作者： Ian McIntyre
In my opinion, the assessment of extensions of
time in relation to the EOT Claims should firstly consider the criteria for
entitlement under the underlying EPC Contract.
With respect to the delay analysis method for
the purpose of assessment of extensions of time under an EPC Contract, I have encountered
many procedures that have been used to analyse the effects of delays on programs
of work. It is frequently overlooked that analysis methods need to be
‘credible’ from a common sense as well as a planning and legal perspective.
There is no point applying a seemingly sophisticated procedure where the
results obtained, for various reasons including the lack of adequate project records, are not
sensible and do not represent the actual events surrounding a delay. Many
“methods” do not satisfy these requirements in certain circumstances.
There are many analysis procedures adopted and
given names which are, in my opinion, not particularly helpful. Some of the
procedures are coherent and logical in a methodology sense (where
methodology is the science of method) and can be regarded as methods whilst others are
not coherent or logical and are not really ‘methods’ as such. Before any
particular procedure is adopted, it is necessary to ensure that it is actually relevant to the criteria in the
The availability or otherwise of adequate and
accurate project records, such as regularly updated programs showing the
status of the work at regular intervals during a project, is also relevant to the choice of
delay analysis method.
If I analyzed the delays in a manner that is
consistent with the requirements of an
EPC Contract and in recognition of the relevant criteria in the EPC Contract, and found that there
appears to be an inherent inconsistency between the requirements, the delay is on
the critical path as reflected on the original Master Schedule, and that the
Scheduled Taking-Over Date corresponding to a Phase is actually delayed by such delaying event.
This is because, at the time of the delaying event, circumstances may have
changed to the extent that the original Master Schedule is not a reliable model for use in
assessment of likely future outcomes and would not reliably represent the effect of the
delay on the Scheduled Taking-Over Date.
In my opinion, the requirement to demonstrate
that the relevant Scheduled Taking-Over Date is actually delayed by an
event can only be reliably addressed by analysing the actual progress of the work on
the Project and identifying the actual effect of a delaying event upon progress.
It is therefore necessary for any analysis to
take into account all of the available evidence as to the status of the Project
at the time the delay occurred and the best available evidence for the formation of
an opinion as to the likely existence or otherwise of continuity of causation between
the delaying event and the likely Taking-Over Date corresponding to a Phase.
My approach is to take into account all
available evidence in order to test the compliance of any given delay
event with the criteria in the EPC Contract for an EOT entitlement to exist. This is
not the mindless application of a procedure, but rather the professional consideration of
the available information and the professional formation of opinions in regard to the
criteria in the Contract for an EOT entitlement.