Society of Construction Law Protocol for Determining Extensions of Time & Compensation for Delay & Disruption

Profession:Herbert Smith

The aim of this Protocol (drafted by the SCL and issued November 2001) is to tackle confusion over how to work out entitlements to extensions of time (EOTs) and compensation for other time-related delays. The Protocol takes the form of a 70-page guidance note, which can be downloaded from The website also contains a brief summary of the terms. The document is still in draft, the consultation period being extended until 28 February 2002.

It is an extremely helpful paper which is likely to have far-reaching effects. Its raison d'etre is that it will assist all parties to the construction process when dealing with time/delay matters, by establishing "best practice" guidelines which can be referred to, pre-contract, during the lifetime of the contract, and in the event that a dispute arises. A key aspect of the Protocol is its recognition that "transparency of information and methodology is central to both dispute prevention and dispute resolution" and will avoid "unnecessary disputes". It is hoped that the Protocol will bridge the gulf in performance between projects that do run to budget and programme and those that do not, the idea being that even small contractors can improve performance through careful management.

The main management tool used to achieve this is the programme, and much of the Protocol is devoted to this. Time-related problems can be exacerbated by overly-flexible programmes for sub-contract works, which can for example fail to establish precise dates for fundamentals such as commencement and completion. The best way to avoid misuse of the programme is through "real time programming", so that it is comprehensive as well as sufficiently detailed in areas where programming is often skimped, such as design and procurement. This will allow it to function as it should, to track both progress on site and the effect of changes. The Protocol particularly advocates regular and "transparent" programme updates. It also recommends adding a sub-network of "Employer Risk Events" to cover employer delay. Rather ambitiously, the Protocol further recommends that the agreed programme should be accompanied by a method statement "describing in detail how the Contractor intends to construct the works, and the resources it intends to use to do so". As to the technology, whilst the expectations are fairly low (envisaging basic critical path software), this should make the Protocol user-friendly for those small contracts where...

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