Defending an Extension of Time Claim in Adjudication

Defending an Extension of Time Claim in Adjudication

The Kick Off

I get the phone call on Thursday afternoon at about 3:45 – it’s from a solicitor I worked with last year.

“Do I have time available to respond to an adjudication referral due in next Friday?”

He is representing an Employer who’s project is in delay and the Contractor has sent a referral to an adjudication. It is most likely that the Employer has been badly advised by his Contract Administrator.

The relief in his voice when I say yes is palpable – I was the seventh call on his tick list and his clock was ticking.

We quickly agree terms and the first bundle is sent off by a file transfer and another bundle arrives by carrier on Friday morning.

Responding to an incoming referral is always rushed – on paper I have 7 working days from Friday tomorrow to next Friday delivery time but in reality there will be only 5 because I will need at least 1 day for review and adjustment and another for assimilation and appendices.

This is why I never take on these assignments lightly – there goes my weekend.

Next Step

Read the referral – all of it. It will comprise many documents, calculations, bar charts, S curves, etc often repeated several time to pad out the bundles.

Collate a list of the arguments and summarise the matters addressed and form an opinion as the weight and validity of each case. Remember that the referring delay analyst only has to prove his point on the “balance of probabilities”

The key point is that although my client is paying me my duty is to advise the adjudicator as to the facts and validity of the referral.

If at this stage I consider that the incoming case is sound and likely to convince the adjudicator then I tell my client immediately as his best interests will be to make a quick settlement.

The Contract

Read the Contract and in particular:

The date of signature – has it been signed and dated after some of the events relied upon – there may be a waiver.

Notice provisions – in the unlikely event that these are clear and binding conditions precedent then they may be able to set aside some – if not all – of the events relied upon.

Are the events relied upon relevant events under the contract?

Defence Procedure

Impacted Events

The referral can be reduced to up to a dozen or so events that have allegedly delayed the project and the way that these have been presented depend entirely on the skill and experience of the delay analyst.

In this example I am assuming that I am reviewing the work of someone who knows what they are doing.

Even so it is almost certain that the analyst will have used some sort of method where the event has been impacted on the critical path of a programme.

So What Programme?

If I haven’t already got one I demand an electronic copy of the programme relied on by the claimant.

If I do not get one then I inform my client to tell the adjudicator that the claimant is withholding key information and his submission should be set aside. Note I cannot communicate directly with the adjudicator.

A delay analysis is easily defeated by challenging the baseline programme used.

Is it the correct baseline?

Has the delay analyst fiddled with the programme to suit his case?

Is the programme fundamentally flawed?

For instance I once defended an EoT claim for a sports hall that had a sprung floor. The baseline programme had a task for 20 days curing in ambient temperatures before laying the sprung floor. The curing task had an 8 hr day 5 day week calendar. When this was changed to a 24/7 calendar the critical path and the case collapsed.

Theoretical Impacted Events

An event impacted on a critical path will generate a theoretical delayed completion date. It always does.

But I cannot just point out this fact I have to show examples to the adjudicator.

The best way to do this is to point out anomalies from the analysts own report.

I look for the following:

Do any of the impacted events line up with the As Built dates – not just on the critical path but any sub critical tasks.

I have developed a quick and easy system of under laying the impacted delayed tasks with the start and finish dates of the analysts as built tasks. This will clearly and dramatically show the adjudicator the theoretical nature of the analysis. See my Linkedin Article “How to Compare the As Planned v As Built Programme on Asta PowerProject”

Compare dated photographs if you have them.

Look for any other inconsistencies in the referral. It is allowed to present rubbish if it the other sides rubbish.

This where I must rely on your client to provide factual details of the Contractor’s own delays. I don’t have time to carry out my own research but must assume that I am not being mislead.

If there are any such delays – including weather – then I carry out my own simple analysis showing cause and effect of the claimants culpable delays.

This is then interfaced with the claimed relevant events to compare the cause and effect of relevant events with culpable events.

The best possible outcome is if the claimants culpable events are the dominant delay as that obviates any extension of time.

The most likely outcome will be a degree of concurrency which will reduce the value of the loss and expense and increase the LAD’s which can be deducted.

I have to know the courts current thinking on concurrency as it changes with the frequency that a QC changes his socks.

Response

It is never good practice to be rude to the other analyst. It is always counter productive. If he is a complete plonker then his own work will show the evidence. Note – I say HE because I have yet to come up against a female delay analyst – I am sure there are many out there and I look forward to the experience.

My response is always clear and simple with a short but complete review of each of the events presented in the correct order.

Where there are blatant errors I point these out to the adjudicator and explain what is the most likely result when these are corrected.

Finally

Make sure that everything is submitted in time for a review and revision allowing sufficient time for appendices and bundling.

Check what your Counsel has been writing as it may contradict your opinions.

I then sit back and wait for the rejoinder where I will be accused of every misdemeanour short of riding a Pale horse.

It’s a strange way to earn a living but I love it


Islam Sabbar

Senior Program Controls Manager | PMO | Senior Planning Manager | Forensic Delay Analyst | Risk Management

7 年

Valuable information...Thanks

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Nice one again Mike. I've been there, so can understand what you meant by "rushed" and "pad out the bundles" ...Good read!

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Paul Mallon

Contracts Manager at a Contractor

7 年

Bravo!!!

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Ed Afkham

Program Manager at CAF - Parramatta Light Rail (PLR) Stage 1

7 年

Good read Mike

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