Delay Analysis and the Wave-Particle Duality of Light with Ian Thorpe

I remember learning in high school science that light sometimes behaves like a wave and other times behaves like a particle.? Physicists have come to accept this despite the apparent contradictions it presents.? It is just a reflection of the inherent complexity of light.

I’ve been analysing delays in construction projects for well over three decades now.? When I started out there were arguments about which method of delay analysis was correct.? In particular, there were arguments about whether the “prospective” or “retrospective” method of assessing delay was right to resolve a dispute.? You might think that the passage of time would provide definitive answers to these questions, but the intervening years between the late eighties and now don’t seem to have brought any greater clarity on the question.?

Proponents of both methods can still produce convincing arguments about why their method is correct and the other method is wrong – especially why the other method is wrong.? Some courts have found in favour of one method or the other, and some courts have found that either method can be used.

In addition, in some circumstances the use of one method or another can have a significant impact on the magnitude of delay attributed to an event.? It can matter which method is used.

Some arguments made against the “prospective” method are:

1.????? It can lead to discontinuities in the “critical path”.

2.????? It can lead to delays being added together that are not on the same path.

3.????? It relies on programs which may be inaccurate.

4.????? It requires the assessor to ignore known facts.

Some arguments made against the “retrospective” method are:

1.????? It can lead to a situation where one says that the assessment for a given claim was right but is now wrong.

2.????? It takes away the certainty of contemporaneous assessment, which seems at odds with the contractual time limit for assessment in many contracts – neither party can know what the entitlement to EOT is until the works are complete.

3.????? Many contracts have no express provision to re-visit delay claims.

4.????? It appears at odds with the fact that the parties’ actions, such as acceleration measures, are based on what they know at the time.

All of these arguments have some merit.? So where does this leave us?? We can’t throw our hands in the air and declare that there is no way to assess delays to a project.?

Instead, perhaps, we can acknowledge that, like the wave and particle models of light, neither method of analysis is perfect, but both have merit.? Which method is the better method to use will, as ever, depend on factors such as:

1.????? The terms of the contract, especially the extension of time clause (assuming it’s a dispute about extension of time).

2.????? The factual circumstances.

3.????? The available information.

Bearing this in mind can go a long way to identifying the best method of delay analysis for a particular dispute.