substantiation and assessment of claims for extensions of time

5/25/2018 Substantiation and Assessment of Claims for Extensions of Time

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Substantiation and assessment of claims for extensions of time

M.M. Kumaraswamya,*, K. Yogeswaranb

aThe University of Hong Kong, Pokfulam, Hong KongbKowloon Canton Railway Corporation, West Rail Project, Hong Kong

Received 12 January 2001; received in revised form 6 June 2001; accepted 13 July 2001

Abstract

Standard forms of contract provide for extensions of time (EOT) due to excusable delays, and EOT claims are common in many

construction projects. The contractor and the supervising engineer often spend considerable time on substantiating and assessing

such claims. However, a variety of diverse techniques have been employed for such evaluations. A study was undertaken to analyse

different EOT evaluation techniques in Hong Kong, which continues to be a hotbed of construction activity attracting international

organisations. Reasons for delays in the submission and assessment of EOT were also probed. Conclusions on the suitability of

different techniques are drawn from an analysis of both the literature reviewed and a consolidation of practitioner perceptions, as

derived from a questionnaire survey and subsequent in-depth interviews. This leads to recommendations for explicit policies, clear

guidelines, tool-kits and improved contractual procedures that will upgrade the management of this crucial area. # 2002 Elsevier

Science Ltd and IPMA. All rights reserved.

Keywords: Claims; Evaluation; Extensions of time; Hong Kong

1. Background and introduction

Delays are a major source of claims and disputes inconstruction projects [1] and have even been cited as the

most common and costly cause of problems [2,3].

Delays themselves may arise from a wide variety of

causes. Considerable research efforts have been devoted

to identifying and categorising the principal factors that

commonly contribute to delays. For example, Kumar-

aswamy and Chan [4] compared a cross-section of

recent findings on major factors causing delays in

countries ranging from the USA, UK, Turkey, Nigeria,

Saudi Arabia and Indonesia with Hong Kong. How-

ever, disagreements on the responsibilities and liabilities

for such delays continue to trigger hotly contested con-

tractual claims.

A study that investigated contractual claims from 67

completed civil engineering projects in Hong Kong

revealed that 57 out of the 67 projects were delayed [5].

In such projects, the contractor submits claims for

extensions of time using one or more of an assortment

of techniques available for substantiation, upon which

the engineer then assesses the claims arising from excu-

sable delays, also using one or more of a variety of

approaches.Various common techniques and approaches were

examined by Alkass et al. [6], who reviewed and com-

pared the following delay analysis techniques used in

USA and Canadian contractual regimes, prior to pro-

posing a new Isolated Delay Type (IDT) technique.

1.1. Global Impact technique

All the delays are plotted on a summary bar chart.

The total delay to the project is rather simplistically

assumed to be the sum total of all individual activity

delay durations. This may well over-estimate the actual

overall delay, as it does not make allowance for con-

current delays in parallel activities.

1.2. Net Impact technique

Only the net effect of all delays including concurrent

delays are plotted on a bar chart based on the as-built

schedule. All delays, disruptions, variation orders and

suspensions are first plotted on the as-built schedule.

The net effect of all delays is next estimated taking

concurrent delays into account. The requested time

extension is then taken as the time difference between

0263-7863/01/$22.00 # 2002 Elsevier Science Ltd and IPMA. All rights reserved.

P I I : S 0 2 6 3 - 7 8 6 3 ( 0 1 ) 0 0 0 5 2 - 7

International Journal of Project Management 21 (2003) 2738

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The views expressed in this paper are those of the authors.

* Corresponding author. Tel.: +852-2859-1976; fax: +852-2559-

5337.

E-mail address: [email protected](M.M. Kumaraswamy).
mailto:[email protected]:[email protected]



the as-planned and as-built completion dates, the latter

having been adjusted by the net effect of excusable

delays. However, this method does not use network

programmes and may therefore misinterpret the true

effect of a delayed activity on overall completion.

1.3. But for technique (or As Built But for techniqueas described by Bordoli and Baldwin [7], Pickavance

[8] and Adams [9])

All delays for which one party (the owner according

to Pickavance [8]) accepts responsibility, are injected

into the as-built schedule. Using the CPM network

scheduling format, the updated schedule yields a revised

project completion date. This is compared against the as-

planned schedule. It is concluded that the difference

between the as-planned and the revised project completion

dates is a result of delays that were beyond that parti-

cular partys control. For example, if the owners were

using this technique, they would identify and inject allnon-excusable delays (attributable to the owners fault)

into the as-built schedule. The adjusted schedule would

generate a completion date that theoretically could have

been achieved but for the owner-caused delays. Bordoli

and Baldwin [7] and Adams [9] go a logical step further

in suggesting the deduction of all excusable delays,

including those due to neutral events i.e. neither partys

responsibility. The difference between the adjusted (but

for excusable delays) completion date and the as-plan-

ned completion date is then attributable to the con-

tractor. However, this technique does not account for

changing critical paths during the progress of the project.

1.4. Time Impact technique

This analysis examines the delay effects during the

progress of the project. The impact of each delay or

delaying event on the schedule is determined at the

relevant construction stage, the intention being to

obtain a stop action picture of the project before and/

or after a major delay impact. The difference between

the projected completion dates at these two stages is

determined as the delay to the project that occurred

during the period, with the total delay to the project

duration being the sum of all delays during the project.

