an Employer Delay to Completion and a Contractor Delay to

Completion are concu1Tent, the Contractor may not recover compensation in
respect of the Employer Risk Event unless it can separate the loss and/or
expense that flows from the Employer Risk Event from that which flows from
the Contractor Risk Event. If it would have inclmed the additional costs in any
event as a result of concUITent Contractor Delay, the Contractor will not be
entitled to recover those additional costs. ill most cases this will mean that the
Contrnctor will be entitled to compensation only for any period by which the
Employer Delay exceeds the duration of the Contrnctor Delay.
14.4 The loss and/or expense flowing from an Employer Delay cannot usually be
distinguished from that flowing from Contractor Delay without the following:

(a) an as-planned programme showing how the Contractor reasonably

intended to cany out the works and the as-planned critical path;
(b) an as-built programme demonstrating the works and sequence actually
can1ed out and the as-built c11tical path;

(c) the identification of activities and periods of time that were not pa1i of
the 01-iginal scope;
(d) the identification of those activities and pe11ods of time that were not
paii of the original scope and that are also at the Contractor 's risk as to
cost; and
(e) the identification of costs atti1butable to the two preceding sub-
sections.
14.5 This analysis should be co-ordinated with any analysis caiTied out by the
Contractor to establish its rights to an EOT, while remembering that the
entitlement to an EOT and the entitlement to compensation may not be co-
extensive.

15. Mitigation of delay and mitigation of loss

The Contractor has a general duty to mitigate the effect on its works of
Employer Risk Events. Subject to express contract wording or agreement to the
contrary, the duty to mitigate does not extend to requiring the Contractor to add
extra r esour ces or to work outside its planned working hours.
15.1 Note that the requirement in the UK Joint Contracts Tribunal (JCT) contracts
for the Contractor to use 'best endeavours' to prevent delay in the progress of
the works and prevent completion of the works being delayed beyond the
completion date may place a higher burden on the Contractor than the n01mal
duty to mitigate. ill the event of Employer Delay, it is of course open to the
Employer to agree to pay the Contractor for measures, which go above and

SCL Delay and Disruption Protocol 2"" Edition: February 2017 40

 beyond the Contractor 's general duty to mitigate. See the remainder of the
guidance to Core Principle 15 below regarding mitigation of loss.
15.2 A Contractor may consider pacing activities that are not on the critical path
(i.e. slowing down non-critical activities so that they proceed at the same
relative pace as the delayed activities on the critical path). The Protocol
recommends that if the Contractor intends to pace non-critical activities, then
it should notify the Employer and the CA of its intention in this regard, along
with its reasons for doing so.
The Contractor's duty to mitigate its loss has two aspects: first, the Contractor
must take reasonable steps to minimise its loss; and secondly, the Contractor
must not take unreasonable steps that increase its loss.
15.3 The Contractor should do all it reasonably can to avoid the financial
consequences of Employer Delay.

15 .4 Most constm ction contrncts include a requirement to the effect that the
Contrnctor must do all it can to avoid, overcome or reduce delay. Some f01ms
actually make compliance with such provisions a condition precedent to the
recove1y of compensation or relief from liquidated damages.

15.5 The limitations on the Contractor 's obligations to mitigate Employer Delay are
set out in this guidance to Core Principle 15. The Contractor does not have a
duty to cany out any change in scope any more efficiently than the original
scope. Neither is the Contractor obliged to expend money in order to attempt
to mitigate the effect of an Employer Risk Event. If the Employer wishes the
Contractor to take measures to mitigate the Employer Delay (whether by
adding extra resources, by working outside its planned working hours or
othe1w ise), the Employer should agree to pay the Contractor for the costs of
those effo1is.
15.6 It is the obligation of the Contractor to proceed with the works so as to
complete on or before the completion date. However, the method, speed and
timing of the activities f01ming the contract scope are generally left to the
Contractor 's discretion, subject to any stipulated prior process of acceptance of
method and/or programme.
15.7 In the event that changes are made to the scope of the works, the Contractor
has a similar obligation as to efficiency in relation to the changed scope as it
has to the original scope.

16. Acceleration
Where the contract provides for acceleration, payment for the acceleration
should be based on the terms of the contract. Where the contract does not
provide for acceleration but the Contractor and the Employer agree that
accelerative measures should be undertaken, the basis of payment should be
agreed before the acceleration is commenced. Contracting parties should seek to
agree on the records to be kept when acceleration measures are employed.
16.1 Some f01ms of contract provide for acceleration by instru ction or by collateral
agreement. In other fo1ms, acceleration may be instructed by reference to
SCL Delay and Disruption Protocol 2"" Edition: February 2017 41
 hours of working and sequence. The Contractor cannot be instructed to
accelerate to reduce Employer Delay, unless the contr·act allows for this.

16.2 Where the contract provides for acceleration, payment for the acceleration
should be based on the tenns of the contract.
16.3 Where the contract does not provide for acceleration but the Contr·actor and
the Employer agree that accelerative measures should be undertaken, the basis
of payment should be agreed before the acceleration is commenced.
16.4 Where acceleration is instructed and/or agreed, the Contractor is not entitled to
claim prolongation compensation for the period of Employer Delay avoided
by the acceleration measures.
Where the Contractor is considering implementing acceleration measures to
avoid the risk of liquidated damages as a result of not receiving an EOT that it
considers is due, and then pursuing a constructive acceleration claim, the
Contractor should first take steps to have the dispute or difference about
entitlement to an EOT resolved in accordance with the contract dispute
resolution provisions.
16.5 Where the Contractor is considering implementing acceleration measures to
avoid the risk of liquidated damages as a result of not receiving an EOT that it
considers is due to it, and then pursuing a constr11ctive acceleration claim, the
Contr·actor should first take steps to have the dispute or difference about
entitlement to EOT resolved in accordance with the contr·act dispute resolution
provisions. Othe1wise, there is the risk that it will not be entitled to
compensation for those acceleration measures. fu any event, before pursuing
any such acceleration measures, the Contr·actor should provide notice with
paii iculars of the intended acceleration measures to the CA. The Contr·actor
should then include such measures in a revised programme.
16.6 Just because the Contractor implements measures to recover Employer Delay
does not necessarily mean that the full costs of those measures were caused by
the Employer Delay. For example, the addition of a second labour gang may
permit the relevant work activities to be completed in a sholier period of time
but, overall, the Contr·actor may have incmTed the costs of the same number of
man-hours as it planned to do. Of course, the Contr·actor may incur higher
rates in engaging the two labour gangs later in time because of the Employer
Delay. Any su ch incremental costs therefore should be compared with
prolongation costs that would othe1wise have arisen to identify whether those
incremental costs ai·e reasonable. Fmi her, any resulting crowding of labour
may lead to loss of productivity which could then fo1m the basis of a
disrnption claim.

17. Global claims

The not uncommon practice of contractors making composite or global claims
without attempting to substantiate cause and effect is discouraged by the
Protocol, despite an apparent trend for the courts to take a more lenient
approach when considering global claims.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 42

17 .1 If the Contractor has made and maintained accurate and complete records
prop01tionate to the project, in most cases the Contractor should be able to
establish the causal link between the Employer Risk Event and the resultant
costs and/or loss, without the need to make a global claim. The failure to
maintain such records is unlikely to justify the Contractor in making a global
claim. The Protocol's guidance as to the keeping of records is set out in the
guidance to Core Principle 1 in Pait B.
17.2 In what should only be rare cases where the financial consequences of the
vai·ious causes of compensation ai·e impossible or impracticable to distinguish,
so that an accurate or reasonable allocation of the compensation claimed
cannot be made between the several causative events, then in this rare situation
it is acceptable to proceed in two stages: (a) quantify individually those items
of the claim for which the causal link can be established between the
Employer Risk Event and the resultant costs and/or loss claimed; and (b) claim
compensation for the remainder as a composite whole.

17.3 For the composite pait of the claim (the global claim), the Contrnctor will
neve1t heless need to set out the details of the Employer Risk Events relied on
and the compensation claimed with sufficient paiticulai·ity so that the
Employer knows the case that is being made against it. It is also advisable for
the Contractor to accompany its claim with a statement as to the steps it has
taken to try fully to pa1ticulai·ise the causal link for each Employer Risk Event
in its claim, and the reasons why this has proved impossible or impracticable.
The Contractor will also need to demonstrate that it would not have incuned
the costs or suffered the loss included in the composite claim in any event.

17.4 In assessing a claim advanced on a global basis, the CA, adjudicator, judge or
arbitrator is not obliged to dismiss it out of hand simply because of its global
nature. Rather, they should consider whether, subject to any additional
contractual restrictions or procedural requirements: (a) Employer Risk Events
occuned which caused delay and/or disrnption to the Contractor; and (b) such
delay or disrnption caused the Contractor to incur additional cost. However, it
is not the responsibility of the CA, adjudicator, judge or ai·bitrator to identify
such events and quantify their effect in circumstances where the Contractor
has failed to do so.
17.5 The Contractor must be aware that there is a risk that a global claim will fail
entirely if any material pa1t of the global loss can be shown to have been
caused by a factor or factors for which the Employer beai·s no responsibility
and it is not possible for the CA, adjudicator, judge or ai·bitrator to assess the
value of that non-recoverable p01tion on the available evidence.

