A well
attended meeting at the Reigate Manor Hotel assembled to hear two topical
speakers give an address on a topical subject. Thanks to the wide-ranging brief
given to the speakers by our Chairman, the address covered a great deal of
ground and was supported in detail by an ‘Acrobat’ presentation. It would be
impossible in the space available to me to report in detail, and the following
is little more than a list of headings. Readers who wish to explore the subject
in more depth may take advantage of the very informative web site at http://www.keane-associates.com/. It is also possible to obtain the ‘Acrobat’
pdf files. mailto:afc@keane-associates.com
Anthony
Caletka and John Keane are respectively Managing Director and Director of Keane Associates, whose
assignments include many major projects in various sectors of the construction
industry. Their fields of expertise
include project management, CPM
planning, forensic delay
analysis, litigation support and due diligence auditing. Their address to the meeting was given in
the following sections.
Delay
Identification/Measurement. Dr Keane discussed planning con-siderations, both pro-active
and forensic, and drew attention to the development of these techniques from a
rather theoretical paper exercise in the 1980's to the more practical
computer-dependent procedure of today. Various delay analysis techniques are
available including those with esoteric titles such as ‘impacted as-planned’
and ‘collapsed as-built’.
Contract
and Case Law.
Dr Keane reminded us of the purposes of extension-of-time clauses, which
he said were (a) to retain a defined time for completion, (b) to retain the
Employer’s right to liquidated and ascertained damages, and (c) to give the
Contractor relief from the strict duty to complete on time when delay was
caused by neutral events. He went on to discuss the question of whether a
notice of delay by the Contractor is a condition precedent to the award of an
extension of time. He referred to LB Merton -v- Stanley Hugh Leach (1985) in which it was
held that it was not, but he also drew attention to the Australian case of Turner -v- Austotel (1994) in which it was held that a
party to a contract cannot rely on the preventing conduct of the other party
where it failed to exercise a right which would have negated the effect of that
preventing conduct. Dr Keane touched on the liability of certifiers (of
extensions of time) quoting the memorable phrase ‘incompetent best’ from
Lubenham Fidelities. The case of John Barker Construction -v- London Portman Hotel (1996)
showed that failure to act fairly can lead to invalidation. A number of other
relevant case were listed on the ‘Acrobat’ presentation.
SCL
EOT Protocol At this point Mr Caletka continued the
presentation. He had been very much
involved in the development of the Extension of Time Protocol of the Society of
Construction Law and was able to describe its evolution in some detail. So far
more than 5,000 web-site visitors have visited the SCL web site and over 6,000 copies have been
issued or downloaded. (Price GBP 7.50) The Protocol is not promoted as a
universal panacea but there is no doubt that the wide interest in it has raised
awareness of programming and extension of time issues. Its main objectives are
to reduce the scope for disputes, particularly by resolving controversial
contract administration and legal issues and to explain best practice
techniques.
‘Burning
Issues’. Mr Caletka identified the three burning
issues in the programming/delay analysis world as (a) ownership of float,
(b) concurrent delay, and (c) right to early completion. He amplified these points and then
considered how the Protocol dealt
with them. Much of this was illustrated
on the screen by examples of programmes, which can be found on the ‘Acrobat’
pdf files. Mr Caletka did not hide from
us that concerns remain about the implementation of the Protocol with regard to
these issues and also from basically practical aspects of cost of
implementation, shortage of skills, need for redrafting of contracts and a
short-term risk of increasing areas of dispute.
Role
of the Expert Witness
In
conclusion the role of the expert planner in disputes was explained. The case was made for the availability of a practitioner
with a wide knowledge of current practice and skilled in, for example, CPM
software and calculating extension of time on live projects. The independence of the expert’s view on the
pleaded case was established, but the expert’s role in presenting his findings
and convincingly giving evidence drew some discussion from the floor.
Finally a
vote of thanks by Chairman Derek Ross for a very thoughtful, informative and
well presented address was approved with acclaim.