But this technique neither scrutinises causes of delays

nor accounts for concurrent delays

1.5. Snapshot technique

Like the Time Impact technique, the snapshot

approach is based on comparing the as-planned and

revised as-built schedules that have been implemented

during the execution of the project. But unlike the Time

Impact technique, this approach does not focus on spe-

cific delays or delaying events. Instead, the total project

duration is divided into a number of time periods, or

snapshots. The dates of these snapshots usually coincide

with major project milestones, significant changes in

planning or when a major delay or group of delays is

known to have occurred. The relationships and dura-

tions of the as-built schedule within the snapshot period

are imposed upon the as-planned schedule, while main-taining the relationships and durations of the as-plan-

ned schedule for the remaining activities after the

snapshot period. The project completion date of the

thus extended schedule is compared with the estab-

lished, as-planned completion date of the project prior

to this procedure. The difference between the comple-

tion dates is taken as the amount of delay that occurred

to the project as a result of delaying events during that

snapshot period. The more snapshots (number of time

periods) chosen, the greater the accuracy. Although

concurrent delays are considered together, the causes of

delay are not initially investigated, e.g. in order to

decide whether they are excusable delays or not.

1.6. Adjusted as-built CPM technique

The Critical Path Method (CPM) format is used to

develop an as-built schedule. Delaying events are depic-

ted as activities and linked to specific work activities.

The critical path(s) are identified twice, firstly in the as-

planned schedule and secondly at the end of the project.

The difference between the as-planned completion date

and the adjusted as-built completion date is the amount

of time for which the claimant would request compen-

sation. This technique is similar to the net impact tech-nique in that both techniques only show the net effect of

all claimed delays on the projects completion date and

do not distinguish between different causes of delay.

Alkass et al. [6] compared and identified the advan-

tages and disadvantages of these techniques as discussed

earlier. They then subsequently proposed the IDT tech-

nique. The latter essentially considers delay types, con-

current delays and uses real time CPM analysis,

harnessing the systematic and objective approach of the

time impact and snapshot techniques while applying the

scrutinising approach of the But for technique.

While Mawdesley et al. [10] also found that network

techniques are often used for evaluating extensions of

time, they classified these as: addition method, sub-

traction method, stage addition method and time

slice method. Despite the differences in terminology,

similarities can be identified between these methods and

some of those described by Alkass et al. [6]. The differ-

ent types (options) of window analyses described by

Finke [11] also contain similar approaches, his recom-

mendation being to select the option that compared the

completion date indicated by the as-planned schedule,

as extended by adding excusable delays to the as-plan-

ned completion date.

28 M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738



The time extension substantiation and assessment

techniques used in practice in different contractual

regimes do not always fit exactly into any of the earlier

classifications. But the approaches include elements of

the techniques described earlier. For example, Adams

[9] has referred to what may be termed static analyses,

based on either the original programme with delaysadded, or the as-built programme with delays sub-

tracted. He drew attention to their limitations, for

example in relying on just one programme and therefore

one (static) critical pathwhich is contrary to reality.

He then recommended more dynamic window analyses

by considering several network programmes, taken at

regular time intervals (windows)similar in these

respects to the snapshot technique described by Alkass

et al. [6] and the window analyses recommended by

Finke [11] and also described in more detail by Pick-

avance [8].

The evident uncertainties, apparent confusion and the

lack of uniformity/standardisation in the earlier techni-ques also leads to protracted disputes on time extension

entitlements and any related cost implications. These

factors led the authors to study this sensitive area with a

view to identifying the more rationalised and better

methods if not best practice. While this study was

based in Hong Kong, the need for similar studies in

other contractual regimes is also apparent. Scott [12]

reported the use of a variety of approaches in assessing

the validity of a claim for an extension of time, based on

a questionnaire survey in the UK. He also reported on

the increasing use of project management software for

substantiating claims for extensions of time. Conlin andRetik [3] compared the features of 16 relevant project

management software packages available in the market,

while Bordoli and Baldwin [7] confirmed the wide

variability in the techniques used for assessment of

claims for extensions of time in UK, based on an ana-

lysis of the 96 responses received from contractors,

architectural practices, project management practices

and quantity surveyors.

Following on from these findings and a perception of

increasing difficulties through similar divergence in

Hong Kong [5], a questionnaire was formulated to

identify the common techniques adopted by construc-

tion professionals in evaluating time extension claims in

civil engineering works in Hong Kong. Delays in sub-

mission and assessment of claims were also probed. The

outcomes from the analysis of the survey responses are

presented in the following sections.

2. Questionnaire survey in Hong Kong

Interviews with some experienced practitioners in

Hong Kong revealed that it was often difficult to con-

vince relevant parties (including their own team, let

alone the opposing team) of the reliability of the more

accurate techniques, given that they appear to be more

complex. They were therefore often persuaded to resort

to simplistic and less reliable techniques (e.g. the Net

Impact Techniques or other static techniques) in order

to ensure that their claims were understood and dealt

with speedily. The questionnaire was therefore for-mulated to investigate the following practices applied in

the Hong Kong civil engineering project scenario:

1. common techniques used to substantiate and

assess claims for extension of time;

2. reasons for delays in submitting and assessing

claims for extensions of time;

3. preferred techniques for submitting/assessing

claims for extensions of time; and

4. recommended techniques for substantiating/evalu-

ating extensions of time.