17.6 The guidance in this section applies equally to claims pursued by any other
project paiticipant (including a paity making a counterclaim).

18. Disruption claims

Compensation may be recovered for disruption only to the extent that the
contract permits or there is an available cause of action at law. The objective of a
disruption analysis is to demonstrate the loss of productivity and hence

SCL Delay and Disruption Protocol 2"" Edition: February 2017 43

additional loss and expense over and above that which would have been incurred
were it not for the disruption events for which the Employer is responsible.
18.1 Disrnption (as distinct from delay) is a disturbance, hindrance or intem1ption
to a Contractor's normal working methods, resulting in lower efficiency.
Disrnption claims relate to loss of productivity in the execution of paiticular
work activities. Because of the disrnption, these work activities are not able to
be caITied out as efficiently as reasonably planned (or as possible). The loss
and expense resulting from that loss of productivity may be compensable
where it was caused by dismption events for which the other party is
contractually responsible.
18.2 Disrnption events can have a direct effect on the works by reducing
productivity (such as piecemeal site access different from that planned, out of
sequence works or design changes). They can also lead to secondaiy
consequences on the execution of the works, for example through crowding of
labour or stacking of trades, dilution of supervision through fragmented work
gangs, excessive ove1time (which can lead to fatigue), repeated learning cycles
and poor morale of labour which can fmther reduce productivity.
18.3 That lost productivity will result in financial loss in canying out the impacted
work activities. However, not all lost productivity is subject to compensation.
The Contractor may recover compensation for disrnption (whether under the
contract or for breach of contract) only to the extent that the contract pennits
or there is an available cause of action at law.
18.4 As regards a claim for disrnption under the contract, most standai·d fonns do
not expressly address recove1y for disrnption, although they do address some
of the specific events that could lead to disrnption, such as unforeseen ground
conditions and untimely approvals or instrnctions from the CA. Disrnption is
also not a cause of action at law in its own right. The Contractor must
therefore explain in its claim document the legal basis of its entitlement.
18.5 When it comes to explaining the cause of disrnption, it is often the case that
the Contractor will rely upon multiple and intenningled disrnption events to
explain its loss of productivity and to suppo1t its claimed entitlement to loss
and expense relating to the impacted work activities. Depending upon the
circumstances, it may not be possible or practicable to identify the loss of
productivity, and hence loss and expense, relating to individual disrnption
events. Hence, once the Contractor has excluded the costs and/or loss relating
to specific Employer Risk Events for which the causal link can be established,
the remaining dismption claim may present the rare situation in which it is
acceptable to claim compensation as a composite whole (i.e. a global claim).
The risks associated with proceeding with a global claim ai·e explained in the
guidance to Core Principle 17 in Pait B.

Disruption analysis
18.6 Disrnption is demonstrated by applying analytical methods and techniques to
establish the loss of productivity arising out of the disrnption events and the
resulting financial loss. Disrnption is not merely the difference between what
actually happened and what the Contractor planned. From the Contractor's

SCL Delay and Disruption Protocol 2"" Edition: February 2017 44

 perspective, the objective of a dismption analysis is to demonstrate the lost
productivity and hence additional loss and expense over and above that which
would have been incmTed were it not for the disruption events for which the
Employer is responsible. Many of the causes of lower than anticipated
productivity (such as poor supervision or planning, re-work due to defects,
inadequate coordination of subcontractors, or over-optimistic tendering or
tendering e1rnrs) will not justify compensation for disrnption. It is only the
consequences of disrnption events that are the responsibility of the Employer
for which compensation might be payable to the Contractor. The productivity
loss caused by all other events must be excluded from the claim.
18.7 The sta1ting point of a dismption analysis is a review of productivity in
canying out the works over time in order to detennine when lower
productivity was achieved and what work activities were impacted. The
analysis should then continue with development of an understanding of what
works were caITied out, when the works were canied out and what resources
were used, followed by a review of the financial loss incmTed. Maintaining
accurate project records is therefore equally as impoitant for a disrnption
analysis as it is for a delay analysis.
18.8 The Protocol does not recommend the use of percentage additions to tender
productivity assmnptions, where these are unsuppo1ted by analysis. Where the
Contractor has demonstrated disrnption events for which the Employer is
contractually responsible, even on ve1y simple projects the Contractor should
be capable of canying out some analysis (albeit a limited analysis in the case
of simple projects) in estimating the lost productivity and hence loss and
expense caused by those dismption events. The onus of proof of the fact that
disrnption has led to financial loss remains with the Contractor.
18.9 The Contractor seeking to be compensated for disrnption must demonstrate the
quantum of its claim to the level of ce1tainty reasonably required by the CA,
adjudicator, judge or arbitrator pursuant to the applicable law. That quantum is
the cost of the productivity loss, which will be the difference between realistic
and achievable productivity and that which was actually achieved in canying
out the impacted work activities as a result of the dismption events for which
the Employer is responsible. Original tender assmnptions should not
automatically be considered as a ' realistic and achievable ' baseline. As
discussed fmther below, there are several methods of deriving a baseline
against which to measure actual levels of productivity achieved as a result of
the disrnption events for which the Employer is responsible.
18 .10 It is recommended that compensation for disrnption caused by variations be
agreed in advance of canying out the variations or, where this is not
practicable, as soon as possible after completion of the variations (see the
guidance to Core Principle 19 in Pait B).
18 .11 It is recommended that disrnption caused by other events for which the
Employer is responsible are compensated by the actual reasonable costs
incmTed, plus a reasonable allowance for profit if allowed by the contract.

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Methods of disruption analysis
18.12 There are several methods for the calculation of lost productivity resulting
from disrnption events, each with varying accuracy and general acceptance. A
broad distinction may be made between those methods that rely on actual or
theoretical measurements of comparative productivity (productivity-based
methods), and those which rely on analysis of planned and actual expenditure
of resource or costs (cost-based methods). The fo1mer seek to measure the loss
of productivity in the utilised resources and then to price that loss; the latter
seek more directly to ascertain the difference between actual cost and planned
cost without first measuring productivity losses in the utilised resources.

18.13 Set out below is an explanation of each of the following more common
methods:

Productivity-based methods Cost-based methods

1. Project-specific studies: 1. Estimated v incuned labour

(a) Measured mile analysis 2. Estimated v used cost

(b) Earned value analysis

(c) Programme analysis

(d) Work or trade sampling

(e) System dynamics modelling

2. Project-comparison studies

3. fudustiy studies

18.14 The primary focus of a disrnption analysis will be on the direct labour and
task-specific plant resources said to have been disrnpted. However, there may
also be an impact on indirect resources, such as supervision staff or standing
plant (i.e. where such resources are increased rather than merely extended),
leading to additional costs. fu demonsti·ating that the disrnption events also
caused additional costs for indirect resources, the Conti·actor will need to
demonsh'ate the conelation between those costs and the loss of productivity in
the direct resources.

Productivity-based methods
18.15 There are three general categories of productivity-based methods, listed below
by order of preference because of their decreasing reliability and general
acceptance:
(a) project-specific studies;

(b) project-comparison studies; and

( c) industiy studies.

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Project-specific studies
18.16 Project-specific studies include the measured mile analysis, earned value
analysis, programme analysis, work or trade sampling, and system dynamics
modelling. Of these, and subject to the availability of the necessa1y records,
the measured mile analysis is the most widely accepted method of calculating
lost productivity. This is because it considers only actual effects of the
disrnption events for which the Employer is responsible thereby eliminating
disputes over the validity of original tender stage productivity assumptions and
the Contractor's own perfonnance.
(a) Measured mile analysis: This compares the level of productivity
achieved in areas or periods of the works impacted by identified
disrnption events with productivity achieved on identical or like
activities in ar eas or periods of the works not impacted by those
identified disrnption events. Care must be exercised to compare like
with like. For example, it would not be conect to compare work
caITied out in the learning cmve part of a project with work executed
after that period. In addition, the baseline period selected must be
sufficiently long to se1ve as a reliable sample of non-impacted
perfo1mance. While widely accepted, the measured mile analysis can
be complex and docl.llllent-intensive. It may be pruticularly problematic
where: (a) there is no completely unimpacted period or ru·ea of the
same or a similar work activity to act as the baseline with which to
compru·e the impacted work activity; or (b) the impacted work activity
in respect of which the loss of productivity is being measured was also
impacted by matters not giving rise to entitlement to compensation,
leading to the need to calculate productivity adjustments. In this
regru·d, whilst adjustments might be helpfol, the more that are applied,
the more theoretical and unreliable the analysis will become. It may be
preferable instead to identify a period of least disrnption and, using this
as the measured mile, to show minimlllll likely additional loss and
expense during periods of greater disrnption. This analysis will not of
itself, however, capture the initial lost productivity inherent in the
measured mile.
(b) Earned value analysis: This identifies the amount of man-hours
reasonably included in the tender allowance for completing ce1tain
work activities and compru·es this with the actual man-hours for
completing those work activities. As the work activities are progressed
and the tender allowance is expended, the man-hours are 'earned ' . For
example, if the Contractor assl.lllled in its tender allowance that it
would take 20 man-hours to pour 10 m 3 of concrete, when 10 man-
hours have been expended, those man-hours have been 'eruned' and,
excluding any flawed or over-optimistic tender assl.llllptions and
disrnption events, the Contractor ought to have achieved 50% of the
concrete pour work activities. If in fact the Contractor ultimately
expended 35 hours to pour the foll 10 m 3 of concrete, again, excluding
any flawed or over-optimistic tender assl.llllptions and disrnption events
which ru·e the Contractor 's responsibility, the additional 15 man-hours

