Evolution of the SCL Delay and Disruption Protocol: A Comparison between the 2002 and 2017 Editions

The Society of Construction Law (SCL) Delay and Disruption Protocol has been an essential tool for practitioners in the construction industry since its initial release in 2002. The protocol was designed to provide guidance on the management and resolution of disputes related to delays and disruptions in construction projects. In 2017, the SCL released an updated version of the protocol, reflecting the changes and advancements in construction practices over the past 15 years. This article provides a detailed comparison between the 2002 and 2017 editions, highlighting the key differences and improvements.

1. Purpose and Scope

2002 Edition: The original SCL Delay and Disruption Protocol aimed to provide a framework for dealing with common issues that arise in delay and disruption claims. It was intended to be a practical guide for project managers, contractors, and consultants, offering a standard approach to the assessment and resolution of delays and disruptions.

2017 Edition: The 2017 edition maintains the original purpose but expands its scope. It focuses more on best practices for managing delay and disruption throughout the lifecycle of a construction project. The updated protocol aims to provide more detailed and flexible guidance, considering the complexities of modern construction projects.

2. Time Impact Analysis (TIA)

2002 Edition: The 2002 edition strongly promoted Time Impact Analysis (TIA) as the preferred method for assessing Extensions of Time (EOT). TIA involves analyzing the impact of delays on the project schedule by introducing the delay event into the updated project program. This method was recommended because of its prospective nature, allowing parties to assess the potential impact of delays as they occur.

2017 Edition: While TIA remains an important tool, the 2017 edition emphasizes that no single method is universally appropriate for all projects. The updated protocol recognizes that the selection of a delay analysis method should depend on the specific circumstances of the project. It encourages the use of the most appropriate method, whether prospective or retrospective, based on the nature of the delay and the available information.

3. Prospective vs. Retrospective Analysis

2002 Edition: The original protocol advocated the use of prospective analysis for assessing EOT claims. Prospective analysis involves assessing delays based on the information available at the time the delay event occurred, rather than analyzing the delay in hindsight. This approach was intended to provide a fair and objective assessment of delays as they were happening.

2017 Edition: The 2017 edition acknowledges the value of both prospective and retrospective analysis. It provides more flexibility, allowing parties to choose the most appropriate method based on the project’s needs and the nature of the delay. This change reflects the evolving understanding of delay analysis and the need for a more tailored approach.

4. Concurrency

2002 Edition: Concurrency, where two or more delay events occur simultaneously, was defined in the 2002 edition, but the guidance on how to handle concurrent delays was limited. The original protocol recognized concurrency as a significant issue but did not offer extensive recommendations on how to deal with it.

2017 Edition: The 2017 edition provides more detailed guidance on handling concurrent delays. It introduces the concept of the 'dominant cause' test, which can be used to determine which delay event should be considered the primary cause of the overall delay. The updated protocol also discusses the potential for apportioning delays where concurrency is present, offering more nuanced guidance for practitioners.

5. Disruption

2002 Edition: The original protocol provided basic guidance on assessing disruption claims, recognizing that disruption is a common issue in construction projects. However, the guidance was somewhat limited, focusing more on delays rather than disruption.

2017 Edition: The 2017 edition significantly expands on the guidance for disruption claims. It introduces methods like the 'measured mile' approach, which compares the productivity of an unaffected period of work with the affected period to quantify disruption. This method is widely regarded as one of the most accurate ways to assess disruption. The updated protocol’s expanded guidance on disruption reflects the increased focus on this issue in modern construction projects.

6. Record Keeping

2002 Edition: The importance of keeping detailed records was emphasized in the 2002 edition, but the guidance on what specific records to keep and how to maintain them was not particularly detailed. The protocol recognized that accurate record-keeping is crucial for supporting delay and disruption claims but left much of the practical advice to the discretion of the parties involved.

2017 Edition: The 2017 edition provides more detailed guidance on record-keeping, emphasizing the need for real-time data collection and the importance of maintaining accurate and comprehensive records throughout the project. The updated protocol highlights the types of records that should be kept, including progress reports, daily logs, and photographs, and stresses the role of technology in enhancing record-keeping practices.

7. Guidance on Float

2002 Edition: The 2002 edition recognized that float, the amount of time that a task can be delayed without affecting the overall project completion, belongs to the project rather than any individual party. It allowed for the use of float by both the contractor and the employer but did not provide detailed guidance on how float should be managed or allocated.

2017 Edition: The 2017 edition further clarifies the treatment of float, providing more detailed guidance on its allocation and use. It emphasizes that the contractor is generally entitled to use the float but must do so responsibly, ensuring that the use of float does not adversely affect the project’s overall timeline. The updated protocol also discusses the implications of float ownership in the context of delay analysis.

8. Use of Protocol

2002 Edition: The original protocol was intended as a flexible tool that could be adapted by the parties involved in a construction project. It was not meant to be a rigid set of rules but rather a guide that could be tailored to the specific needs of each project.

2017 Edition: The 2017 edition reaffirms the protocol’s flexible nature but stresses that it should not override the contractual agreements between the parties. The updated protocol encourages parties to incorporate its principles into their contracts but recognizes that the specific terms of the contract should take precedence. This approach ensures that the protocol serves as a practical guide while respecting the legal framework established by the contract.

9. Risk Management

2002 Edition: The 2002 edition had minimal focus on proactive risk management. While it acknowledged the importance of identifying and managing risks that could lead to delays and disruptions, it did not provide extensive guidance on how to do so.

2017 Edition: The 2017 edition places a greater emphasis on risk management, highlighting the importance of identifying potential delays and disruptions early in the project. It encourages parties to proactively manage risks and to incorporate risk management strategies into their project planning. This shift reflects the growing recognition of the importance of risk management in preventing and mitigating delays and disruptions.

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