The questionnaire was sent to 55 potential respon-

dents, who were carefully selected for their extensivegeneral experience in civil engineering projects in Hong

Kong and some particular experience with extension-of-

time evaluations. This selection was mostly based on the

authors knowledge of their relevant experience/exper-

tise in many cases, while a few others in the selected

sample of 55 were recommended by some of the initially

chosen industry experts themselves. Thirty four respon-

ses (yielding a 62% response rate) were received. The

respondents were civil engineers (23), quantity surveyors

(seven) and construction lawyers (four). They repre-

sented consulting engineers (13), contractors (seven),

employers (six) and others (eight academics and law-yers).

Their principal industry experience pattern, as shown

in Table 1, indicates a reasonable spread of both general

and specific experience among the respondents. Apart

from the experience in specific sectors (of Employers,

Consultants or Contractors) shown in Table 1, it was

also found that the 34 respondents had an average of 17

years experience in civil engineering type projects and

also an average of 13 years experience in Hong Kong

projects. The responses received are analysed in the fol-

lowing sections. It should be noted that brief pre-

liminary and follow-up interviews with a few of the

respondents enabled the integration of supplementary

observations that are also incorporated in the following

sections.

3. Submissions of claims for extensions of time

The respondents were given three optional categories

in which to classify the usual timing of submissions of

details of claims for extensions of time. The response

summary is shown in Table 2. The timing of the

occurrence of an excusable event is often arguable, and

M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738 29



this is analysed in the following sections. Assuming that

agreement exists on the timing of occurrence of excu-

sable events, most of the respondents state that the

submissions of the claims for extensions of time are

made within the construction period but rarely within 4

weeks of the occurrence of the event giving rise to the

claim. Although the 1993 Hong Kong General Condi-tions of Contract for Civil Engineering Works stipu-

lated that a notice of claim should be served within 42

days of occurrence of an event, this was reduced to a 28

day period in the 1999 edition. A 28 day period was

chosen in the questionnaire in any case, to reflect the

traditional monthly reporting of progress and events.

Clearly, events such as inclement weather could be

analysed within a week from the date of cessation of the

effects of weather on the activities which are weather-

sensitive (e.g. earthworks). However, it may be noted

that since extensions of time associated with inclement

weather are further sub-classified as non-compensable

excusable events, contractors often prefer to seek other

openings that may enable alternative claims for compen-

sable and excusable events. The respondents were

requested to identify the reasons for delays in submissionsof details of EOT claims, and these are ranked based on

the number of responses against each of the reasons.

Reasons for delays in submissions are ranked in Table 3.

It appears that the principal reasons for delays in

submissions are often related to the (1) inability to

identify the full extent of the delay at the beginning of

the event causing the delay; and (2) contractors desire

to focus on the progress of the works. This contractor

focus on the progress of works may be taken to include

Table 2

Timing of submission of details of claims for extensions of time

Timing of submissions Frequently Sometimes Rarely

Within 28 days of the occurrence of the excusable event giving rise to the possible delay 2 7 25

At the end of the original construction period for the relevant section 14 17 3

Others 0 0 0

Table 1

Experience pattern of the 34 respondents to the questionnaire survey

Experience Average No.

of years worked

in a specific sectora

by those^ who are now in that sector

Average No.

of years worked

in a specific sectora

taking the whole sample (of 34)

Experience with employers 19 (by the 6^ now in this sector) 6

Experience with consultants 18 (by the 13^ now in this sector) 10

Experience with contractors 16 (by the 7^ now in this sector) 7

a Sector: is taken to refer to either the Employers, Consultants or Contractors sector Note: four construction lawyers and four academics

(with industry experience) also responded.

Table 3

Reasons for delays in submitting the details of claims for extensions of time

Ranka Description No. of responses

1 Overall delay cannot be ascertained/actual delay could not be determined until end of delay or construction 14

2 Focus on progress of work and not on claim/contractors staff too busy on other tasks/lack of staff (in

contractors organisation) to deal with EOT claims

12

3e General lack of details 63e Lack of contractors management resources 6

5 The effects are not known/could not foresee that an event would cause a delay until the delay occurred 4

6e Contractor does not want to cause friction or offend the employer 3

6e Poor paperwork control by the contractor 3

6e Contractor wants to know exactly the amount of extension of time required such that their risk to liquidated

damages can be removed

3

9e Benefit of hindsight (choose events that attracts money) 2

9e Engineer requests excessive details 2

9e Policy to submit global claims can cause delayed submissions 2

9e Site staff inexperienced in contract procedures and task undertaken by head office expert who needs time to

understand claim situation

2

9e If the claim is related to inclement weather usually prompt action is taken 2

a e: (e.g. in 6e) signifies that this rank is shared with other items.




endeavours to recover non-excusable delays and miti-

gate excusable delays. A preference to delay a claim

submission, so as not to generate friction with the

employer/client and consultant/engineer was also noted

from general observations and comments received in the

questionnaires and at related discussions.

4. Assessment of claims for extensions of time

The Engineer is obliged to assess the submitted claims

for extensions of time, while the onus of providing ade-

quate information for this evaluation rests with the

claimant (contractor). The respondents were requested

to identify the timing of assessment of claims for exten-

sions of time and the summary of responses is shown in

Table 4. It appears that the assessments are carried out

at the end of the original construction period in most

cases. Submissions and assessments are inter-related

and responses to questions on the timing of submissionsand assessment are consistent (Tables 2 and 4) in iden-

tifying the more frequent timing to be at the end of the

construction period.