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 above the assumed 20 man-hours is the consequence of the
productivity loss. The analysis can also assess the man-hours expended
in particular periods of time. Where details of planned and actual man-
hours are not available, an earned value analysis might focus upon
cost. See paragraph 18.9 above against automatically applying original
tender assumptions.
(c) Programme Analysis: This utilises resource-loaded programmes
created using specialist software, which provide the means to allocate
and track resources including labour, plant, cost and quantities over the
life of the project. Based upon the inputs provided, the specialist
programme software assists in calculating periodic percentage
completion and earned value for impacted activities. It is therefore a
variant of earned value analysis.
(d) Work or trade sampling: This relies upon contemporaneous records
of direct works observations to detennine productivity. If these records
are not available, this method is unlikely to be persuasive, although
factual witness evidence may assist. These obse1vations, along with
adjustments to constrnction methods and crews, might be recorded in
tradesman questionnaires.
(e) System dynamics modelling: This is a computer simulation approach
using specialist software to produce a model of the disrnpted project.
That model replicates the complex network of relationships and
interactions that influence labour productivity and rework including the
various stages of the project (design, approvals, procurement or
manufacturing, installation, constrnction, commissioning and taking
over), the different paiis of the works, workflows and project
paiiicipants, and the direct effects of the claim events. The model
reproduces the actual labour hour expenditures (including the as-built
programme and added variations and other changes) . The project is
then re-simulated in the absence of the claim items resulting in a 'but-
for ' model. The robustness of the conclusions derived from this
analysis is dependent upon: (a) the accuracy and completeness of the
source input data and hence the quality and availability of project
records; (b) the reasonableness of the analyst 's judgements in
establishing the model; and (c) the transpai·ency of the analytical
process can1ed out by the specialist software. Given these challenges
and the complexity and cost involved in caiTying out this analysis, it is
not as collllllonly used as other methods in calculating loss of
productivity.

Project-comparison studies
18.17 Project-compai1son studies may be relied upon when there ai·e insufficient
records available to cai1y out a project-specific study. With this approach,
productivity on the disrnpted project is compai·ed to similar or analogous
projects (or similai· or analogous work activities on other projects) within the
same industiy where the disrnption events (and hence the productivity losses)
did not occur. This approach depends on the availability of sufficient data

SCL Delay and Disruption Protocol 2"" Edition: February 2017 48

 from the comparator projects to ensure that the comparison is on a like-for-like
basis, and to allow proper testing of alleged comparability. This approach will
not be persuasive without transparency on the data from the comparator
projects.
fudustiy studies
18.18 Where there is insufficient contemporaneous documentation to supp01t a
project-specific study or project-compai·ison studies ai·e not available, a
productivity-loss estimate using data developed from studies based on
industiy -wide reseai·ch may be of assistance, though only if these studies ai·e
relevant to the working conditions and types of constiuction that applies to the
disrnpted project.
18 .19 Here, factors generated from industiy studies (some based on empirical data;
some on non-empirical data) ai·e relied upon to estimate lost productivity.
These factors are applied to the disrnpted project's actual resource losses in
order to detennine whether the level of loss measured on the disrnpted project
is consistent with the factors determined in those studies. For example, for
projects that ai·e disrnpted by severe weather, these studies can provide factors
which account for changes in temperature and their effects on ti·adesmen
practices and productivity. Other studies address the consequences of different
project or geographical chai·acteristics on productivity. Examples of these
industiy studies are those developed by the Mechanical Conti·actors
Association of America (MCAA), which give different percentages applicable
for vai·ious types of disrnption events according to severity, 'Effects of
Accelerated Working, Delays and Disrnption on Labour Productivity'
produced by The Chaitered fustitute of Building, and studies produced by the
National Electi1cal Conti·actors of Ame11ca (NECA) and the U.S. Alm y Co1ps
of Engineers. Acadeinic studies developed by university research, and
available in specialist literature, may provide fiuther assistance.
18.20 fudustiy studies of these kinds, paiticulai·ly where unsuppo1ted by
con oborating data from the project in question, ai·e however liable to be
criticised as being theoretical and so should be used with caution.

Cost-based methods
18.21 Cost-based methods provide the least robust suppo1t for a disrnption claim and
are often applied when lost productivity cannot be reliably calculated utilising
a productivity-based approach. These methods focus on project cost records
and seek to provide a comparison between either incuned and estimated cost,
or labour used and estimated labour, for those activities impacted by
disrnption events for which the Employer is responsible.
18.22 Several fo1mulae are available, the simplest being total labour cost expended
(by the Conn-actor) less total labour cost paid (by the Employer to the
Conti·actor), which equals total labour cost lost. However, for the reasons in
pai·agraph 18.6 above, this approach is unlikely to be persuasive without
fiuther analysis. Modified fo1mulae which exclude from the claimable costs
calculation the costs of the Conn-actor 's tender enors and any disrnption
events for which the Conh'actor is responsible will be more persuasive. Even if

SCL Delay and Disruption Protocol 2"" Edition: February 2017 49

 this is done, that will still leave the Contractor advancing a global claim; the
risks associated with proceeding with a global claim are explained in the
guidance to Core Principle 17 in Prut B.
18.23 Overall, cost-based methods may provide some assistance if there is sufficient
documentation and suppoiting pruticulars to demonstrate the reasonableness of
tender assumptions (specifically that the estimated labour man-hours were
realistic and achievable), that the actual costs inclmed were reasonable and
that the costs of any events for which the Contractor is responsible have been
excluded.
18.24 Costs-based methods are unlikely to be persuasive where there ru·e
productivity-based methods that can reasonably be deployed in the
circumstances.

Further guidance
18.25 Under appropriate circumstances, and in va1ying degrees, all of the methods
introduced above may suppo1i a disrnption claim. The most reliable and
accurate ru·e project-specific studies, paiticularly a properly implemented
measured mile analysis. An analysis which combines a productivity-based
method and a cost-based method may provide useful cross-checking where it
is propo1tionate to cany out two analyses. Whichever method is used for
identifying and establishing disrnption and the resulting loss and expense, it is
necessary to isolate issues that ai·e likely to have impacted productivity but
which ru·e unrelated to the Employer's liability.
18.26 The Contractor should have regard to the guidance to Core Principle 1 in Prut
B in relation to records in ensuring it maintains appropriate records which, if
necessary, can be relied upon to supp01i a disrnption claim.
18.27 Contractors sometimes asse1i claims for the cumulative impact of disrnption
events on the basis of exponential lost productivity resulting from the
combination of individual disrnption events over and above that appru·ently
accounted for by aggregating the lost productivity caused by each disrnption
event. It is often the case that the greater the number of disrnption events, the
harder it is to quantify losses with precision because of the record-keeping
challenges imposed through no fault of the Contractor, who would not have
expected these challenges when the contract was entered into.
18.28 This is an area where pa1ticular cai·e has to be taken to address the risks
associated with global claims. However, if all causes of disrnption can
genuinely be said to be the Employer's responsibility, and if the financial
consequences of those disrnption events are impossible or impracticable to
distinguish, then such an approach may be valid and indeed persuasive. In
effect, the proposition being put is that the Contractor 's analysis is not capable
of explaining the full extent of financial loss that has actually occuned by
reference to the individual disrnption events, but that the loss, despite the
absence of any more proof, must be fully the responsibility of the Employer.

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18.29 Where disrnption events have caused delay or delay has caused disrnption, the
Contractor may also can y out a delay analysis to suppol1 its claims. Delay
analyses are addressed in the guidance to Core Principles 4 and 11 in Pait B.

19. Valuation of variations

Where practicable, the total likely effect of variations should be pre-agreed
between the Employer/CA and the Contractor to arrive at, if possible, a fixed
price of a variation, to include not only the direct costs (labour, plant and
materials) but also the time-related and disruption costs, an agreed EOT and the
necessary revisions to the programme.
19 .1 Eve1y competently drafted constrnction contract contains a mechanism
entitling the Employer to va1y the works by addition or deletion, with a
mechanism for detennining the price of the vai·iation. The standard fonns
sometimes, but not always, contain wording enabling the patties to agree in
advance of the execution of the vai·iation, what its fixed price will be. This
practice is supp01ted by the Protocol.
19.2 Users of design and constrnct fonns of contract ai·e reminded that it is essential
to have a list of rates and prices to be used in the event of change in the
Employer 's requirements.
19.3 Typically, vai·iation clauses provide that where the varied work is of a similai·
character and executed under similai· conditions to the original work, the
tendered contract rates should be used. Where the work is either not of a
similai· chai·acter or not executed under similar conditions, the tendered
contract rates can be used, but adjusted to take account of the different
circumstances. If the work is quite dissimilai-, reasonable or fair rates and
prices ai·e to be determined. Fair or reasonable rates will generally be
reasonable direct costs plus a reasonable allowance for overheads (on and off-
site) and profit.
19.4 Under the JCT standard fonns of building contract, any loss and/or expense
caused by an adverse effect on the progress of the works as a result of acts or
omissions of the Employer is to be asceitained sepai·ately from the direct cost
and associated preliminaries/overheads of an instrncted variation .

