# Claims, EOT & Delay Analysis — Reference

## Table of Contents
1. [Claims Framework](#claims-framework)
2. [Extension of Time (EOT)](#eot)
3. [Delay Analysis Methods](#delay-analysis)
4. [Disruption Claims](#disruption)
5. [Prolongation Costs](#prolongation)
6. [Loss & Expense](#loss-expense)
7. [Global Claims](#global-claims)
8. [Concurrent Delay](#concurrent-delay)
9. [Acceleration](#acceleration)
10. [Notice Requirements Summary](#notices)

---

## Claims Framework {#claims-framework}

### Five-Step Claims Process

| Step | Action | Key Question |
|------|--------|-------------|
| 1. Entitlement | Identify contractual basis | Which clause gives the right to claim? |
| 2. Causation | Establish cause-and-effect | What event caused what impact? |
| 3. Notice | Verify compliance with notice requirements | Was notice given on time? |
| 4. Substantiation | Compile supporting evidence | What records prove the claim? |
| 5. Quantification | Calculate time and/or cost | How much time/money is the impact? |

### Entitlement — Common Contractual Bases

| Ground | FIDIC Clause | PSSCOC Clause | SIA Clause |
|--------|-------------|---------------|------------|
| Variations | 13.1-13.3 | 14 | 11 |
| Unforeseeable ground conditions | 4.12 | Depends on edition | — |
| Employer's risk events | 17/18 | Depends | — |
| Late access/possession | 8.4 / 8.5 | 20 | — |
| Suspension by Employer | 8.9 | — | — |
| Exceptionally adverse weather | 8.5 | 23 | 23 |
| Force majeure / exceptional events | 18 | FM clause | — |
| Changes in law | 13.6 | — | — |

### Evidence Required
- Contemporary records (daily reports, site diaries, progress photos)
- Correspondence (letters, emails, meeting minutes)
- Programme updates (baseline vs actual)
- Resource records (labour, plant, material deliveries)
- Cost records (invoices, payroll, plant hire agreements)
- Weather records (Met Service data)
- Instructions and drawings (RFIs, AI, VO, SI)

---

## Extension of Time (EOT) {#eot}

### EOT Entitlement Checklist
1. ✅ Is there a contractual right to EOT for this event?
2. ✅ Was the event beyond the Contractor's control?
3. ✅ Did the event actually cause delay to the **critical path**?
4. ✅ Was notice given within the required period?
5. ✅ Has the Contractor taken reasonable steps to mitigate?

### EOT vs Prolongation Costs
| | EOT | Prolongation Costs |
|---|-----|-------------------|
| What | Extension of contract completion date | Compensation for additional time-related costs |
| Effect | Removes exposure to liquidated damages | Reimburses site overhead, preliminaries, etc. |
| Entitlement | May exist without cost entitlement | Requires both delay + cost entitlement |
| Example | Adverse weather: EOT yes, cost usually no | Employer variation: EOT yes, cost yes |

### Prevention Principle
- If the Employer causes delay and there is **no EOT mechanism** for that type of delay → liquidated damages clause may become unenforceable
- Employer cannot benefit from their own act of prevention
- Solution: ensure EOT clause covers all employer-caused delays
- **Peak Construction v Wilson Homes [2001]**: If no EOT clause, time becomes "at large" and employer can only claim general damages for delay (must prove actual loss)

---

## Delay Analysis Methods {#delay-analysis}

### SCL Protocol Methods (Society of Construction Law)

| Method | Description | Prospective/Retrospective | Complexity |
|--------|-------------|--------------------------|------------|
| **As-Planned vs As-Built** | Compare planned programme with actual completion | Retrospective | Low |
| **Impacted As-Planned** | Add delay events to baseline programme; measure impact | Prospective/Retrospective | Medium |
| **Collapsed As-Built** | Remove delay events from as-built programme; see what completion would have been | Retrospective | High |
| **Time Impact Analysis (TIA)** | Insert delay events sequentially into updated programme at point of impact | Both | Highest |
| **Windows Analysis** | Divide project into time windows; analyse delay in each window | Retrospective | High |