The respondents were next requested to identify the

reasons for delays in assessment of claims for extensions

of time. These reasons are ranked based on the number

of responses for each of the reasons. The ranked reasons

are shown in Table 5. Possible actions that may betaken to address the problems causing delays in assess-

ment as suggested/formulated by the authors are also

presented in Table 5.

It appears that the principal reasons for delays in

assessments are related to lack of details and clarity in

substantiation, and delays in submissions of details by

the claimant. There also appear to be deficiencies in

procedures and approaches/attitudes that may be traced

to a lack of clear policies and guidelines. There is a need

to set out common objectives for the claimant and the

assessor to achieve speedy settlement of the claims for

extensions of time. It should be appreciated that the

contractor and the engineer representing the Employerhave a common goal in achieving speedy and successful

Table 4

Timing of assessment of claims for extensions of time

Timing of assessment Frequently Sometimes Rarely

Within 28 days of the occurrence of the excusable event giving rise to the possible delay 0 4 30

At the end of the original construction period for the relevant section 16 16 2

Within reasonable time from the date of submission of details of the claim by the claimant (contractor) 12 14 6

Table 5

Reasons for delays in assessing claims for extensions of time

Ranka Reasons for the delay in assessment No. of responses Possible action to address the problem

1 Poorly presented submissions/lack of particulars 18 Provide guidelines on presentation of particulars of

the claims

2 Late submission of claims by the contractors/engineer

waits for final information from contractor

9 Formulate a clear and pragmatic policy on submission

and assessment of claims

3 Insufficient personnel to process the assessment/lack

of resources and experience

8 Management/recruitment of experienced personnel

4e Employers attitude/interference/political 6 Clear policy is required

4e Consultant would rather wait until end of job 6 Clear policy is required

6e No timetoo busy/ERs staff too busy with other tasks 4 Resources to be better managed

6e Collection of relevant facts from site records to establishthe principle of the claim and quantification usually

takes longer than 28 days/time consuming to check records

4 Formulate a clear and pragmatic policy on submissionand assessment of claims

8 Delay in approval by employer 3 Standardise procedures in the employers organisation

10e Global Impact is uncertain 2 Practical problembut guidelines on interim assessment

may be useful

10e Absence of EOT may put pressure on contractor to

perform more efficiently

2 Genuine attempt to get the job done but using wrong

management techniqueneeds a change of mind-set

10e It is nearly always necessary for the engineer to make an

interim assessment before receipt of any particulars

from the contractor

2 Formulate a policy on interim/final assessment of claims

10e Because of engineers passive position contractor employs

a delaying tactics in his submissions

2 Clearly allocate responsibilities

a e: (e.g. in 6e) signifies that this rank is shared with other items.




completion of a project, although manifesting conflict-

ing financial interests in respect of price levels.

5. Techniques used in substantiation and assessment

The respondents were asked to identify the commontechniques used in substantiation and assessment of

claims for extensions of time and the summary of their

responses is shown in Tables 6 and 7. It appears that the

contractors frequently use Global Impact and Net

Impact techniques in substantiation, while the engineers

often apply Adjusted as-built CPM and Net Impact

techniques. Such observations may be taken to lead to

interim hypotheses that need testing: for example, if the

contractor uses Net Impact technique in substantiating

the claim, there could be a greater likelihood of early

settlement since many engineers may accept the conclu-

sions reached via this technique.

The respondents were also asked to identify theirpreferred techniques and these are summarised in

Table 8. The Adjusted as-built CPM technique has

evoked general preference in both substantiation (from

the viewpoint of a claimant) and assessment (from the

perspective of assessor) modes, while Net Impact tech-

nique also attracted substantial (and almost equal)

interest in both modes. However, it may be noted that

each of these techniques: (1) have some shortcomings,

for example in (a) analysing delay types, (b) dealing

with concurrent delays or (c) incorporating real time

CPM [6]; and (2) would lead to different outcomes upon

quantification. Therefore there is a need for a uniformpolicy and consistent strategies, at least in identifying

suitable techniques or a mix of techniques for specific

scenarios.

In the above context it is useful to track any relevant

legalistic views on the relative suitability of different

evaluation techniques, while the body of relevant legal

precedents is emerging in parallel in different common

law regimes. Wickwire and Ockman [13] provided some

examples from the USA. For example, they cited cases

such as (1) Haney vs. United States where the US Court

of Claims accepted the comparison of as-planned with

as-built critical path (CPM) programmes in 1982; (2)

Utley James Inc. where the General Services Board of

Contract Appeals provided specific views on various

aspects of CPM programming, including on resource

levelling and acceleration; and (3) Weaver Bailey Con-

tractors Inc. vs. United States in which the Chief Judge

of the US Court of Claims (in 1990) described float as

an expiring resource available for use by all parties to

the contract. Pickavance [8] cited other cases, for exam-

ple (1)Titan Pacific Construction Corp. vs. United States

in relation to As Planned vs. As Built Bar Chart meth-

ods and (2) Cannon Construction Corporation in respect

of the As Built But for technique. The foregoing indi-

cate that all such approaches have achieved legal recog-

nition and the relevant body of developing case law will

shed further light on the more contractually acceptable

approaches.