19.5 Under other standard foims, prolongation compensation arising from

vai·iations is to be valued if possible as pait of the vai1ation at or on the basis
of the rates and prices in the bill of quantities or schedule of rates, or on the
basis of a fair valuation .

19.6 It is not good practice to leave to be compensated separately at the end of the
contract the prolongation and disrnption element of a number of different
vai·iations and/or changes . This is likely to result in the Contractor presenting a
global claim, which is a practice that is to be discouraged. Where it is not
practicable to agree in advance the amounts for prolongation and disrnption to
be included in vai·iations and sums for changed circumstances, then it is
recollllllended that the pa1ties to the contract do their best to agree the total
amount payable as the consequence of the variations and/or changes sepai·ately
as soon as possible after the vai·iations ai·e completed.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 51

19. 7 Though some standard fonns of contract have a prov1s10n that where a
variation affects unvaried work, the affected unvaried work may be treated as
varied, these provisions are rarely used. The use of these provisions is
encouraged, in order to promote early agreement on the complete effect of the
variation.

20. Basis of calculation of compensation for prolongation

Unless expressly provided for otherwise in the contract, compensation for
prolongation should not be paid for anything other than work actually done,
time actually taken up or loss and/or expense actually suffered. In other words,
the compensation for prolongation caused other than by variations is based on
the actual additional cost incurred by the Contractor. The objective is to put the
Contractor in the same financial position it would have been if the Employer
Risk Event had not occurred.
20.1 Delay causes prolongation. Prolongation causes increased cost. The
recoverability of compensation for prolongation depends on the tenns of the
contract and the cause of the prolongation. Obviously, any prolongation costs
resulting from Contractor Risk Events must be home by the Contractor.
Compensation for prolongation resulting from Employer Risk Events will
primarily comprise the Contractor 's extended use of time-related resources,
notably its site overheads. It is, however, not possible to say that compensation
for prolongation comprises exclusively additional time-related resources
because other types of recoverable loss may result from Employer Risk
Events.
20.2 The recove1y of prolongation compensation depends on the tenns of the
contract and the cause of the prolongation. Prolongation costs may be caused
by any kind of Employer Risk Event - a variation, a breach of contract, or
other identified provision in the contract - for example, unforeseen ground
conditions.
20.3 Whether the cause of the prolongation is governed by a provision in the
contract or a breach of contract, it is up to the Contractor to demonstrate that it
has actually suffered loss and/or expense before it becomes entitled to
compensation, unless the contract provides othe1wise.
20.4 Arguments about proof of loss could be reduced or avoided altogether if the
contract contained an agreed amount per day that can be applied to each day of
prolongation. This is the reverse of the n01mal Employer's liquidated damages
provision. It may be necessa1y to have a number of different agreed amounts
to be applied depending on the stage in the project where the delay occurs.
One method of fixing the figure(s) would be for the Contractor to price a
schedule of rates with indicative quantities at tender stage.
20.5 If the prolongation is caused by a variation, then it is recommended that the
compensation for prolongation should be agreed as soon as possible after
completion of the variation and where practicable included in the valuation of
the variation (see the guidance to Core Principle 19 in Patt B).

SCL Delay and Disruption Protocol 2"" Edition: February 2017 52

21. Relevance of tender allowances
The tender allowances have limited relevance to the evaluation of the cost of
prolongation and disruption caused by breach of contract or any other cause
that requires the evaluation of additional costs.
21.1 For prolongation or dismption compensation based on actual cost or loss
and/or expense, the tender allowances are not relevant because the Contractor
is entitled to its actual costs of the prolongation or dismption.
21.2 It is a common misunderstanding in the constrnction industiy that if the
Contractor has made no or inadequate allowance for site overheads in its
tender, then that fact limits or removes its entitlement to compensation for
prolongation and/or disrnption where the basis of recove1y is actual cost
incmTed. This is not conect. Under these circlllllStances recoverable
compensation requires the asce1iainment of the actual cost of remaining on site
for the additional time. The tender allowances are therefore of little relevance
to the asce1iainment of compensation under these circlllllstances.
21.3 The tender allowances may be a useful reference point for the evaluation of
prolongation and disrnption caused by a variation, but only in those
circlllllstances where the different conditions or circumstances under which the
variations are canied out make it inappropriate to apply the conti·act rates or
prices. Notwithstanding the advice of the Protocol, there is nothing to prevent
the use of the tender allowances as a rough guide for the agreement of
prolongation costs or for checking the recove1y of prolongation costs through
the value of varied work, if that is what the paiiies for convenience wish to do.

22. Period for evaluation of compensation

Once it is established that compensation for prolongation is due, the evaluation
of the sum due is made by reference to the period when the effect of the
Employer Risk Event was felt, not by reference to the extended period at the end
of the contract.
22.1 Liability for compensation must first be established by showing that the
prolongation has been caused by an Employer Risk Event

22.2 Arglllllents collllllonly ai1se as to the time when recoverable prolongation

compensation is to be assessed: is it to be assessed by reference to the period
when the Employer Delay occmTed (when the daily or weekly amount of
expenditure and therefore compensation may be high) or by reference to the
extended period at the end of the conti·act (when the amount of compensation
may be much lower)?
22.3 The answer to this question is that the pe11od to be evaluated is that in which
the effect of the Employer Risk Event was felt.
22.4 If amounts of compensation per day for prolongation were pre-agreed, then the
point in time when the compensable prolongation occmTed would need to be
consistent with what has been agreed.

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GUIDANCE PART C: OTHER FINANCIAL
HEADS OF CLAIM
This Part sets out guidance in relation to further financial heads of claim that often
arise in the context ofdelay and disruption.

1. Claims for payment of interest

1.1 Some standard fo1ms of contrnct make provision for the way interest, as a
component of delay and dismption compensation, is payable. Interest may also
be a component of damages if it can be shown that the loss (in the f01m of
additional interest paid) was actually suffered as a result of a breach of the
contract, and the loss was in the contemplation of the pa11ies at the time of
contracting. There are also statuto1y rights to interest.
1.2 The following are legitimate bases for claims for interest under contracts
subject to English law, subject to express contractual provisions to the
contraiy where relevant, and proof where necessaiy.

Interest pursuant to contract

1.3 The pa11ies can agree in the contract the rate of interest and the circumstances
in which it will be payable. The rate may not be enforceable if it is penal in
nature (out of all propo11ion to the legitimate interests of the Contractor in
receiving the timely payment of compensation that is due for delay and
dismption). Vai·ious standai·d fo1ms of contracts contain an express contractual
right to interest.

Interest as damages/finance charges

1.4 It is the position in most ai·eas of business that interest payable on bank
bon owings (to replace the money due) or the lost opportunity to eain interest
on bank deposits, is quantifiable as damages where the claimant can show:

(a) that such loss has actually been suffered; and

(b) that this loss was within the reasonable contemplation of the paiiies at
the time of contracting.
1.5 It is recognised that, in the constm ction industiy, it will always be in the
contemplation of the pa11ies at the time they enter into their conti·act that if
deprived of money the Conti·actor will pay interest or lose the ability to earn
interest. Contractors therefore need only establish that the loss was actually
suffered.

Time when interest starts to run

1.6 There are often ai·guments as to the date on which interest on a Contractor's
claim should staii to nm. Conti·actors will argue that it should be the date on
which they incuned expenditure for which they are entitled to compensation.
Employers will say that interest should nm only from the date that the

SCL Delay and Disruption Protocol 2"" Edition: February 2017 54

 Contractor has provided all infonnation needed to satisfy them that the
expenditure has been incuned.
1. 7 The appropriate staiting date will not be the same in all circumstances, but
generally the sta1ting date for the payment of interest should be the eai-liest
date on which the principal smn could have become payable, which will be the
date for payment of the certificate issued immediately after the date the
Contractor applied for payment of the loss and/or expense. This will be subject
to any notice requirements in the contract. In contracts where there ai·e no
ce1tificates, the Protocol recommends that interest should strut to run 30 days
after the date the Contractor suffered the loss and/or expense.
Statutory interest on debts
1.8 In conside1ing claims for prolongation costs (and any other moneta1y claims)
the paities should be aware of the various statuto1y rights to interest that may
be available to an adjudicator, judge or arbitrator should they not resolve their
dispute. These statutory rights include the Late Payment of Commercial Debts
(Interest) Act 1998, section 35A of the Senior Comt Act 1981 , section 49 of
the Arbitration Act 1996 and the Judgments Act 1838.

