13 January, 2020
In Part 1 of our Construction Disputes series, we identified that delay and quality issues are often the biggest problems for construction projects and the cause of most disputes. Delay may increase both the time for performance of the contract and the cost of performance for both the Employer, the Contractor or may be out of either party's control (such as the Great British weather).
This article will consider 1) tactics for handling delays and 2) how to minimise disputes.
Your approach as an Employer will differ depending on whether the delay is a critical delay or a noncritical delay i.e. whether the delay will impact on the critical path and affect the duration of the project and the completion date. We advise that you need to first consider which of these is at play.
Tactics to consider for non-critical delays:
Construction Litigation causes further disruption to timeframes and disincentivises contractors at a time when you need them on side the most. Disputes and delays can be minimised by:
It is crucial to have a properly prepared and realistic programme of works approved by the Contract Administrator/Employers Agent. All too often this document is not completed to the requisite standard or alternatively is not continually reviewed and updated to record actual progress, variations and milestones in order to lock in the completion date.
We understand that good record keeping requires an investment of time and costs, we would therefore recommend that at the outset you consider and agree the following*:
the type of records required;
Usually the Contract Administrator is responsible for the assessment of delay. You therefore need to arm the Contract Administrator with as much evidence as possible to support your position on liquidated damages and extensions of time. Many claims fail due to poor records.
Records should be kept of the following:
It is also important that any commentary in the records is contributed to or agreed by more than one party. This will give your delay experts the best opportunity accurately and persuasively to produce their delay analysis.
These tactics to minimise disputes apply equally to Employers and Contractors. We understand that delays happen, sometimes it is no one's fault, but without good records and a good consultancy team to support you, you will not be able to analyse the delay and deal with it appropriately.
*Delay and Disruption Protocol from the Society of Construction Law
For more information contact Lucy Bailey in our Dispute Resolution department via email or phone on 0333 207 0677. Alternatively send any question through to Forbes Solicitors via our online Contact Form.