It is further noted that the type of contract used (and

any special conditions introduced) may also influence

the chosen approach. For example, any particular pro-gramming and progress control requirements, such as

on critical path based submissions may have a bearing

on readily available project documentation, which may

in turn facilitate certain evaluation techniques to a

greater extent than others.

6. Responsibilities for submissions and assessment of

claims

Having reviewed prevalent common perceptions in

the Hong Kong civil engineering construction industry,

Table 6

Techniques used in substantiation of claims for extensions of time

Technique for substantiation No. of responses

Frequently Sometimes Rarely

A Global Impact 15 3 7

B Net Impact 11 11 2

C But for 0 10 8

D Time Impact 5 4 11

E Snapshot 1 3 16

F Adjusted as-built CPM 8 3 8

Table 7

Techniques used in assessment of claims for extension of time

Technique for assessment No. of responses

Frequently Sometimes Rarely

A Global Impact 7 3 20

B Net Impact 10 15 4

C But for 7 10 12

D Time Impact 8 10 12

E Snapshot 2 8 18

F Adjusted as-built CPM 13 10 7

Table 8

Preferred techniques in substantiating and assessing claims for exten-

sion of time

Technique Substantiation

(No. of responses)

Assessment

(No. of responses)

A Global Impact 6 1

B Net Impact 9 8

C But for 2 6

D Time Impact 3 7

E Snapshot 1 2

F Adjusted as-built CPM 10 11




based on the earlier questionnaire survey and some

related preliminary and follow-up interviews, it is

necessary to relate these to the relevant responsibilities

for submission and assessment of claims for extensions

of time. Such contractual obligations are reviewed

separately under submissions and assessment in the

following sections, based primarily on the Hong KongGovernment General Conditions of Contract for Civil

Engineering Works (HKGCC).

6.1. Submissions

Where delays are anticipated, the contractor is

responsible for submitting a notice of claim, followed

by the detailed particulars of the claims.

6.1.1. Notice of claim

The 1999 HKGCC Clause 50 first provides that:

50 (1) (a) As soon as practicable but in any eventwithin 28 days after the cause of any delay to the

progress of the Works or any Section thereof has

arisen, the Contractor shall give notice in writing to

the Engineer of the cause and probable extent of

the delay.

The contractor is also obliged to mitigate the effect of

any excusable delays and recover the non-excusable

delays. In practice, contractors may either notify earlier

than necessary (e.g. the contractor may notify his

intention to claim an extension as soon as he receives

any variation order, regardless of whether the variationorder is minor or major), or wait until the delay is

beyond a recoverable stage (i.e. without incurring addi-

tional expenses). Some engineers estimate the 28 day

period from the date of issue of instruction of variation

and reject a claim for extension of time based on the

argument that the notice had not been served within this

28 day period. However, it may be more prudent to take

a practical approach in considering the claim for exten-

sion of time if the particulars provided by the contractor

satisfy the requirements of the above sub-clause 50(1)

rather than merely disagree on the time of serving the

notice. Such flexibility is recommended even in other

contractual regimes, for example in the UK and Sri

Lanka [14], since giving notice within the designated

time period is usually not considered to be a condition

precedent to the claim itself, although it may have other

contractual implications (e.g. signifying a breach).

6.1.2. Detailed particulars

HKGCC Clause 50(3) provides that:

For the purposes of determining whether or to

what extent the Contractor may be entitled to an

extension of time under sub-clause (1)(b) the Engi-

neer may require the Contractor to submit full and

detailed particulars of the cause and extent of the

delay to the progress of the Works. Where such full

and detailed particulars are required by the Engi-

neer, they shall be submitted in writing by the

Contractor to the Engineer as soon as practicable

in order that the Contractors claim may be inves-tigated at that time by the Engineer. If the Con-

tractor fails to comply with the provisions of this

sub-clause, the Engineer shall consider such exten-

sion only to the extent that the Engineer is able on

the information available.

Sub-clause (1)(b) identifies the excusable events that

entitle the contractor to an extension of time. One of the

principal reasons for delays in assessment of claims that

emerged from the aforementioned survey, was poorly

presented details/lack of particulars/engineer waits for

contractors information. It is essential to spell out in

Particular or General Specifications, the type ofdetailed particulars that may be required by the engi-

neer. Since the engineer is obliged to consider an exten-

sion of construction period based on the information

available to him, some contractors wait for the engineer

to advise his award. Subsequently, the contractor builds

up his counter claim based on the engineers award. In

such cases, the engineer tends to be defensive and delays

in providing his response since the contract does not

require him to do so. However, it is in the long-term

interests of both claimant and assessor that the informa-

tion should be supplied as soon as possible by both par-

ties in order to achieve a speedy and equitable solution.

6.2. Assessments

The HKGCC Clause 50(2) provides that:

If in accordance with sub-clause (1) of this Clause

the Engineer considers that the Contractor is fairly

entitled to an extension of time for the completion

of the Works or any Section thereof, the Engineer

shall within a reasonable time determine, grant and

notify in writing to the Contractor such extension.

If the Engineer decides that the Contractor is not

entitled to an extension, the Engineer shall notify

the Contractor in writing accordingly. Provided

that the Engineer in determining any such exten-

sion shall take into account all the circumstances

known to him at that time, including the effect of

any omission of work or substantial decrease in the

quantity of any item of work. Provided further that

the Engineer shall, if the Contractor shall so

request in writing, make a subsequent review of the

circumstances causing delay and determine whether

any further extension of time for completion

should be granted.