2. Head office overheads and profit

2.1 This section applies to claims for compensation other than the valuation of
vai·iations on the basis of rates and prices in the bill of quantities or schedule
of rates which include provision for head office overheads and profit.
2.2 Where there is Employer Delay to Completion, a Contractor will often include
a claim for the lost contribution to head office overheads and the lost
oppo1tunity to ea.in profit (either on the project the subject of the claim or on
other projects). This is on the basis that its time-related resources have been
prolonged on the project, rather than earning revenue (including, importantly,
contribution to head office overheads and profit) on other projects from the
contract completion date.
2.3 Head office overheads can be sub-divided into: 'dedicated overheads' which
through cai·eful record keeping can be attributed to the specific Employer
Delay; and 'unabsorbed overheads' (such as rent and some salai·ies) which ai·e
incmTed by a Contractor regai·dless of its volume of work. These costs, if
demonstrated, may be recoverable under the contract or, alternatively, may be
claimed as damages for a breach of contract.
2.4 Regai·ding the lost opp01tunity to ea.in profit, this is generally not recoverable
under the standai·d foims. Instead, Contractors typically fraine their claim for
the lost opportunity to earn profit as a claim for damages for breach of
contract. An appropriate rate may be aiTived at from the Contractor's audited
accounts for the three previous financial yeai·s closest to the Employer Risk
Events for which audited accounts have been published. If the contract does in
fact allow the recove1y of a profit element in addition to any other
compensation for delay to the project the subject of the claim, the amount of
profit allowed should reflect the fact that there is no risk involved in the
eaining of that profit.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 55

2.5 Unless the tenns of the contract say othe1w ise, a lost contribution to head
office overheads is generally recoverable as a foreseeable loss resulting from
prolongation. It may be more difficult for the Contractor to demonstrate that
the lost opportunity to earn profit was a foreseeable loss.
2.6 Before it can recover unabsorbed overheads and lost profit, the Contractor
must be able to demonstrate that it has:
(a) failed to recover the overheads and earn the profit it could reasonably
have expected during the period of prolongation; and
(b) been unable to recover such overheads and earn such profit because its
resources were tied up by Employer Risk Events.

2.7 In order to succeed in su ch a claim, the Contractor must demonstrate that there
was other revenue and profit earning work available which, in the absence of
the Employer Delay, would have been secured by the Contractor.

2.8 The Contractor should make all reasonable effo11s to demonstrate through
records the head office overheads that it has failed to recover and the profit it
has been deprived of earning. If it is not othe1w ise feasible to quantify the
unabsorbed overheads and lost profit, foimulae may be used (with caution) to
quantify unabsorbed overheads and lost profit once it has been successfully
demonstrated that overheads have remained unabsorbed and there is a lost
oppo11unity to earn profit as a result of an Employer Risk Event. The burden
of proving that it has unabsorbed overheads and lost profit always rests with
the Contractor. A foimula just serves as a tool for the quantification of the loss
(also see paragraph 1.28 regarding Core Principle 1 in Pali B).
2.9 The three most commonly used foimulae are Hudson, Emden and Eichleay.
They are set out in Appendix A.

2.10 The use of the Hudson f01mula is not suppo1i ed. This is because it is
dependent on the adequacy or othe1w ise of the tender in question, and because
the calculation is derived from a number which in itself contains an element of
head office overheads and profit, so there is double counting.
2.11 In the limited circumstances where a f01mula is to be used, the Protocol
prefers the use of the Emden and Eichleay foimulae. However, in relation to
the Eichleay foimula, if a significant propo11ion (more than, say, 10%) of the
final contract valuation is made up of the value of variations, then it will be
necessary to make an adjustment to the input into the f01mula, to take account
of the fact that the variations themselves are likely to contain a contribution to
head office overheads and profit.
2.12 The CA or, in the event of a dispute, the person deciding the dispute, should
not be absolutely bound by the results of a foimula calculation. It is possible
that the use of a paii icular foimula will produce an anomalous result because
of a paiiicular input into it. It is su ggested that the result of the use of one
f01mula be cross-checked using another foimula. A spreadsheet to do this is
available on the Society website: https://www.scl.org.uk/resources/delay-
disrnption-protocol.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 56

2.13 The tender allowance for head office overheads and profit may be used, if that
is what the paities for convenience wish to do.

3. Claim preparation costs

3.1 Most constmction contracts provide that the Contractor may only recover the
cost, loss and/or expense it has actually incuned and that this be demonstrated
or proved by documentaiy evidence. The Contractor should not be entitled to
additional costs for the preparation of that inf01mation, unless it can show that
it has been put to additional cost as a result of the unreasonable actions or
inactions of the CA in dealing with the Contrnctor's claim. Similarly,
unreasonable actions or inactions by the Contractor in prosecuting its claim
should entitle the Employer to recover its costs. The Protocol may be used as a
guide as to what is reasonable or unreasonable.

SCL Delay and Disruption Protocol 2od Edition: February 2017 57

2nd edition of the Protocol
The work involved in reviewing the 1st edition and drafting the 2nd edition of the
Protocol was can1ed out by the following individuals:

Kim Rosenberg (Chair)

DavidBany
Richard Bayfield
Cln1s Ennis
Keith Kirkwood
Mai1anne Ramey
Jeremy Winter
Thanks also to The Honourable Mrs Justice O'FaiTell, Deepa Khandhia and Oliver
Sangster for their conti1butions and supp01t.

1st edition of the Protocol

Most of the work involved in drafting the 1st edition of the Protocol was caiTied out
by the following individuals:
Jeremy Winter (Chair)
Richai·d Bayfield
Paul Brough
Anthony Caletka
Jonathan Douglas
Peter Johnson
Stua1t Jordan
StuaitNash
Keith Pickavance
Jim Pragnell
David Richai·ds
Thanks also to the following for their conti·ibutions, comments and suppoit:

Paul Bennett John McGuiness

John Burgess Anthony Morgan
Mike Desmond Dan Octavian
Nigel Gamble Michael Stokes
Andrew Grantham Douglas Treacher
Keith Kirkwood Andrew Yendall
Jacqueline Mimms John Burbidge
Walter Murphy John Crane
Peter Shaw Tony Elven
John Temprell Roger Gibson
Simon Wrightson Paul Kelly
Michael Blackbmne Christopher Miers
Gerlando Butera Brendan Murphy
John Dye Greg Russell
Brian Gayton Kate Sullivan
John Hammond Dennis Wiles

SCL Delay and Disruption Protocol 2"" Edition: February 2017 58

Drafts of the 1st and 2nd editions of the Protocol were reviewed and commented on
by many individuals and organisations. Their comments were duly studied by the
drafting committees and, where considered appropriate, have influenced the text. The
drafting committees wish to record their respective appreciation of the time and effo1t
devoted by all those who commented. The ultimate decision on the fotm and content
of the document rests with the respective drafting committees.

SCL Delay and Disruption Protocol 2od Edition: February 2017 59

APPENDIX A
Definitions and glossary
This Appendix provides explanations for words and expressions used in the Protocol.
In order to make the Protocol as easy to read as possible, the use of capitalisation for
defined terms has been kept to a minimum.

acceleration
The application of additional resources or alternative construction sequences or
methodologies seeking to achieve the planned scope of work in a shorter time than
planned or execution of additional scope of work within the original planned duration.

Accepted Programme
The Protocol recommends that the Contr·actor be required to submit a draft
programme for the whole of the works to the CA and that this draft programme be
accepted by the CA. Once accepted by the CA, it is known in the Protocol as the
Accepted Programme.

Activity
An operation or process consuming time and possibly other resources. An individual
or work team can manage an activity. It is a measurable element of the total project
programme.

activity float
The duration contingency directly related to a single activity built into the planned
duration of that activity. Activity float is established simply by dictating an activity
duration that is greater than the actual time needed to complete that activity.

activity-on-the-node network
A network in which the nodes symbolise the activities. A precedence diagram.

as-built programme
The record of the histo1y of the constr11ction project in the f01m of a programme. The
as-built programme does not necessarily have any logic links. It can be merely a bar-
chait record of the stait and end dates of eve1y activity that actually took place. 'As
constructed programme ' has the same meaning.

as-planned versus as built windows

See paragraph 11.6(d) in Part B.

change/variation
Any difference between the circumstances and/or content of the contract works as
caiTied out, compared with the circumstances and/or content under which the works
ai·e described in the contr·act documents as required to be or intended to have been
caiTied out. A change or variation may or may not can y with it a right to an EOT
and/or additional payment.

collapsed as-built
See paragraph 11.6(f) of Pait B.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 60

compensable event
Expression sometimes used to describe what in the Protocol is an Employer Risk
Event in respect of which the Contractor is entitled to compensation.

compensation
The recove1y or payment of money for work done or time taken up whether by way of
valuation, loss and/or expense or damages.

completion date
See contract completion date.

concurrency
See the guidance to Core Principle 10 in Pait B.

concurrent delay
See concmTency.

constructive acceleration
Acceleration following failme by the CA to recognise that the Contractor has
encountered Employer Delay for which it is entitled to an EOT and which failme
required the Contractor to accelerate its progress in order to complete the works by
the prevailing contract completion date. This situation may be brought about by the
Employer's denial of a valid request for an EOT or by the CA's late granting of an
EOT. This is rarely recognised under English law.

