Cover
Half Title
Title
Copyright
CONTENTS
Dedication
Preface to the fifth edition
Acknowledgments to the fifth edition
Editorial team biographies for the fifth edition
Table of acronyms
Table of case report references
Table of cases
Table of legislation
Table of contract clauses
Online Resources
List of figures
CHAPTER 1 INTRODUCTION AND TERMINOLOGY
Introduction
Terminology
The contractor
The developer
The contract administrator
The works
Programme and schedule
Critical path
Delay
Disruption
CHAPTER 2 THE RISK OF DEVELOPMENT
Introduction
Standard form provisions
Allocation of risk
Project planning and programming risk
Legal risk
Dispute risk
Design risk
Buildability risk
Biddability risk
Construction risk
Financial risk
Political risk
Insurable risk
Consumer Insurance (Disclosure and Representations) Act 2012
Tortious and statutory duties
Introduction
The importance of the statutory framework
Private nuisance
Utilities and statutory undertakers
Building control
Development control
CHAPTER 3 PROJECT PROCUREMENT
Introduction
CIOB Contract for Use with Complex Projects (CPC 2013)
Types of contract
Traditional “build-only” contracts
“Design and build” contracts
“Construction management” contracts
“Management contracting” contracts
Procurement arrangements
Guaranteed maximum price and target costs
Partnering and alliancing
Private finance initiative and public private partnership
CHAPTER 4 STANDARD FORM PROVISIONS FOR TIME AND COST
Introduction
Classification of change
Standard clauses of delay
Acts and/or omissions of the developer
Failure to pay
Circumstances beyond C’s control
Special circumstances
Force majeure
Errors and inconsistencies
Instructed variations and changes
Weather
Unforeseeable physical conditions
Access, ingress and egress
Postponement
Acts of third parties
Nominated subcontractors and suppliers
Delay in receiving instructions
Quality control
Strikes and civil commotion
Health and safety
Damage caused by carrying out the works
Catastrophes
Antiquities
Standard provisions for recovery of loss or expense
Introduction
Compensable events
Claims procedure
Compensation for disruption to progress
Cost and time management in the JCT Major Projects Contract and the CIOB Complex Projects Contract – a comparative analysis
MPC
CPC
Differences between MPC and CPC
CHAPTER 5 NOTICES, CLAIMS AND EARLY WARNINGS
Introduction
Early warnings
Notices
Nature of the notice
Form of notice
Constructive notice
Contents of notice
Period of notice
Second notices
Waiver of notice
Service of notice
Notice as a condition precedent
Extension of time conditional upon notice
Compensation conditional upon notice
CHAPTER 6 EXTENSIONS OF TIME AND TIME AT LARGE
Extensions of time
Introduction
The role of the contract administrator
Likely and actual delay to the completion date
Forming an opinion
Negotiating an award
The timing of an award
Reviewing an award
Developer’s time risk event occurring in period of culpable delay to the completion date
Time at large
Where there is no contract
Where there is no contract completion date under the contract
When completion is prevented
Where there is no power to extend time
Where the power to extend time is inoperable
Assessing a reasonable time to complete
Where there is no contract
Where there is no completion date under the contract
Where there is a stipulated contract period
CHAPTER 7 PLANNING AND PROGRAMMING
Introduction
Planning
Familiarisation
Outline plan
Strategic plan
Detailed plan
Programming
Varieties of programme
Introduction
Baseline and target programmes
The development programme
The tender programme
The working programme
The occupational programme
The as-built programme
Subcontractors’ programmes
Programme preparation
The critical path method
The contract period
Early completion
Milestones, key dates and sectional completion
Work content
Logical relationships
Activity durations
Calculating durations
Project planning method statements
Standard form requirements for programmes
The programme as a contract document
Specifying the programme requirements
Pricing the programme requirements
CHAPTER 8 PRESENTATION AND APPROVAL OF PROGRAMMES
Introduction
Bar chart
Flow chart
Line-of-balance chart
Time chainage diagram
Milestone programme and chart
Network diagrams
Arrow diagram
Precedence diagram
Cascade diagram
Standard form provisions
The initial programme
Programme approval, acceptance and rejection
CHAPTER 9 REVISING, UPDATING, MONITORING AND REPORTING
Introduction
Standard form provisions
Programme revision
Programme updating
Progress monitoring
Target CPM programme monitoring
Resource monitoring
Cash flow monitoring
Cost monitoring
Earned value monitoring
Milestone monitoring
Bar chart monitoring
Count the squares chart monitoring
Jagged line monitoring
Work content monitoring
Progress reporting
Visual aids
CHAPTER 10 PROJECT CONTROL
Introduction
Forecasting delay
The SCL Protocol
The change management supplements
The management information structure
Definitions
The programme
Electronic submittals
Progress records
Key dates
Roles and relationships
Managing the effect of change
First step – programme update
Second step – programme review for better information
Third step – recovery
Potential fourth step – event impacting
Potential fifth step – acceleration
Calculating time-related compensation
Identifying the cost of project controls
Redress for a failure to comply
CHAPTER 11 MITIGATION, RECOVERY AND ACCELERATION
Introduction
Standard form provisions
Constructive acceleration
Constructive acceleration as a legal doctrine
Initiation of grounds for construction acceleration
Conduct requiring acceleration
The mechanics of constructive acceleration
Methods of recovery and acceleration
Omissions
Changing the sequence of activities
Other logic changes
Using a different method of working
Increasing motivation
Increasing resources
Increasing the working time
Failure to recover or to accelerate
CHAPTER 12 VARIATION AND CHANGE
Introduction
Standard form provisions
The bill of quantities
Ambiguities, discrepancies and divergences
Omissions
Value engineering
Constructive change
Constructive change of quality
Constructive change of quantity
Consequential changes
CHAPTER 13 CONSTRUCTION RECORDS
Introduction
Record keeping
Progress records
Change control
Record retrieval
Electronic data exchange
Building Information Modelling
The acronym
Definition
What’s involved and how does it differ from “conventional” practice?
