All the following articles have been published in previous issues of the Trett Digest. They remain the property of their respective authors and may not be reproduced without permission.
If you wish to receive future issues of the Trett Digest by post or email please click here.
The content of these articles is the opinion of the author and not necessarily that of trett consulting.
| Issue No: | 32 |
|---|---|
| Published: | Winter 2006 |
| Article No: | 3 |
| Author: | Brian Eagles |
| Title: | The SCL Protocol: A Challenge to Case Law? |
For a Contractor to receive an extension of time, many contracts require that he must demonstrate that he has been delayed such that he could not finish by the Date for Completion. Brian Eagles argues that the level of proof required is the same as in all civil-cases; that is, on the balance of probability, or to put it another way, the demonstration must be at the very minimum 51% convincing.
The SCL Protocol recognises four methods of analysis by which a Contractor can demonstrate an entitlement to an extension of time: the Planned versus As-Built; the Impacted As-Plan; the Collapsed As-Built; and the Time Impact Analysis. The Protocol also sets out the level of information required for each method of analysis. The Protocol also recommends the most representative in terms of demonstrating entitlement, based on the type of information that is available.
The difficulty occurs when these theoretical analyses meet reality. What I mean by this is that there are few contracts that follow the original planned sequence of work throughout the entire building process. Perhaps this is because I deal mostly with projects that are in delay, but some degree of rescheduling is commonplace in the construction industry. The SCL Protocol offers no guidance on how any changes to the planned programme should be made, whether as the result of a supplemental agreement, a Contractor's mitigation or an acceleration. This is a limitation of the Protocol since three, and possibly all, of the four specified methods make use of the planned programme in one form or another.
Recently, I undertook a retrospective Impacted As-Planned analysis for a client. As so often happens, the programme had been re-sequenced during the project so that the analysis using the original programme was unrepresentative of the whole building cycle. Consequently, my analysis was repeated from the date of the programme change and the remaining period of the contract was evaluated on the basis of the revised programme. I called this approach the Updated As-Planned Impacted method. I find this approach an extremely effective one for analysing delayas we move through the building process.
However, the engineer found that, because the Impacted As-Planned analysis had not been carried out precisely as set out in the SCL Protocol for the whole of the construction period, the analysis was void and was rejected in its entirety. The complaint was that the original programme had not been used for the entire analysis and I had deviated from the SCL Protocol. In my view, a reasonable analysis which adopted but adapted the methods described in the SCL Protocol had been unreasonably rejected.
It appears that the SCL Protocol had closed the mind of the engineer to any demonstration of cause and effect other than those described in it. The engineer had not taken account of the legal principle that the Contractor needs to demonstrate that, on the balance of probability, it was prevented from completing by the Date for Completion by delays that constitute Relevant Events under the contract. If it was able to do so, a Contractor is entitled to receive an Extension of Time. In effect the burden of proof had, in the mind of the engineer, been replaced by a failure to follow the guidelines of the Protocol.
It may be that this was just one rogue decision but it calls into focus the purpose of the SCL Protocol as a guidance document, not as a manual on the allowable methods of delay analysis. In the UK, we presently have a system of justice that is based upon case law, built up over centuries. To suggest, therefore, that the SCL Protocol somehow overrides and codifies English law, as is implied from this engineer’s decision, is wrong in my view.
In my opinion, the SCL Protocol has been elevated to a level of importance beyond which it has justification. Some of this prominence originates from the word ‘protocol’ in the title. The common usage of the word ‘protocol’ is an action plan to be followed but in the case of delay analysis, the protocol only addresses examples of the methods available, and whilst this is useful as a guide, it does not represent all methods of demonstrating cause and effect and should be employed accordingly.
Since this decision, I have been involved with several cases where a variety of methods of analysis have been utilised, both from the SCL Protocol and elsewhere. The results achieved have been mixed but all have been reasonable decisions in the light of the evidence presented. As I say, perhaps my earlier case was only one rogue decision but when I include updated programmes in my analyses, the reasons for deviating from the purity of the analysis set out in the SCL Protocol are now clearly explained in my reports.