The obligation of the engineer to grant an extension

of time if he considers that the contractor is fairly enti-

tled to an extension of time, is unequivocal. The term

fairly appears to suggest that the contractor will not

receive extensions of time for reasonably avoidable

delay [15]. It is not practical for the engineer to assess a

claim for extension of time without any informationsubmitted by the contractor. Generally, the engineer

requests the contractor to submit detailed particulars of

the claim while the contractor provides very basic

details, for example, using a method such as the Global

technique to substantiate his claim. The clause does not

specify a time frame within which an award should be

made. Nevertheless, both the contractor and the

employer are desirous of knowing the exact extent of

the revised construction period in the event of delays

caused by excusable events (given that delays due to

non-excusable events should be recovered by the con-

tractor). Lack of a specified time frame does not

encourage an expeditious settlement, and as seen fromthe responses (in Tables 2 and 4), submissions and

assessments are frequently made towards the end of

construction period. Both the contractor and the

employer are thus denied knowledge of the revised con-

struction period at intermediate stages in the project.

6.2.1. Detailed particulars and documents needed for

assessment

While the earlier examples are principally from Hong

Kong, they are indicative of many similar scenarios

where international construction organisations interact.

In general, Thomas [16] recommends that the con-tractor, in order to substantiate his claim, is well advised

to provide details and diagrams indicating:

1. what ought to have occurred if there had been no

delaying event, or circumstance;

2. what actually occurred as a result of the delaying

event, or circumstance; and

3. analysis of facts, calculations, explanations and

arguments to show how the delaying event, or cir-

cumstance, was responsible for the change in the

method and/or programme.

Detailed particulars should include programmes and

other factual evidence to support the claim. Substantia-

tion and assessment should use an agreed technique for

analysing the claim. As seen from the responses to the

survey in Hong Kong, Net Impact technique and Adjus-

ted as-built CPM techniques are preferred in comparison

with other techniques. Since more powerful computers

and matching project management software have become

affordable in the context of medium to large scale projects

it is imperative that more scientific techniques are adop-

tedfor consistency, reliability, better planning and

reduced disputes. Network based assessments are more

realistic and comprehensive in this respect.

Maintenance of contemporary records from the

inception of a project is essential for efficient and expe-

dient substantiation and assessment of construction

claims. Prudent management policies are also needed,

for example, to engage sufficient personnel such as a

programming engineer with relevant experience, and

equipment such as adequate computer hardware andsoftware to capture and maintain contemporary

records. Daily progress should be recorded with rele-

vant links to the programmed activities and where

necessary new activities/sub-activities may be recorded

to reflect the delays/variations that were not evident in

the approved works programme. Activity numbers

should be used to conveniently record and collate the

resources (labour and plant) allocated to each activity.

Works supervisors/inspectors should agree the records

with contractors foremen on a daily basis and enter the

data on a spread-sheet format (e.g. Excel), which can be

easily imported into project management software such

as PRIMAVERA project planner when updating theprogress periodically (say on a monthly basis). In this

context, it is recalled that the earlier described ques-

tionnaire survey revealed that inadequate records and

focus on progress of the works but not on pursuing a

claim, due to lack of staff were among the principal

generic causes, identified as leading to delays in sub-

stantiation/assessment of claims. An appropriate bal-

ance is therefore needed between allocating resources

for monitoring/recording of the progress and in opti-

mising resources for executing the physical works. Top

management should formulate appropriate policies that

will be implemented through clear and realistic guide-lines as indicated, for example, in the last column of

Table 5.

Clearly, the agreed scope of works associated with

each activity at the submission/review stage of the

works programme would assist the site supervisory

staff to record the commencement and completion of

activities without disagreement. It should be noted

that these actual start/completion dates of activities

would play an integral role in establishing delays and

as-built critical path(s). Actual records should reflect

the sequence of the programmed works in order to

maintain consistency between as-planned and as-built

records.

The type of contract, including general and special

conditions and particular specifications, may well influ-

ence the nature of the available project documentation,

apart from also governing any programming, progress

control and delay mitigation measures. The size and/or

complexity of the project may also influence the type

and quality of documents maintained. These two fac-

tors, i.e. the type of contract and the size and/or com-

plexity of the project may therefore have a bearing on

the final approach to EOT evaluation on a particular

project.




6.2.2. Recommended technique(s) under the HKGCC

The respondents to the Hong Kong based survey were

invited to recommend suitable technique(s) for submis-

sion and assessment of claims for extensions of time.

Most of the respondents recommended the Net Impact

technique as a simple method while also recommending

the Adjusted as-built CPM technique. Respondentsrecognised that there is no explicit provision in the

HKGCC as to which technique should be applied. This

flexibility was probably necessary when initially framing

the HKGCC, especially due to there being no guarantee

of sufficient resources to substantiate/assess the claims.

