APM webinar hosted by the Greater Bay Area Branch on 21 June 2023. Speakers: Dennis Wong and Anel Idriz The Greater Area Bay Branch invited Dennis Wong and Anel Idriz to share their professional project management experience on this Webinar- “Delay Analysis from a technical and legal perspective” on 21 June 2023. Dennis has a wide experience of various forms of commercial dispute resolution including mediation, arbitration, litigation, and adjudication. In particular, he specialises in resolving complex contractual and construction disputes. Anel's experience is diverse across the construction industry including private residential buildings, leisure, commercial office, large mixed‐use developments, hospitals, education, casinos, heavy civil engineering, highways, and railways. The webinar targeted to price an Insight into delay analysis and provide a legal update on extension of time/ liquidate damages. The speakers has covered: Introduction to Planning and Programming The Role of a Programming and Delay Expert Understanding Delay Analysis Accepted Methods of Delay Analysis Selecting a Method for the Analysis What Records are important to be maintained for a robust Analysis Latest cases on the extension of time / liquidated damages https://youtu.be/l1ChOBpoLwk https://www.apm.org.uk/news/delay-analysis-from-a-technical-and-legal-perspective-webinar/

1. Delay Analysis from a Technical & Legal Perspective
21 June 2023

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Senior Director, Ankura Consulting
Global Construction Disputes, Delay Expert
Anel is a Senior Director in the Global Construction Practice at Ankura.
He specialises in programming and forensic delay analysis for clients
within the Asia Pacific Region, advising on complex disputes as a result
of delay or disruption on construction and engineering projects.
Anel Idriz Hong Kong
+852 61899424
anel.idriz@ankura.com
Degree:
• MSc Construction Law, Arbitration and Adjudication
• BSc Construction Project Management
• NEC Accredited Project Manager
Years of Experience:
• 15 Years
Professional Field:
• Member of Chartered Institute of Arbitrators, MCIArb
• Member of Chartered Institute of Building, MCIOB
• Member of Association of Project Managers, MAPM
• LLM Arbitration & Adjudication
• Practicing Associate of The Academy of Experts, AMAE
• Society of Construction Law HK – Chairman 2021
• Chartered Institute of Building Mentor

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Independent recognition
• Ranked as a Global Elite Thought Leader by Who's Who Legal for
Construction 2023. Dennis Wong is "one of the best construction lawyers
in Hong Kong, thanks to his deep knowledge and experience in
construction disputes".
• Chambers and Partners 2022: “Dennis Wong has a great eye for detail and
delivers clear and precise legal solutions to difficult legal issues.”
Dennis Wong
Partner, Cocking & Co
• Commercial dispute resolution: mediation,
arbitration, litigation and adjudication
• Specializes in resolving complex contractual
and construction disputes

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1. Introduction to Planning and Programming
2. The Role of a Programming and Delay Expert
3. Understanding Delay Analysis
4. Accepted Methods of Delay Analysis
5. Selecting a Method for the Analysis
6. What Records are important to be maintained for a
robust Analysis
7. Q&A Session
Cocking & Co / Ankura - Session Overview

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INTRODUCTION TO
PLANNING & PROGRAMMING

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Planning Vs Programming
Planning:
• Conceptualising HOW things are to be
done
• Use construction drawings and method
statements
• The where, why, whom, what, and
when will follow naturally
Programming:
• Scheduling when in time things are to
be done
“You can plan without
programming, but you
cannot programme
without planning”
Mr Alasdair Maclennan, Regional
Chairman, ICE Glasgow

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Adequate planning leads to the correct completion of work
Inadequate planning leads to frustration towards the end
of the project & poor project performance
(Project over run & Increased Costs)
Project Start
Project
End

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HKSAR GCC for Civil Engineering Works (1999 Edition)
Extension of Time for Completion (extracts)
50(1)(b) If in the opinion of the Engineer the cause of the delay is:
(i) inclement weather
(ii) the hoisting of tropical cyclone warning signal No. 8 or above, or a Black Rainstorm
Warning
(iii) an instruction issued by the Engineer under Clause 5
(iv) a variation ordered under Clause 60
(v) a substantial increase in the quantity of any item of work included in the Contract
(vi) the Contractor not being given possession of the Site
(vii)a disturbance to the progress of the Works for which the Employer or the Engineer
or a Specialist Contractor is responsible ….
then the Engineer shall within a reasonable time consider whether the Contractor is
fairly entitled to an extension of time for the completion of the Works or any Section
thereof.

