Page 237 - Civil Engineering Project Management, Fourth Edition

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Variations and claims
17.10 Delay claims
The handling of delay claims often poses difficulties. Under the ICE conditions
Clause 44, the engineer can give an extension of time for the contract comple-
tion period if the contractor is caused unavoidable delay. The causes of delay
can be numerous, including failure of the employer to give access to the site, or
failure of the engineer to supply drawings as requested, or to approve the con-
tractor’s proposed methods of construction in reasonable time, etc. But the prin-
cipal causes of delay are often variation orders for extra work and the incidence
of unforeseen conditions (i.e. Clause 12 claims). In addition, Clause 44 permits
an extension of the contract period on account of ‘exceptional adverse weather
conditions’. Clause 44 sets out the procedure to be followed which requires the
contractor to give notice of the delay within 28 days of first experiencing the
cause of delay or ‘as soon thereafter as is reasonable’. The contractor has to give
‘full and detailed particulars in justification of the period of extension claimed’.
Although claims for delay are usually based on extra work ordered or caused
by unforeseen conditions, there can be other delays not associated with extra
work, such as when the engineer instructs the contractor to delay starting some
foundation construction because of the need to conduct foundation tests.
Although a delay of some kind can be caused to a contractor’s work, the delay
of itself does not necessarily entitle the contractor to an extension of the contract
period. The latter is a separate issue, which poses two particular difficulties:
• how to estimate the delay to the job as a whole caused by delay on just one
operation (or a group of operations) when several hundred other oper-
ations are required to complete the job;
• how to estimate what extra cost, if any, is caused by the delay, over and
above that which the contractor is paid for the extra work (if any) causing
the delay.
The answer to the first question is illuminated by considering how critical path
programming (mentioned in Section 14.5) would deal with a delay. Under that
programming, if an activity lying on the critical path has its duration extended,
then the delay to the whole job is likely to be equal to the activity delay. But,
if the activity does not lie on the critical path, its increased duration can either
have no effect on the time to complete the whole job, or it may create a new
critical path, which is longer by some amount than the previous critical path.
However, if it is possible to alter the sequence in which activities are undertaken,
a further critical path may emerge which may be no longer than the original one.
The engineer has to consider whether the contractor could reasonably
avoid delay to the whole project by undertaking other work available; hence,
mitigating the delay. Thus if the contract comprises the construction of a single
building for which the ground conditions turn out so unexpectedly bad that
piling of the foundations has to be added, this would justify an extension to
the contract period. The view cannot be taken that construction of the building
could be speeded up to compensate, because this could involve the contractor