This need not be the case in the current environment

where advanced computing facilities and relevant soft-

ware are widely available. Suitable inputs from man-

agement could be used in developing acceptable

scientific approaches to reach consistent conclusions on

reasonable claims with less disputes. An Adjusted as-

built CPM technique may be specified in the contract or

in guidelines/codes of practice to substantiate the claimsif a policy is adopted to settle the claims at the end of

the construction period. However, this technique may

not be suitable for those Employers and Contractors

who wish to know the implications of adjusted contract

periods while there is still time for compensatory

actions. A Time Impact or Snapshot technique may be

suitable in such cases. Although the former appears to

be more familiar and preferred in Hong Kong according

to the surveyed sample, the latter is better equipped to

analyse concurrent delays [6]. It is essential to maintain

records that are relevant for substantiating/assessing the

claims in any of these approaches. For example, Tho-mas [16] stipulated the type of records that should be

maintained on a general site for such purposes.

6.2.3. Supplementary expert views from the Hong Kong

industry

After analysing the survey results, a series of in-depth

interviews were recently arranged with seven experts

who were reputed for their experience in assessing EOT

in Hong Kong projects. These seven experts consisted of

four who were presently working for consultants

(including claims consultants representing contractors

or clients), two working for large clients and one for a

contractor. In each case the interviewees were those who

particularly dealt with EOT claims on behalf of their

organisations. Given their wide and high level general

experience and professionalism, it was not surprising

that no particular differences were observed between

their views that may have arisen from their present

work affiliations (i.e. to consultants or a contractor). A

consolidated cross-section of their responses to two of

the questions raised are summarised later to further

illustrate the current approaches and perceived short-

falls in present practices that need to be addressed with

suggestions for improvements.

6.2.3.1. on Evaluation Methods. It was generally

recommended to use one of the CPMs (Critical Path

Methods) in comparing the As Built CPM programme

with the original CPM (As Planned) program, along

with interim checks of programme vs. progress. It was

also suggested to check the initial program, method

statement and resource allocation plan for their suit-ability and viability. There was a suggestion to (1) use

Window Analysis for logic driven jobs; while (2)

checking the quantum of work planned vs. quantum of

work done for resource driven jobs; and (3) using As

Built Collapsed CPM for quick analysis. Methods of

valuation were said to depend on the quality and

amount of information available. In general, it was felt

that delay causations could be best assessed by using

regular Window Analysis updates on an ongoing basis.

6.2.3.2. on Shortcomings in present practice that need to

be addressed by the present study. It was recommended

that somewhat theoretical/abstract (or of that matter,unquantified global) EOT claims (that ignore activity

dependencies and critical paths) should be avoided.

However, a simple method for EOT evaluation is needed

and ongoing delay assessments should be encouraged. It

was suggested that a check-list would help to monitor and

record changes. It was also recommended to upgrade the

relevant knowledge of all professionals involved in the

preparation and assessment of claims.

6.3. Overall time frames

It is clear from the responses that in most cases in HongKong, extensions of time were awarded at the completion

of the project rather than soon after occurrence of an

event although the contract indicates that an award

should be made within a reasonable period. For example,

a claim for extension of time due to inclement weather

or delay in possession of site can be promptly evaluated

and awarded, while disruption to progress of works due

to variations instructed by the engineer may be difficult

to evaluate without detailed analysis of actual progress

of the works. A typical cycle for assessment of a claim

for an extension of time may be summarised as follows:

Action taken (listed sequentially) Response

period (weeks)

Contractor serves Notice of claim 6

Acknowledgement of notice by the

Engineer

1

Submission of preliminary details 2

Engineer requests further details 1

Contractor submits further details

after the effects of the event are known

26

Engineers initial assessment/award 36

Total 1525




A brief comparison of advantages (and dis-advantages) of interim award and awarding extension

at completion has been compiled by the authors on the

basis of the literature surveyed, their experiences in

industry and observations derived from the interviews

and other interactions during the recent survey. These

are summarised in Table 9.

In applying the chosen techniques, basic principles

such as; the contractors obligation to recover non-

excusable delays and the contractors/employers right

to use previously programmed float time should be

taken into account and incorporated in an explicit pol-

icy and then translated into guidelines/technical notes.The actual durations of activities as compared with the

planned durations should also take into account:

1. contractors efficiency/inefficiency;

2. contractors additional efforts (or otherwise) to

recover non-excusable delays;

3. over-estimation of the production rate (for as-

planned durations);

4. different production rates for old and new plant;

5. different output rates from different gangs of

labour; and

6. different output rates for similar activities due to

weather/ climatic influences.

A pragmatic approach would minimise the disputes

arising from differing perceptions of the above con-

siderations, i.e. by providing clear guidelines, flowing

from the earlier recommended explicit policy.

7. Conclusions and recommendations

The survey results indicate that detailed claims for

extensions of time are often submitted towards the end

of the construction period. This is one of the con-

tributory factors to the late assessment of claims. Itwould appear reasonable to adopt a policy decision to

assess claims for extensions of time at the end of the

original construction if the project durations are less

than a specified short period, say, for example, 24

months, and also if the claims do not appear to be

large. This is achievable by clearly specifying the

intentions of the parties to the contract. In cases of

projects of more than the specified short durations (e.g.

24 months) or for larger claims, it is prudent to follow

an interim assessment approach, to achieve greater cer-

tainty as to revised completion dates, and to encourage

mitigation measures.The assessment of claims is the responsibility of the

engineer, as assisted by the site staff. The Contract pro-

vides that the engineer should assess and award exten-

sions of timesome argue that (s)he should do so even

if (s)he had not received detailed particulars from the

contractor. However, it is prudent to place the onus for

substantiation squarely on the claimant, while the

responsibility for evaluating the details provided by the

claimant should rest with the engineer. As seen from the

responses to the question soliciting reasons for delays in

the assessment of claims, the engineers rely on the clai-

mants submissions. It is suggested that General Condi-

tions of Contract should be amended to reflect the

earlier pragmatic considerations with specified time

frames for submissions of details and assessment. It is

noted that the time frame specified for submitting noti-

ces of claims is not sufficient by itself, to achieve the

desired results. For example, it is desirable that the

revised construction period for the project should be

determined as soon as possible, by awarding extensions

of time in a timely manner in response to reasonable

claims.