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Liquidated Damages for Delay
52. (1) If the Contractor fails to complete the Works…then the Employer shall
be entitled to recover from the Contractor liquidated damages, and may
but shall not be bound to deduct such damages either in whole or in part, in
accordance with the provisions of Clause 83. The payment of such damages
shall not relieve the Contractor from his obligations to complete the
Works or from any other of his obligations under the Contract.
…
(3) The period for which liquidated damages shall be calculated shall be the
number of days from the prescribed date for completion or any extension
thereof of the Works or the relevant Section until and including the certified
date of completion.
HKSAR GCC for Civil Engineering Works (1999 Edition)

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ROLE OF PROGRAMMING &
DELAY EXPERT & CHALLENGES

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o The delay expert must assist the tribunal in a non-bias manner to understand
‘what happened when, and why’.
o From an analysis of the as-built and baseline schedules, the expert must help
the tribunal to understand the schedule of works and the tasks comprising the
as-built critical path.
The Role of a Programming and Delay Expert
The Challenge for Programming and Delay Expert
o Cut through the jargon and make sense of it all
o Simple reports that assist, rather than confuse
o Translate dark art mystique into common sense
o Produce powerful illustrative presentations
o Clear, credible, factual, uncomplicated andpersuasive
o Provide Clarity from Confusion
o Provide a qualified opinion.

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UNDERSTANDING DELAY ANALYSIS

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• Delay analysis techniques allow the analyst to:
• Distinguish critical delays from non-critical delays and calculate their
impact on the project duration.
• Identify concurrent delays that did or would have delayed the project
completion.
• Differentiate between concurrent and pacing delays.
• Identify the causal link i.e. causation
Understanding Delay Analysis
The Causal Link

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Time “at Large”
• In practice, Courts reluctant to put time “at large”
• Courts lean in favour of operable EOT provisions
• Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No. 2)
EWHC 447 (TCC) (6 March 2007)

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Multiplex Constructions (UK) Ltd v Honeywell Control
Systems Ltd (No. 2) EWHC 4a47 (TCC) (6 March 2007)
• Construction of new national stadium at Wembley
• Multiplex sub-contracted design, supply and installation of electronic system
to Honeywell
• Multiplex issued to Honeywell three revised programmes
• Adjudicator awarded prolongation costs to Honeywell and held that time had
been put “at large”

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Multiplex Constructions (UK) Ltd v Honeywell Control
Systems Ltd (No. 2) EWHC 4a47 (TCC) (6 March 2007)
• Under the Sub-Contract:
• Contractor may issue any reasonable direction (including ordering
variation)
• EOT will be granted if “relevant event” was likely to cause delay to
completion
• However, list of “relevant events” do not include variation, but referred to
“delay caused by any act of prevention or default by the contractor”

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Three Propositions
“From this review of authority I derive three propositions.
(i) Actions by the employer which are perfectly legitimate under a
construction contract may still be characterised as prevention, if those
actions cause delay beyond the contractual completion date.
(ii) Acts of prevention by an employer do not set time at large, if the contract
provides for extension of time in respect of those events.
(iii) In so far as the extension of time clause is ambiguous, it should be
construed in favour of the contractor.”

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Court’s decision
• Time had not been put at large
• If a direction which constitutes a variation leads to completion on a later
date, such a direction constitutes “an act of prevention”
• “If a variation instruction affects the date…by a small period, one may say
that this is a hindrance; it does not in any sense make the installation of the
electronic systems impossible. On the other hand, that matter does prevent
completion on the due date and it should be characterised as “prevention”

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ACCEPTED METHODS OF DELAY ANALYSIS