### As-Planned vs As-Built
- Simplest method — compare two programmes
- **Weakness**: does not prove causation; only shows what happened vs what was planned
- Useful as starting point; insufficient alone for complex claims
- Does not account for concurrent delays

### Impacted As-Planned
- Insert delay events into the **baseline** programme
- Shows theoretical impact of each event on planned completion
- **Weakness**: relies on accuracy of baseline programme; does not reflect actual progress
- Best used: early in project, prospective analysis, when as-built data limited

### Collapsed As-Built
- Start from **actual** completion → subtract delay events → shows "but-for" completion date
- More reliable than impacted as-planned (based on reality)
- **Weakness**: subjective selection of which events to collapse; hindsight bias
- Best used: post-completion analysis

### Time Impact Analysis (TIA)
- **Gold standard** for delay analysis
- Insert each delay event at the point it occurred into an updated programme
- Shows cumulative and individual impact of each delay
- **Requirements**: regularly updated programmes, good contemporaneous records
- **Weakness**: data-intensive; requires detailed programme updates throughout project
- Preferred by tribunals and courts for complex disputes

### Windows Analysis
- Divide project timeline into discrete periods (windows)
- Analyse critical path and delay causes within each window
- Shows how critical path shifted over time
- Good for projects with multiple delay events over long duration
- **Weakness**: window selection can be disputed; boundary effects

### Choosing the Right Method
- **Simple delays, early stage**: As-planned vs as-built or impacted as-planned
- **Complex delays, post-completion**: TIA or collapsed as-built
- **Long projects, many events**: Windows analysis
- **Tribunal preference**: TIA generally preferred; but any properly applied method accepted

---

## Disruption Claims {#disruption}

### Disruption vs Delay
| | Delay | Disruption |
|---|-------|-----------|
| Effect | Late completion | Loss of productivity (may or may not cause delay) |
| Measurement | Time (days/weeks) | Cost (labour/plant inefficiency) |
| Critical path | Must affect critical path | Need not affect critical path |
| Example | Late drawings → cannot start activity | Working in congested conditions → slower output |

### Disruption Quantification Methods

| Method | Description | Reliability |
|--------|-------------|------------|
| **Measured Mile** | Compare productivity in disrupted vs undisrupted period on same project | Highest |
| **Earned Value Analysis** | Compare planned vs actual productivity using earned value metrics | High |
| **Industry Studies** (Leonard, MCAA) | Apply published productivity loss factors | Medium |
| **Total Cost** | Claim difference between planned and actual cost | Lowest (last resort) |

### Measured Mile
- Compare productivity of **same crew, same work** in disrupted vs undisrupted period
- Most persuasive method — uses project's own data
- Requires: identifiable undisrupted period on the same project
- **Weakness**: not always available if entire project was disrupted

---

## Prolongation Costs {#prolongation}

### Typical Prolongation Cost Heads
| Category | Examples |
|----------|---------|
| **Site overhead** | Site office rental, utilities, security, cleaning |
| **Staff costs** | Project manager, engineers, QS, supervisors, admin |
| **Plant & equipment** | Crane hire, scaffolding, hoisting equipment |
| **Insurance** | Extended CAR/EAR, third-party liability |
| **Bonds & guarantees** | Extended performance bond, advance payment guarantee |
| **Head office overhead** | Calculated using formula (Emden, Hudson, Eichleay) |
| **Finance charges** | Interest on capital tied up, bank charges |
| **Profit** | If contractually entitled (FIDIC: Cost + profit for some events) |

### Head Office Overhead Formulae

**Emden Formula** (UK/Singapore preferred):
```
HO overhead = (Contract Sum / Contract Period) × (HO overhead % / 100) × Delay Period
```

**Hudson Formula** (older, less favoured):
```
HO overhead = (HO overhead % in tender / 100) × (Contract Sum / Contract Period) × Delay Period
```

**Eichleay Formula** (US):
```
1. Allocable overhead = (Billings on contract / Total billings) × Total HO overhead
2. Daily rate = Allocable overhead / Days of performance
3. Claim = Daily rate × Days of delay
```

> **Singapore courts** generally prefer Emden; Hudson criticised because it uses tender allowance rather than actual overhead.