Levels of BIM maturity
What is arguably not BIM?
Perceived benefits of working in a BIM environment
Perceived barriers against BIM adoption
Collaboration
Legal, contractual and insurance issues
Use and management of information
Investment
Overcoming the barriers
Key documents
Case studies
Standard forms of contract
What does BIM mean for claims and disputes?
Retrieval of information
Communication of information
Case law
Conclusion
Independent information management
Standard form provisions
Presentation of evidence
Oral evidence
Documentary evidence
Database records
Computer generated evidence
Factors influencing the evidentiary strength of records
Getting at the facts of delay
Retrospective assembly of evidence
Manual sorting of evidence
Multi-volume collections
Single-volume tagged collections
Sorting evidence on databases
Discovery, disclosure and inspection
Disclosure of electronic documents
Disclosure of experts’ documents
Disclosure of privileged communications
CHAPTER 14 CAUSE AND EFFECT
Introduction
The three-part chain of causation
Primary causation – occurrence of a causal event
Voluntary or implied variations and other instructed changes
Expenditure of prime cost and provisional sums
Developer’s acts or omissions
Acts or omissions of third parties
Other occurrences
Secondary causation – a delay to progress of the works
Instructed variations
Suspension of the works
Failure to perform
Tertiary causation – delay to completion of the works
Proof of causation
Introduction
The terms of the contract
Completion is likely to be delayed
Completion is likely to be, or has been, delayed
Completion has been delayed
Whatever is fair and reasonable
The subject-matter of the proof
The factual materials available
Proportionality
Illustrating inference
Introduction
Cause and effect matrix
Scott Schedules
Graphs and histograms
Bar charts
As-planned versus as-built
Collapsing technique
Visualisations
Smoke and mirrors
CHAPTER 15 FORENSIC PROGRAMME ANALYSIS
Introduction
Preparing the materials
The planned programme
Correcting the planned programme
Updating the planned programme with progress
The as-built schedule
Analytical methods
As-planned versus as-built
As-planned updated versus as-planned updated
As-planned impacted
Collapsed as-built
Time impact analysis
Windows and watersheds
CHAPTER 16 FLOAT AND TIME CONTINGENCIES
Introduction
Float
Free float
Independent float
Interfering float
Total float
Negative float
Time contingencies
Standard form provisions
Who owns the float?