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Accepted Methods of Delay Analysis
Method of Analysis Analysis Type
Critical Path
Determined
Delay Impact
Determined
Requires
Impacted As- Planned
Analysis
Cause & Effect Prospectively Prospectively
• Logic linked baseline programme
• A selection of delay events to be modelled.
Time Impact Analysis Cause & Effect Contemporaneously Prospectively
• Logic linked baseline programme
• Update programmes or progress information with
which to update the baseline programme
• A selection of delay events to be modelled.
Time Slice Windows
Analysis
Effect & Cause Contemporaneously Retrospectively
• Logic linked baseline programme
• Update programmes or progress information with
which to update the baseline programme.
As-Planned versus As-
Built Windows Analysis
Effect & Cause Contemporaneously Retrospectively
• Baseline programme
• As-built data.
Retrospective Longest
Path Analysis
Effect & Cause Retrospectively Retrospectively
• Baseline Programme
• As-built programme.
Collapsed As- Built
Analysis
Cause & Effect Retrospectively Retrospectively
• Logic linked as-built programme
• A selection of delay events to be modelled.
SCL Delay and Disruption Protocol 2nd Edition: February 2017

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Critical Path
Prospective
Forward looking
Theoretical
What might have
been critical
May not reflect
reality
Contemporaneous
At the time
Considers the
evolving nature of
a project
Identifies change
to the critical path
Justifies decisions
made in context
of progress
Retrospective
Backwards view
Based on as built
information
Does not consider
changes in
criticality
Misses what was
important at the
time
Critical Path Determined

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Analysis Type: ‘Cause and Effect’ or ‘Effect and Cause’
Programme
Update
Cause
Time Impact
Analysis
(Prospective)
Effect
(Theoretical)
Weaknesses in causal link Theoretical effect
Cause &
Effect
• Cause and Effect:
o Identify all causes of delay, see which of them identify additional entitlement
o If a cause is not identified at the outset, it will not be analysed
Planned and
As-Built Data (Factual)
Factual
Statements
Supporting
Documents
Evidence
Cause
Strong causal link grounded on facts
Effect &
Cause
Effect
• Effect and Cause:
o Identify the effect then research the cause
o Causes can be investigated in greater detail, if disputed

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Prospective or
Retrospective
analysis - When and
Why?
Fluor v Shanghai
Zhenhua Heavy
Industry Co [2018]
EWHC 1 (TCC)
• Fluor was engaged to construct 140 wind turbine
generators for the wind farm.
• Fluor subcontracted the fabrication of steel
foundation structures for the turbines to Shanghai
Zhenhua Heavy Industry Co (SZHIC).
• The works carried out by SZHIC were defective.
• As a result, Flour had to carry out lengthy inspection
and rectification works, leading to substantial delay
to the project.
• Fluor sued SZHIC for breach of contract. At a liability
hearing the TCC held materials supplied by SZHIC
were not fit for purpose.
• In a subsequent hearing on damages, there was
extensive debate about the correct approach to
delay analysis. The assessment of damages was
further complicated by additional defects, which led
to further delays.

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Prospective or Retrospective analysis- When and Why?
Fluor v Shanghai Zhenhua Heavy Industry Co [2018]
EWHC 1 (TCC)
• Sir Anthony-Edwards Stuart, having considered two expert delay reports,
rejected a straightforward prospective analysis of the loss.
• Paragraph 275 of the judgement highlighted the difference between
prospective and retrospective analysis;
“There has been an extensive debate about the correct approach to delay
analysis. Mr Morgan said, and I would accept, that a prospective analysis - in
other words considering the critical path at any particular point in time as viewed
by those on the ground at that time - does not necessarily produce the same
answer as an analysis carried out retrospectively. The former is the correct
approach when considering matters such as the award of an extension of time,
but that is not the exercise with which the court is concerned in this case. I agree
that some form of retrospective analysis is required"

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Prospective or Retrospective analysis - When and
Why? Fluor v Shanghai Zhenhua Heavy Industry Co
[2018] EWHC 1 (TCC)
• The court recognizes that prospective and retrospective delay analysis
may produce different result.
• The Court did not form a view as to whether prospective or retrospective
delay analysis is the “better” approach.
• Different analysis serves different purposes at different times.
• SCL Delay and Disruption Protocol (2 edition):-
Core principle 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.
• In practice, the approach may be determined by the terms in contract.