---

## Loss & Expense {#loss-expense}

### Common Heads of Claim
1. Prolongation costs (see above)
2. Disruption costs (productivity loss)
3. Acceleration costs (if instructed or constructively required)
4. Increased material/labour costs (if no price adjustment clause)
5. Finance charges / interest
6. Loss of profit (on delayed project or lost opportunities)
7. Additional preliminaries

### Proof Required
- **Direct loss**: flowing naturally from the breach — easier to prove
- **Consequential loss**: not flowing naturally — must show foreseeability (Hadley v Baxendale)
- Many construction contracts **exclude consequential loss** — check the contract

---

## Global Claims {#global-claims}

### What Is a Global Claim?
- Claim where multiple events caused loss, but claimant cannot (or does not) link specific events to specific losses
- Instead: total loss attributed to all events collectively

### Legal Position
- **Walter Lilly v Mackay [2012]**: Global claims are permissible BUT:
  - Must show at least some causal link between events and loss
  - Must show none of the events are the claimant's own fault
  - Tribunal can apportion as it sees fit
- **John Holland v Kvaerner [2004]** (Singapore): Global claims permitted where impractical to separate causes
- Generally disfavoured — should be last resort when separation genuinely impossible

---

## Concurrent Delay {#concurrent-delay}

### Definition
Two or more delay events occurring at the same time, where at least one is Employer risk and one is Contractor risk, both independently causing critical delay.

### Approaches by Jurisdiction

| Approach | Description | Jurisdiction |
|----------|-------------|-------------|
| **Dominant cause** | Identify the dominant cause of delay; that party bears responsibility | Less common now |
| **Apportionment** | Apportion delay between parties based on relative contribution | Singapore (preferred), some civil law |
| **Malmaison approach** | Contractor gets EOT but no prolongation costs | England & Wales (traditional) |
| **SCL Protocol** | If true concurrency, Contractor entitled to EOT but not costs | UK (influential, not binding) |

### Key Cases
- **Henry Boot v Malmaison [1999]**: Contractor entitled to EOT if employer delay event would have caused delay regardless of concurrent contractor delay
- **De Beers v Atos [2010]**: Applied Malmaison; EOT granted for concurrent delays
- **Saga Cruises v Fincantieri [2016]**: Burden on Contractor to demonstrate the employer event would have caused delay independently

### Singapore Position
- Courts have accepted **apportionment** of concurrent delays
- SO/Architect may grant partial EOT for employer-caused portion
- More flexible than strict English Malmaison approach

---

## Acceleration {#acceleration}

### Types
| Type | Description | Entitlement |
|------|-------------|-------------|
| **Instructed** | Employer directs Contractor to accelerate | Contractor entitled to costs |
| **Constructive** | Employer refuses valid EOT, forcing Contractor to accelerate to avoid LDs | Contractor may claim costs (harder to prove) |
| **Voluntary** | Contractor accelerates at own cost to recover own delays | No entitlement |

### Constructive Acceleration Requirements
1. Contractor was entitled to EOT
2. Contractor applied for EOT properly
3. EOT was wrongfully refused or not assessed
4. Contractor was facing LDs exposure
5. Contractor notified intent to accelerate
6. Contractor incurred additional costs to accelerate

---

## Notice Requirements Summary {#notices}

| Contract | Claim Notice | EOT Notice | Key Consequence |
|----------|-------------|------------|-----------------|
| FIDIC 2017 | 28 days from awareness (Cl. 20.2) | Under claim procedure | Time-barred |
| PSSCOC | 28 days from delay event (Cl. 23) | 28 days from delay event | May lose entitlement |
| SIA | Written notice required (Cl. 23) | Written notice required | May lose entitlement |
| NEC4 | Early warning (Cl. 15); compensation event notification (Cl. 61) | 8 weeks from awareness | Time-barred |

> **Golden rule**: When in doubt, give notice. A late or unnecessary notice is always better than no notice at all.