Potential ambiguities between free float and contingency
Ad hoc creation of total float
Interpretation of total float as contingency
Example 1 – absence of completion constraint on planned work
Example 2 – applied completion
Example 3 – non-driving link between applied constraints
Example 4 – applied fixed lag between unconstrained milestones
Example 5 – time contingency activity
Example 6 – contract duration bar
Total float belongs to D
Total float belongs to C
Total float belongs to the first to get to it
CHAPTER 17 DISRUPTION TO PROGRESS AND LOST PRODUCTIVITY
Introduction
Productivity
Resource-based planning
The importance of records
Conditions causing lost productivity
Staffing
Variations
Recovery and acceleration
Errors and omissions
Partial possession
Adverse weather
Loss of morale
Extended working hours
Reassignment of manpower
Dilution of supervision
Learning curve
Logistics and site restrictions
Ripple
Trade stacking
The analysis of lost productivity
A worked example
Planned versus actual
Industry productivity norms versus actual
Historic versus actual
Benchmark data versus actual
Actual impacted versus actual unimpacted
The basic approach
Modified measured mile approach
Accounting for the effects of separate events
Judicial consideration of the measured mile approach
Expert opinion
CHAPTER 18 CONCURRENCY, PARALLELISM AND PACING
Concurrency
Introduction
The parties
Entitlement
Distinguishing a delay to progress from a delay to completion
Distinguishing primary, secondary and tertiary causation
Distinguishing concurrent and parallel delays
Distinguishing concurrent and sequential delays
Distinguishing concurrent and pacing delays to progress
Distinguishing the timing of primary cases
Legal concepts of relief and compensation
Distinguishing delay and financial loss
Concurrency and delay to progress
Concurrent delays to progress
Sequential delays to progress
Parallel delays to progress
Concurrency and extensions of time
Concurrent delays to completion
Sequential causes of delay to completion
C must pay liquidated damages for all the delay to completion, if it cannot show for which part, if any, C is not responsible
D is not entitled to any liquidated damages at all, because it is, at least in part, responsible
C must pay all the liquidated damages, unless it can show for which part of the delay to completion D was responsible
D is not entitled to any liquidated damages at all unless it can show for which part of the delay to completion C is responsible
Parallel cause of delay to completion
Concurrency and prolongation
Concurrent causes of prolongation
Sequential causes of prolongation
Parallel cause of prolongation
Concurrency and pacing
CHAPTER 19 TOTAL TIME, TOTAL LOSS AND GLOBAL CLAIMS
Introduction
Total time claim
Defence to a total time claim
Total loss claim
Defence to a total loss claim
Global claims
Defence to a global claim
CHAPTER 20 APPORTIONMENT
Introduction
Apportioning delay to completion
Apportioning loss and/or expense
Methods of apportionment of loss or expense
The tortious solution
The burden of proof approach
The Devlin approach
The dominant cause approach
Jury verdict approach
The modified “global claim” approach
The “A/B estimates” approach
The “delta estimates” approach
The modified “total cost” approach
The “City Inn” approach
The net effect approach
CHAPTER 21 DAMAGES
Introduction
Entitlement to compensation
Potential heads of claim
Direct labour costs
Non-productive overtime
Staff costs
Management costs
Goods and materials
Plant and equipment
Loss of productivity
Temporary works
Preliminaries
Head office costs
Insurances
Financing costs
Profit on costs
Loss of future profits
Unabsorbed overheads
Formula adjustments
1. The contractor has actually suffered loss, or expense
2. The loss or expense has not been recovered elsewhere
3. The loss or expense incurred during the period of delay has remained unabsorbed
4. It is impossible, or unreasonably burdensome, to calculate the loss or expense without resorting to a “formula” approach
The Eichleay formula
The Hudson formula
The Emden formula
Other formulae
Quantum meruit
Developer’s damages
Liquidated damages
Standard form provisions
An exclusive remedy
Penalties
Failure to quantify
Quantifying predictive loss
Exclusion clauses
CHAPTER 22 SETTLEMENTS AND DISPUTE RESOLUTION
Introduction
Costs
Claim preparation
In-house
Claims consultants
Experts
Settlement
Duress
Misrepresentation and fraud
Dispute resolution
Non-binding
Mediation
Conciliation
Non-binding or final and binding
Expert determination
Adjudication
Final and binding
Arbitration
Litigation
Statements of case
Claim
Defence
Counterclaim
Reply and defence to counterclaim
Amendment of statements of case
Request for further information
Striking out statements of case
CHAPTER 23 ADJUDICATION IN THE UNITED KINGDOM
Introduction
Update on adjudication in the United Kingdom
Limitation periods
Complex decisions and human rights aspects
Costs and interest
Definition of a construction contract
Sequential adjudications and single disputes
Complex decisions and human rights aspects
Costs and interest
Definition of a construction contract
Residential occupiers
Sequential adjudications and single disputes
Recovering adjudication costs
CHAPTER 24 DISPUTE BOARDS
Introduction
Dispute boards in context
The advantages of dispute boards
Standing or ad hoc dispute boards
DRBs, DABs and CDBs
Dispute board rules
Independence of the dispute board members
Dispute board operations
Enforcement of dispute board decisions
Referral to a dispute board prior to arbitration
Costs of dispute boards
National and international developments
CHAPTER 25 MANDATORY LAWS IN INTERNATIONAL CONSTRUCTION CONTRACTS
Introduction
Private international law
Time-bar clauses
Liquidated damages
Taking-over (practical completion)
Decennial liability
APPENDIX 1 GLOSSARY OF TERMS AND DEFINITIONS
APPENDIX 2 TYPES OF DOCUMENT
APPENDIX 3 THE SOCIETY OF CONSTRUCTION LAW DELAY AND DISRUPTION PROTOCOL: A RETROSPECTIVE ANALYSIS
APPENDIX 4 SELECTING THE APPROPRIATE DELAY ANALYSIS METHODOLOGY: A DECISIONMAKING MODEL FOR FACILITATING THE PROCESS
Index