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Standard Form of Building Contract
Private Edition – Without Quantities (2006)
Clause 25.3 (1) “After receipt of the Contractor’s second notice the Architect
shall give an extension of time to the Contractor by fixing a later Completion
Date if he is satisfied that the completion of the Works or a Section is
being or is likely to be delayed beyond the Completion Date by the listed
event stated by the Contractor in his first and second notices to be the cause
of the delay.”

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Clause 25.3 (8) “The Architect shall finally decide the overall extension of time,
if any, that he considers the Contractor is entitled to under clause 25, whether
by reviewing any extension of time previously granted or otherwise, and
shall fix the Completion Date, which may be the same as but not earlier than
the Completion Date previously fixed, within 90 days after Substantial
Completion or such later date as may be agreed by the parties.”
Standard Form of Building Contract
Private Edition – Without Quantities (2006)

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SELECTING A METHOD FOR THE ANALYSIS

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‘DELAY is simply a MATTER of FACT’
‘the ANALYSIS of DELAY is merely COMMON SENSE’
• No one best way to analyse a project
• Formulate a balanced view of delay
• Objectively be ‘Fair and Reasonable’
• Important to form a balanced view
• Provide an objective opinion
• Read the Contract!
• Analysts enjoy the “rank the methods” game.
• There is no “best method” – there is only a best method for your specific
case, given the available facts and data.
Selecting a Method for the Analysis

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• Often pursued by contractors if they lack documentation to prove which
losses are directly caused by a specific delay
• Do not have the necessary resources or time to carry out a detailed delay
analysis
• The Courts are increasing lenient towards Global Claims.
Global Claims

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• Defendants in Walter Lilly had argued that a number of claims advanced by
Contractor consisted of “global” claims and were barred by authority
• Held: Nothing in principle “wrong” with global claims
Walter Lilly & Co Ltd v Mackay & Anor [2012] EWHC 1773 (TCC)

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1. Contractor does not have to show that it is impossible to prove cause and
effect
2. In the absence of contractual restrictions on global loss claims, Contractor
simply has to prove its case on balance of probabilities
3. Nothing in principle “wrong” with global claims. However, there are added
evidential difficulties for Contractor, i.e. need to establish that loss which it
has incurred would not have been incurred in any event
4. The fact that one or a series of events (which are risk or fault of Contractor)
caused or contributed to total or global loss does not necessarily mean that
Contractor can recover nothing
5. A Court will NOT usually allow global claims if actual costs attributable to
individual loss causing events can be readily and practically determined
Walter Lilly & Co Ltd v Mackay & Anor [2012] EWHC 1773 (TCC)

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WHAT RECORDS ARE IMPORTANT TO BE
MAINTAINED FOR A ROBUST ANALYSIS

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Why Records Are Important
• The basis for a factual analysis
• Difficult to argue against the facts
• Convincing in dispute resolution proceedings
• Records stay with the project when the site team move on.
• Quality documentation is better than quantity
• Minimize inconsistencies and conflicting positions on blame for problems in project records
What records are needed
Primary Records
The original source of actual progress
• Daily progress reports
• Equipment logs; piling, concrete pours etc.
• Delivery notes, particularly major equipment
• Completion certificates
• Photographs, drones or other recording technology
Secondary Records
Summaries based on primary records
• Monthly Progress Reports
• Meeting Minutes
• Correspondence
• Claim submission documents

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• Contract / Sub-contract documents (and contract backup documents)
• Programme Information (soft copies)
o Original Plans (Master Programme, Other early programmes as relevant)
o Updated Programmes (progressed, as-builts, etc.)
o Look ahead, monthly work plans, etc.
o Subcontractor Programmes or work plans, etc.
o T&C programmes
• Progress Information
o All Daily/Weekly/Monthly detailed Reports, Diaries, Photographs, all meeting minutes
etc
• Issued Change information
o Instructions, RFIs, TQs, STQs, etc
• Drawings:
o Including, for example, the tender design drawings, submitted drawings and approvals
for the subcontractors works.
• Inspection Records & Certificates
o All inspection records / emails and the Non-Compliant lists.
o Handover certificates including Temporary Occupation Certificate.
• Claim document
o Notices of Claims, Claim information, Responses, etc.
• Photographs
• Any other documents you consider relevant to the claims
For Delay Analysis, some of the most important documents are likely to be
needed for proof of fact and evidence include:

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Q&A SESSION