Contract Administrator (CA)

The person responsible for administration of the contract, including ce1tifying what
extensions of time are due, or what additional costs or loss and expense is to be
compensated. Depending on the foim of contract the person may be refeITed to by
such te1ms as Employer's Agent, Employer's Representative, Contract Administrator,
Project Manager or Supe1vising Officer or be specified as a pa1ticular professional,
such as the Architect or the Engineer. The contract administrator may be one of the
Employer's employees or the Employer itself.

contract completion date

The date by which the Contractor is contractually obliged to complete the works,
taking account of the award of any EOTs. As well as being an overall date for
completion, the contract completion date may be the date for completion of a section
of the works or a milestone date. The expression 'completion date' is sometime used
by Contractors to describe the date when they plan to complete the works (which may
be earlier than the contract completion date). The Protocol avoids this confusion by
using the expression 'contract completion date'.

Contractor
The patty responsible for canying out the works is generally refeITed to as the
'Contractor'. The Protocol is applicable to sub-contracts as well as main contracts, so
when it is being applied to a sub-contract, it is the sub-contractor that is being refeITed
to as the 'Contractor' in the Protocol.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 61

Contractor Delay
Expression commonly used to describe any delay caused by a Contractor Risk Event.
The Protocol distinguishes between: Contractor Delay to Progress which is a delay
which will merely cause delay to the Contractor's progress without causing a contract
completion date not to be met; and Contractor Delay to Completion which is a delay
which will cause a contract completion date not to be met.

Contractor Delay to Completion

See Contractor Delay.

Contractor Delay to Progress

See Contractor Delay.

Contractor Risk Event

An event or cause of delay or dismption which under the contract is at the risk and
responsibility of the Contractor.

Contractor's planned completion date

The date shown on the Contractor's programme as being the date when the Contractor
plans to complete the works under the contract.

critical delay
See critical path.

critical path
The longest sequence of activities through a project network from strut to finish, the
sum of whose durations deten nines the overall project duration. There may be more
than one critical path depending on workflow logic. A delay to progress of any
activity on the critical path will, without acceleration or re-sequencing, cause the
overall project duration to be extended, and is therefore refened to as a 'critical
delay'.

critical path analysis (CPA)

The process of analysing the critical and near critical activities in a CPM programme
to manage progress, balance resource allocations and asce1tain delays or acceleration
to the date for completion or the completion date of the works, a section or a
milestone.

critical path method (CPM)

The methodology or management technique that, through the use of calculation rnles
(usually automatically caiTied out by prograinming softwai·e), detennines the critical
path and calculates float.

culpable delay
Expression sometimes used to describe what the Protocol calls Contractor Delay.

date for completion

The date by which the contractor is expected to complete the works, which may be
eai·lier or later than the contract completion date.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 62

delay event
An event or cause of delay, which may be either an Employer Risk Event or a
Contractor Risk Event.

Delay to Completion
In common usage, this expression may mean either delay to the date when the
contractor planned to complete its works, or a delay to the contract completion date.
The Protocol uses the expressions Employer Delay to Completion and Contractor
Delay to Completion, both of which mean delay to a contract completion date - see
their definitions.

Delay to Progress
In the Protocol, this means a delay which will merely cause delay to the Contractor 's
progress without causing a contract completion date not to be met. It is either an
Employer Delay to Progress or a Contractor Delay to Progress.

disruption
See paragraph 5 in Pa11 A and the guidance to Core Principle 18 in Pa11 B.

disruption event
An event or cause of disrnption.

duration
Duration is the length of time needed to complete an activity. The time period can be
detennined inductively, by detennining the staii and finish date of an activity or
deductively by calculation from the time necessaiy to expend the resources applied to
the activity.

Employer
The Employer is the paiiy under the contract who agrees to pay for the works. In
some of the standard fonns, the pruiy who agrees to pay for the works is refeITed to as
the Developer, the Owner, the Client or the Authority. The Protocol is applicable to
sub-contracts as well as main contracts, so when it is being applied to a sub-contract,
it is the main contractor that is being refeITed to as the Employer in the Protocol.

Employer Delay
Expression commonly used to describe any delay caused by an Employer Risk Event.
The Protocol distinguishes between: Employer Delay to Progress which is a delay
which will merely cause delay to the Contractor's progress without causing a contract
completion date not to be met; and Employer Delay to Completion which is a delay
which will cause a contract completion date not to be met.

Employer Delay to Completion

See Employer Delay.

Employer Delay to Progress

See Employer Delay.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 63

Employer Risk Event
An event or cause of delay or dismption which under the contract is at the risk and
responsibility of the Employer.

excusable delay
Expression sometimes used to describe what in the Protocol is an Employer Delay in
respect of which the Contractor is entitled to an EOT.

extension of time (EOT)

Additional time granted to the Contractor to provide an extended contractual time
period or date by which work is to be, or should be completed and to relieve it from
liability for damages for delay (usually liquidated damages).

float
The time available for an activity in addition to its planned duration. See free float and
total float. Where the word 'float ' appears in the Protocol, it means positive not
negative float, unless expressly stated othe1w ise.

free float
The amount of time that an activity can be delayed beyond its early stru1/early finish
dates without delaying the eru·ly strut or eru·ly finish of any immediately following
activity.

Gantt chart
Bar chrut - named after the originator, Herny Gantt.

global claim
A global claim is one in which the Contractor seeks compensation for a group of
Employer Risk Events but does not or cannot demonstrate a direct link between the
loss incuned and the individual Employer Risk Events.

hammock
An activity representing the period from the strut of an activity to the completion of
another. Sometimes used as a way of summru·ising the duration of a number of
activities in a programme as one single duration. See also 'level of eff01t '.

hanging activity
An activity not linked to any preceding or successor activities. It is the same as
dangling activity.

head office overheads

Head office overheads ru·e the incidental costs of mnning the Contractor 's business as
a whole and include indirect costs which cannot be directly allocated to production, as
opposed to direct costs which ru·e the costs of production. Amongst other things, these
overheads may include such things as rent, rates, directors' salaries, pension fund
contributions and auditors' fees. In accountancy ten ns, head office overheads ru·e
generally refened to as administrative expenses, whereas the direct costs of
production are refened to as costs of sales.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 64

head office overheads & profit formulae
Hudson formula
Overheads & profit x contract sum x period of delay
100 contract period
Overheads & profit: head office overheads and profit percentage in tender.

Emden formula
Overheads & profit x contract sum x period of delay
100 contract period
Overheads & profit: head office overheads and profit percentage (actual).
Eichleay formula
Step 1: establish the head office overhead costs attributable to the contract as
follows: divide the final contract sum (excluding the claim for head office
overhead) by the total revenue for the contract period, then multiply the result
by the total head office overhead costs incmTed during the actual period of
perfo1mance of the contract.
Step 2: divide the figure resulting from Step 1 by the number of days of actual
perfo1mance of the contract, to establish a daily rate.
Step 3: Multiply the figure resulting from Step 2 by the number of days
compensable delay.
impact
The effect that a change has on an activity or the effect that a change to one activity
has on another activity.

impacted as-planned analysis

See paragraph 11.6(a) in Pait B.

key date
Expression sometimes used to describe a date by which an identifiable
accomplishment must be sta1t ed or finished. Examples include 'power on' , 'weather-
tight' or the strut or completion of phases of constmction or of phases or sections of
the contract, or completion of the works.

lag
Lag in a network diagram is the ininimum necessaiy lapse of time between the finish
of one activity and the finish of another overlapping activity. It may also be described
as the amount of time required between the sta1t or finish of a predecessor task and
the strut or finish of a successor task. (See logic links)

lead
The opposite of lag, but in practice having the same meaning. A preceding activity
may have a lag to a successor activity - from the perspective of the successor activity,
that is a lead.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 65

level of effort
A special activity type in programming software with unique qualities for duration.
The software calculates the duration of a level of eff01t activity based on dates from
its predecessor(s) and successor(s) rather than having a duration assigned to the
paiticular activity. They ai·e supposed to be used for suppo1t work, such as meetings,
which occur during the time:frame of the predecessors and successors. In practice,
they ai·e sometimes also used in the older context of 'hammocks' but ai·e not in fact a
hammock.

liquidated and ascertained damages, liquidated damages, LADs, LDs

A fixed sum, usually per week or per day, written into the contract as being payable
by the Contrnctor in the event that the works are not completed by the contract
completion date (original or extended).

logic links
The common logic links ai·e as follows:
Finish-to-start
The convention in Figure 1 shows the n01mal sequential relationship of one
activity following another. Activity B cannot strut until activity A has finished.

activity
A

,.
activity
B

Figure 1 - finish-to-stait relationship

Lagged finish-to-start
In Figure 2, below, 'd' implies a no1mal lag relationship between activities A
and B; that is, B cannot strut until ' d' days have elapsed after activity A has
finished. An example of this might be the curing time of concrete between
completion of the pour and the commencement of ftuther work on the
concrete.

activity d
A

'"
activity
B

Figure 2 - lagged finish-to-start relationship

SCL Delay and Disruption Protocol 2"" Edition: February 2017 66

 Start-to-start
In the relationship at Figure 3, below, activity B cannot strut until activity A
has sta1ted or perhaps, more accurately, activity B can strut at the same time as
activity A but not before it.