Agreed records of progress for all activities should be

maintained which will help in the prompt assessment of

Table 9

Comparison of interim award and award at completion approaches

Interim award Award at completion

1 Construction period is clear to both the contractor and

employer at any stage of the contract

Actual period of construction is known and the award need not be greater

2 Contractor may not be able to cover his own delays with

extensions from interim award(s)

An efficient contractor may be able to cover his delays with excusable delays

3 If an event occurs when the contractor instituted steps to

accelerate the works to recover non-excusable delays, it

may be difficult to take account of the effect of an

excusable event on the progress of works in an interim

assessment

Actual progress could involve both the effects of non-excusable and excusable

events as well as the contractors effort to recover non-excusable delays.

Equitable assessment can be reflected on the actual extent of the delay if it

could be linked to excusable event

4 Interim assessments of delays due to disruption of works

due to excusable events require analysis of actual

progress of the works

At the completion of project full records may be available and it is easier to

analyse the implication(s)

5 It is easier to obtain relevant information before works

are covered up, documents are misplaced, facts are

forgotten and/or some key persons involved have

moved on to other projects

Further details may be difficult to elicit in relation to covered up works, and

poorly documented events




claims. Essential hardware, software and management

resources should also be provided in order that such

records can be prepared and up-dated conveniently; and

ideally feed directly into the formulation, substantiation

and assessment of claims. The next phase in this ongo-

ing research project is in progressin formulating the

framework for an appropriate knowledge-based deci-sion support system for evaluating such claims for

extensions of time in civil engineering projects in Hong

Kong [17].

In cases of medium size projects, management

resources are limited and the records are usually inade-

quate for applying sophisticated techniques such as the

Isolated Delay Technique proposed by Alkass et al. [6].

Simple techniques such as Net Impact are preferred by

the respondents to the current survey. However, Net

Impact is not an accurate technique and would not rea-

listically apportion responsibility for critical delays. It

may thus only be used, if at all, for an approximate first-

order estimate of a possible extension of time. Further-more, large scale projects with sufficient management

resources warrant more accurate methods and the

Adjusted as-built CPM technique is preferred by the

survey respondents.

The Time Impact technique is preferable where early

assessments are particularly useful; and the Snapshot

technique is desirable where concurrent delays need to

be carefully considered. A hybrid technique, such as the

Isolated Delay technique may be even better, but it is

concluded that a scenario-specific technique may be

chosen from a tool-kit according to preset guidelines.

The urgent need for such guidelines is underlined bythe evident confusion and shortfalls in the choice of

EOT evaluation techniques and the disputes arising

from the applications of different techniques. A degree

of standardisation is useful in minimising temptations to

choose the more advantageous and/or the more easily

applied/understood technique. While no single techni-

que can be universally applicable, it appears possible to

identify a battery of best-practice techniques from

which a scenario-specific one may be selected according

to some guidelines.

The literature review of international practice as sur-

veyed by researchers in other countries, together with

the present survey in Hong Kong have yielded what

may be considered the foregoing interim conclusions

and pointers on preferred approaches to assessments

of extensions of time. However, given the complexities

and variables unearthed, more detailed studies with lar-

ger samples are warranted prior to definitive recom-

mendations on specific techniques.

Delays in submissions and assessment of claims may

be minimised by addressing the causes underlying the

reasons given by the respondents. An initial attempt has

been made to recommend measures to address such

causes (as in Table 5). It is useful to extract common/

recurring generic causes and corresponding recommen-

dations from such tabulations in order to formulate

general strategies for better management of claims for

extensions of time. Such strategies could be scenario-

specific as in the case of particular measures related to

Hong Kong, or more general in the case of a broader

range of applications.Specific recommendations derived from such strate-

gies and related realistic assessment methods could

initially be conveyed through various guides/codes of

practice; since incorporating detailed assessment meth-

ods in conditions of contract would impose an onerous

rigidity, as against the flexibility that may be needed to

model particular scenarios. These guides could, for

example be adapted and conveyed through the Techni-

cal Circulars that are periodically issued by the Works

Bureau of the Hong Kong Government and applied to

most civil engineering projects in the territory; or be

embodied in industry codes of practice or tool-kits, as

may be developed, for example, by the ConstructionIndustry Institutes in USA or Australia or the European

Construction Institute. In addition, each construction

organisation could, and should, develop its own policies

and organisation-specific strategies and procedures that

will expedite the efficient and reliable substantiation and

evaluation of extension of time entitlements on its own

projects.

Acknowledgements

The reported study is supported by a CRCG researchgrant from The University of Hong Kong, which is

gratefully acknowledged as is the assistance of Mr.

Ragupathy Nadarajah in conducting and documenting

the recent interviews. The authors are also thankful for

the thoughtful and valuable responses from Hong Kong

construction industry practitioners.

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substantiation and assessment of claims for extensions of time

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