The improvement of delay analysis in the UK construction industry

Parry, Andrew (2015) The improvement of delay analysis in the UK construction industry. Doctoral thesis, Northumbria University.

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Abstract

Delays are a common feature of construction projects and frequently lead to disputes between the parties. In resolving these disputes it is essential to have a robust methodology for analysing delays. It is argued that current understanding of available delay analysis methodologies is inadequate and hindered by taxonomic confusion. There is a need for guidance on available delay analysis methodologies and an explanation of how these are implemented, and, as a result, models have been proposed that aid practitioners in the selection of a defendable and most appropriate delay analysis method under the specific circumstances of a project. This suggests an element of choice over the method to be selected: for example, the Society of Construction Law recommended the Time Impact Analysis methodology for undertaking a retrospective delay analysis. The question is whether this or any such methodology is necessarily appropriate.

There is general confusion over the selection of delay analysis methodologies. Here, it is proposed that this confusion can be reduced and delay analysis improved by an analysis of the latest research on the status of delay analysis in the UK, an analysis of common law guidance on methodology, an assessment of professional and research literature on delay analysis and research into what is being currently undertaken by experts in the field of delay analysis. This has been done using a mixed methods approach that included: (i) analysis of a questionnaire survey by the CIOB to understand the current state of time management in the UK construction industry; (ii) analysis of the industry guidance on delay analysis methodologies; (iii) a comprehensive review of related English Case Law; and (iv) an analysis of 27 case studies comprising programming expert reports that were presented as evidence in arbitrations. These multiple sources enabled the researcher to ascertain, in the case of each delay analysis methodology: (a) the dominant method actually used in disputes; (b) the details of its application; (c) the reasons for its selection; and (d) its level of accuracy and subsequent acceptability.

The research demonstrates that when time claims are accompanied by cost claims there is a dichotomy in the choice of appropriate methodology. There is a clear preference for prospective analysis of time issues, but a retrospective approach for claims that involve finance. At the same time, when a claim contains both elements, the courts appear to prefer a single approach, namely, the retrospective approach. This has resulted in the recommended method of undertaking delay analysis by the Society of Construction Law being not supported by English common law and ultimately to an increase in confusion within the Industry.

Given the courts’ fundamental opposition to a method that better accords with forensic logic, it is expedient to recommend a ‘best of the rest’ method for delay analysis rather than adopt a formulaic approach to selecting the appropriate delay analysis methodology. Case study reviews have shown the Windows Analysis methodology is widely used and this is also widely accepted as the most accurate and appropriate methodology, although less well known than other less appropriate delay analysis methodologies.

Apart from its theoretical significance, the research should improve construction practitioners’ understanding of delay analysis, and provide clarity on the evidence required to support a claim for an extension of time. It has the potential to reduce disputes over selection criteria and promote harmony between the construction and the legal professions over the appropriate method of resolving delay claims.

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