activity
A

,.
activity
B

Figure 3 - sta1t-to-stait relationship

Lagged start-to-start
In Figure 4, ' d' indicates a sta1t-to-stait relationship with the delay imposed
showing that activity B cannot sta1t until the period ' d' has elapsed after
activity A has staited. This convention provides one of the facilities to overlap
the execution of activities.

activity
A

d ~
activity
r
B

Figure 4 - lagged stait-to-sta1t relationship

Finish-to-finish
In the example at Figure 5 of a finish-to-finish relationship, activity B cannot
finish until activity A has finished. It implies that B can finish at the same time
as A, but not before it.

activity
A

,.
activity
B

Figure 5 - finish-to-finish relationship

SCL Delay and Disruption Protocol 2"" Edition: February 2017 67

 Lagged fmish-to-finish
In Figure 6 below, 'd' indicates a finish-to-finish relationship but with a delay,
i.e. activity B cannot finish until ' d ' days (or whatever time units have been
used) have elapsed after activity A has finished. This convention provides a
second means of overlapping timing of activities.

activity d
A

,
activity
B

Figure 6 - lagged finish-to-finish relationship

Lagged start and finish
There may be occasions where a lag is required both on the strut and finish of
related activities. This is achieved by the convention shown below at Figure 7,
that is, activity B cannot strut until ' d ' days after activity A has struted and
activity B cannot finish until 't' days after activity A has finished.

activity t
A

,,
d
-
r
activity
B

Figure 7 - lagged strut and finish relationship

Negative lag
The ruTangement or sequence in which the successor activity is allowed to
strut chronologically before the predecessor activity has been completed.
Below, activity B cannot strut until 4 days before A is planned to finish.

activity
A

-4

activity
B

Figure 8 - negative lag

SCL Delay and Disruption Protocol 2"" Edition: February 2017 68

method statement
A written description of the Contractor 's proposed manner of safely canying out the
works or parts thereof, setting out assumptions underlying the chosen method and the
reasoning behind the approach to the various phases of constrnction. It should include
details of key resources, including labour and plant.

milestone
A key event selected for its impo11ance in the project. Commonly used in relation to
progress, a milestone is often used to signify a key date.

mitigation
Mitigate means making less severe or less serious. In connection with Delay to
Progress or Delay to Completion, it means minimising the impact of the Risk Event.
In relation to dismption or inefficient working, it means minimising the dismption or
inefficiency. Failure to mitigate is commonly pleaded as a defence or pattial defence
to a claim for delay or dismption. Acceleration is a subset of mitigation.

must start I must finish

Most project management software allows the planner to specify that an activity must
sta1t or must finish on a specific date. Using the software in this way restricts the
ability of the programme to react dynamically to change on the project.

negative lag
See logic links above.

negative total float

Expression sometimes used to describe the time by which the duration of an activity
or path has to be reduced in order to pennit a limiting imposed date to be achieved.
Negative float only occurs when an activity on the critical path is behind programme.
It is a programming concept, the manifestation of which is, of course, delay.

non-compensable event
Expression sometimes used to describe what the Protocol calls a Contractor Risk
Event.

non-excusable delay
Expression sometimes used to describe what the Protocol calls Contractor Delay.

Path
An activity or an unbroken sequence of activities in a project network.

PERT
Programme Evaluation and Review Technique: a programming technique, similar to
critical path analysis, but whereby the probability of completing by the contract
completion date is detennined and monitored by way of a quantified risk assessment
based on optimistic, pessimistic and most likely activity durations.

planned completion date

See Contractor's planned completion date.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 69

Practical Completion
The completion of all the constmction work that has to be done, subject only to ve1y
minor items of work left incomplete. It is generally the date when the obligation to
insure passes from the Contractor to the Employer and the date from which the
defects liability period rnns. This is the te1m used under the Joint Contracts Tribunal
(JCT) family of contracts. In the International Federation of Consulting Engineers
(FIDIC) f01ms it is refeITed to as Substantial Completion.

precedence diagram
A multiple dependency, activity-on-node network in which a sequence an ow
represents one of four f01m s of precedence relationship, depending on the positioning
of the head and the tail of the sequence an ow. (See logic links)

programme
A tool that divides the works into a series of activities, each with a duration and logic
links to preceding and succeeding activities, foiming a network of activities. The
programme may be depicted in a number of different foims, including a Gantt or bar
chait, line-of-balance diagram, pure logic diagram, time-scaled logic diagram or as a
time-chainage diagram, depending on the nature of the works. Othe1w ise known as
the schedule. This te1m should not be confosed with 'program' , being the software
used to generate the programme.

programme narrative
A written explanation of the assumptions underlying the Accepted Programme (or the
Updated Programme), its key resources, sequencing restraints, critical path, risks,
exclusions/exceptions, and execution strategy.

prolongation
The extended duration of the works during which time-related costs are incuned as a
result of a delay.

resource
Expression used to describe any vai·iable capable of definition that is required for the
completion of an activity and may constrain the project. This may be a person, item of
equipment, service or material that is used in accomplishing a project task.

resource levelling
Expression used to describe the process of amending a schedule to reduce the
vai·iation between maximum and minimum values of resource requirements. The
process removes peaks, troughs and conflicts in resource demands by moving
activities within their eai·ly and late dates and taking up float. Most project planning
softwai·e offers an automated resource-levelling routine that will defer the
perfo1mance of a task within the imposed logical constraints until the resources
assigned to the tasks are available.

retrospective longest path analysis

See paragraph 11.6(e) in Pait B.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 70

r evised programme
A programme that demonstrates how Delay to Completion will be recovered. It
should utilise the latest Updated Programme as its staiting point. If accepted by the
CA, it replaces the foimer Accepted Programme as the tool for monitoring actual
progress.

Risk Event
See Employer Risk Event and Contractor Risk Event.

rolling wave programming

This is a method of planning where details of the programme ai·e elaborated as the
project proceeds. This method assumes that the detailed plan for specific activities in
the future will be developed closer to the time when those activities ai·e to be
executed.

schedule
Another name for the programme.

slack
Another name for total float.

sub-network
A group of activities or durations, logically linked. In the Protocol it is to be used to
illustrate the work flowing directly from an Employer Risk Event.

Substantial Completion
See Practical Completion.

time impact analysis

See paragraphs 4.12 and 11.6(b) in Pali B.

Time Risk Allowance

The additional time included by the Contractor within the allocated duration for an
activity in a programme to allow for risks which are its responsibility under the
contract. This is a contingency measure. The allowance can be zero.

time slice analysis

See paragraph 11.6(c) in Pait B.

total float
The amount of time that an activity may be delayed beyond its early sta1t/early finish
dates without delaying the contract completion date.

Updated Programme
In the Protocol the Updated Programme is the Accepted Programme updated with all
progress achieved and any revised logic or constraints. The final Updated Programme
should depict the as-built programme.
works
The scope of works to be completed by the Contractor under the contract.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 71

APPENDIXB
Record types and examples
The gu,idance to Core Principle 1 in Part B of the Protocol concerns record keeping.
This Appendix lists the typical records within each of the six categories described
(programme, progress, resource, costs, c01respondence and administration, and
contract and tender documents) and the principal reasons for keeping those records
to facilitate managing progress of the works and the resolution of delay and
disruption claims.

1. Programme records
1.1 These records set out the Contrnctor's plan for cany ing out the works and,
upon being updated, record the progress status of the works at the agreed
inte1v als and upon completion of the works. There are a number of sub-
categories of programme records as set out below.

1.2 Programmes: typically there are multiple programmes created and maintained
in relation to the works as follows:

(a) tender programmes;

(b) Contractor 's proposed programmes (submitted for the purposes of

acceptance as the Accepted Programme);

(c) Accepted Programme;

(d) Updated Programmes (the last of which should be an as-built
programme);
( e) proposed revised programmes submitted by the Contractor;

(f) detailed sho1t te1m look ahead programmes; and

(g) the Contractor's internal target programmes.

1.3 Also, there are supplemental detailed programmes or programming

info1mation in a suitable f01mat (such as CPM, line of balance or time location
analysis, tabular spreadsheet, or database) for:

(a) design;
(b) approvals (including the CA's approvals and public authority
approvals);

( c) procurement or manufacturing;
( d) delive1y;

( e) installation;

(f) constrnction of key aspects of the works; and

(g) testing and commissioning.

SCL Delay and Disruption Protocol 2"" Edition: February 2017 72

1.4 Explanat01y records: these explain in words, graphics, and spreadsheets key
considerations and assumptions underpinning the programmes (in pruiicular
the Accepted Programme). These records are used to establish the
Contractor's plan in detail and explain the activities in the programmes and
how their durations, logic and sequences were detennined. Examples include:
(a) programme nanative (setting out the assumptions underpinning the
Contractor's proposed programme including, at a minimum, key
resources, risks, sequencing restraints, and the critical path);
(b) nan ative of each Updated Programme or proposed revised programme
describing key changes to the sequence of the works or as-built data
from the last Updated Programme, and the critical path, along with
identification of any delay or disrnption events impacting progress;
(c) progress cmves for costs, resources and physical constrnction;
(d) tabular repo1i of milestone dates scheduled, forecast and actual;
(e) as-built database for each activity in the Accepted Programme (cross-
referenced to the progress records listed under catego1y 2 below);
(f) Building Info1mation Modelling (BIM) files where BIM is being
utilised for the works; and
(g) Mru·ked-up drawings and sketches showing the anticipated completion
and as-built dates for palis of the works.

2. Progress records
2.1 These records identify the progress of the works at a pruiicular time. There ru·e
a number of sub-categories of progress records as set out below.
2.2 Raw data records: these ru·e records which ought to be compiled on a regulru·
basis, n01mally daily for anything other than ve1y small projects, which record
how relevant palis of the works ru·e being can1ed out. They are at the heali of
establishing progress achieved before, dtrring, and after periods of delay or
disrnption. Below ru·e examples of these records:
(a) repo11s (for each major work area recording weather conditions,
manpower, deliveries of key materials, discove1y of adverse site
conditions, working hotrrs, major plant and equipment used, and work
activities unde1way);
(b) health, safety, environmental and/or secm1ty issues log;
(c) obstrnction data (recording obstrnctions or impediments to planned
progress at specific work fronts, clearly identifying the obstru ction
strut and fmish date, daily status at the work front, and the ru·ea of the
works and programme activities impacted);
(d) evidence of area handovers between contractors/others, cleru·ly
identifying which conti·actor/other pa1iy is in possession of each work
ru·ea at what time;

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 (e) geological mapping records;
(f) inspection requests/inspection repoits;
(g) site test records;
(h) testing and commissioning records (including ce1tificates);
(i) web cam footage; and
G) progress photographs (with date taken and if possible GPS
coordinates).
2.3 Compiled records: these are records prepared from the raw data records and
programme records. Compiled records set out a summruy and inte1pretation of
the raw data and the conclusions to be drawn. These include:
(a) detailed monthly progress rep01t s (which ru·e required as a minimum in
tenns of progress repo1ting);
(b) weekly progress repo1ts setting out the following:
(i) overview of progress in the main work ru·eas (including design
and procurement or manufacturing);
(ii) work status in each ru·ea of the works (covering the relevant
programme activities m1de1way);
(iii) illustrations of progress achieved (such as drawing of pile
locations with piles completed colour coded, level and section
of concrete cast, and so on); and
(iv) weather repo1ts issued from a reliable and relevant source
(preferably on site).
2.4 Procurement records: these establish the procurement of materials and
pe1manent equipment for the works and are required to demonstrate timely
provision of such materials and equipment to suppo1t the Accepted
Programme. Examples include:
(a) quotations from sub-contractors and suppliers;
(b) supplier contracts (including any amendments);
(c) shipment records; and
(d) delive1y records.

3. Resource records
3 .1 Resource records document the labour, materials and equipment utilised on the
works.
3 .2 Labour and equipment allocation records set out on a daily basis in which
areas specific labour and equipment worked and should coITespond to, at least
at a high level, the programme activities.

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3 .3 Equipment records should indicate if the equipment was active or inactive. If a
piece of equipment was inactive, the records should explain the reason, such
as undergoing routine maintenance. Where equipment is shared, this should be
noted, along with the available hours.
3.4 A log of major materials deliveries should also be kept, which identifies the
quantities of key materials available for use in the works.

4. Costs records
4.1 Costs records demonstrate the costs incmTed in canying out the works and
assist in substantiating amounts claimed in delay and dismption claims. These
records should be kept in the n01m al course of business and should be project
specific.
4.2 An accounting and cost allocation system for the works should be established
from the outset to split costs into the following headings as a minimum:

(a) management;

(b) labom ;

(c) plant;

(d) materials;

(e) sub-contractors; and

(f) non-staff overheads.

4.3 Costs records include:

(a) internal cost repo1ts;

(b) cost value reconciliation repo1ts (or similar);

(c) payroll records;

(d) time sheets;

(e) labom agreements;

(f) monthly payment applications;

(g) regarding sub-contractors:

(i) sub-contract agreements;

(ii) sub-contractor coITespondence;

(iii) claims made by sub-contractors and responses;

(iv) sub-contractor applications for payment; and

(v) details of all payments made to sub-contractors.

(h) regarding suppliers:

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 (i) supply agreements;
(ii) supplier conespondence;
(iii) claims made by suppliers and responses;
(iv) supplier invoices; and
(v) details of all payments made to suppliers.
(i) regarding the Contractor specifically, this includes the following head
office records:
(i) financial statements documenting annual head office general
and administrative costs and revenue;
(ii) business plans for generating profit;
(iii) records regarding tendering histo1y;
(iv) records regarding tendering opportunities; and
(v) internal meeting minutes to review future tendering
opportunities and staff availability.
4.4 Any audited accounts should be retained.
4.5 Copies of all invoices should be kept in an easily retrievable filing system
preferably with electronic copies.

5. Correspondence and administration records

5.1 This category refers to written communications regarding the management of
the works and contract administration, along with registers of material
communications. There are a number of sub-categories as set out below.
5.2 Letters I emails: this covers:
(a) letters and material emails between patties involved in the works; and
(b) other emails (including internal emails).
5.3 Contract management: this covers all notices or documents issued under the
contract (with the exception of letters/emails and claims related records).
Examples include the following:
(a) CA instructions and confomation of instt11ctions;
(b) early warning notices (and their close out);
(c) variations/change requests or proposals;
(d) bonds, insurance documents or guarantees; and
(e) all other documents issued under or required by the contt·act (other than
claims related records) .

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5.4 Technical: these records are the technical documentation submitted during the
course of the works, along with the final documentation submitted by the
Contractor. Technical records encompass the design, procurement and
manufacturing, and constrnction methods for the works. Technical
documentation is needed to demonstrate compliance by the Contractor with
the contract drawings and specifications and the Employer 's requirements.
They are also needed to document any changes. Examples include the
following:
(a) submission logs (including date of submission, date of response, status,
and follow up required) and the underlying documentation for:
(i) design drawings and calculations;
(ii) method statements;
(iii) sub-contractor approval requests;
(iv) material submittals;
(v) shop drawings; and
(vi) requests for info1mation and responses.
(b) approvals by the CA;
(c) agendas for and minutes of meetings (including requests for
amendments by the pruty(ies) not issuing the minutes). The types of
meetings for which there may be agendas and minutes include the
following:
(i) design;
(ii) constrnction progress;
(iii) programme review;
(iv) management;
(v) health & safety, environmental and security; and
(vi) quality;
(d) deficiency/non-compliance notices (and their close out);
(e) as-built drawings/documents; and
(f) operations and maintenance manuals.
5.5 Milestones: these ru·e written communications regarding milestones being
achieved and include:
(a) taking over ce1tificates/snagging lists;
(b) the Contractor 's request for a ce1tificate that the works are complete
(and the CA's response including a repo1t on any areas of disagreement

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 with the Contractor's request for a ce1tificate that the works are
complete); and
(c) the CA' s ce1t ificate that the works are complete.
5.6 Claims: Examples of these records are as follows:

(a) EOT claims/responses (including the CA's detenninations);

(b) claims for additional payment/responses (including the CA's
detenninations);
(c) notices of dissatisfaction with detenninations;

(d) refenals to fmt her stages of the dispute resolution procedure; and
(e) documents produced for the pmposes of fmther stages of the dispute
resolution procedure.
5.7 Delay and dismption claims should be supp01ted by proper paiticulars and
substantiation so that the CA can understand the claim and how any other
delay and dismption events might impact upon the time and costs being
claimed. This substantiation should include appropriate programming
analyses.

6. Contract and tender documents

6.1 The contract and tender documents ai·e key source documents for establishing
entitlement and the quantum of compensation for delay and disrnption events.
They establish the Contractor's requirements in canying out the works and the
assumed baseline in te1ms of time and costs for cai1ying out the works.

6.2 Contract documents typically include:

(a) contract agreement (which is the overarching document signed by the
pruties);
(b) con espondence relating to the contract negotiations (including any
letter of intent and letter of awai·d);

(c) conditions of contract (general conditions and special/prut iculru·

conditions);
(d) specifications and the Employer's requirements;
(e) drawings;

(f) schedule of prices or bills of quantities; and

(g) the Contractor's tender submission and any clru·ifications to that
submission.
6.3 The order of priority in case of conflict between the documents should be set
out in the contract agreement.

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6.4 Tender documents consist of documents produced or issued by both the
Employer and the Contractor pre-contract and include the following:
(a) instrnctions issued by the Employer to tenderers, including a draft copy
of the contract;
(b) any clarifications issued by the Employer regarding those instmctions
or the draft contract;
(c) submissions from all tenderers (technical and commercial
submissions), including the Contractor 's submission, and all
clarifications to those submissions;
(d) the Contractor's tender build-up (including all estimating info1mation);
(e) the Employer 's tender evaluation; and
(f) the Employer's calculations for any liquidated damages rates in the
contract.

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 'The object of the Society
is to promote the study and understanding of
construction law amongst all those involved
in the construction industry'

MEMBE RSHIP/ ADMINISTRATION ENQUIRIES

Jill Ward,
234 Ashby Road, Hinckley
Leics LE l O lSW
tel: 07730 474074
email: admin@scl.org.uk

website: www.scl.org.uk