Extension of Time (EOT) and

Related Costs in Construction

By
Khalil T. Hasan
Construction Solutions (www.cspk.org)
Presented at the
FIDIC Middle East Contract Users Conference
February 2013 Dubai, UAE

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 Time is of Essence
Delays are inevitable on construction projects
The only project to have completed on time is a Mosque.
Divine intervention (or Gods help) was understood to
be the force behind the timely completion of this
Mosque.
Time and Money go hand-in-hand. When projects get
late, additional costs are incurred.
This makes it imperative to take control of project
delays; timely and effectively.

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FIDIC

FIDIC

FIDIC

FIDIC
FIDIC

Majority of construction projects worldwide are

administered by the FIDIC forms of contract.
FIDIC recognises delay and related costs and has
provisions related thereto. For example;
Sub-Clauses 8.4 & 20.1 (FIDIC 1999 Edition)
Clauses 44 & 53 (FIDIC 1987 Edition)

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The FIDIC Provisions define the conditions where delay

may be claimed as the basis for an Extension of Time
(EOT). Some examples are;
Late provision of design or drawings
Unforeseeable Physical Conditions encountered on
Site
Inclement Weather
Variations instructed by the Engineer (Additional
Works etc.)
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Meanwhile the principles of how delay and

related costs should be calculated are not
defined by FIDIC. This leads to issues;
issues which are usually contentious due to
various 'schools of thoughts' and varied
interpretations existing worldwide.

Disputes are the usual outcome.

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Contentious Issues in Delay

Analysis
resulting in Disputes
Critical Path
Who owns the Float?
Concurrent (or Contractor) Delays and how these
effect Entitlement
EOT and its relation with Compensation for Delay
Which is the best Method of Delay Analysis?

As-Planned Vs. As-Built Comparison

Impacted As-Planned
Collapsed As-Built / But-For
Time Slice / Sub-Networks / Time-Impact
Etc.

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In order to eliminate disputes or facilitate

settlement of disputes, there are now certain
standards
used
worldwide.
The
leading
standards are;
Society of Construction Laws
Delay
and
Disruption
Protocol
Protocol)

(SCL

AACE 29R-03 (Forensic Schedule Analysis)

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The SCL Protocol was

finalized in October
2002 after several years
of deliberations and
considerable debate and
agreement between
experts from different
backgrounds
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The objective of the SCL

Protocol was to bring
reasonableness and fairness
into the delay assessment
process and to eliminate
widespread manipulation of
complex delay issues

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The SCL Protocol tried to standardize

the issues such that disputes would be
reduced or eliminated

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It is recommended that;

should be adopted as a
Standard and should be,
where possible,
incorporated in the

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The SCL Protocol can be

downloaded from:

www.eotprotocol.com
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The remaining slides of this lecture

will review and discuss the basic
Principles suggested and
recommended by the
SCL Protocol
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Basic Principles
suggested and
recommended by
the SCL Protocol

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The Principles suggested by the

SCL Protocol are simple.

Some of the key principles

suggested by the Protocol are;

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RULE NO. 1
If there is an Employers delay, which is beyond the
Contractors control, and if this delay impacts the
Completion Date of the Works,

the Contractor should be entitled to

receive an Extension of Time (EOT).

[This will effectively result in an extended Time for

Completion and will relieve the Contractor from
having to pay penalties for delay (or Delay Damages
under FIDIC)]

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RULE NO. 2
For the case of recovery of delay (or prolongation) costs
incurred due to the Employer delays, the Contractor must
be able to prove that there has been no other delay, which
is in his own control, and which is equally (or partly)
contributing for delaying the Time for Completion.

This category of delay is called a

Concurrent
(or Contractors) Delay

[In order to win a Delay Costs Claim, the Contractor

must be able to prove that he has not been
responsible for Concurrent Delays to the Time for
Completion]

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RULE NO. 3
Where Contractors Delay to Completion
occurs concurrently with Employers
Delay to Completion, the Contractors
concurrent delay should NOT reduce
any
Extension of Time (EOT), which is due.
[Result of Rule No. 1 will not change and is irrespective
of the result of Rule No. 2]

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The foregoing Rules proposed by the SCL

Protocol are meant to bring fairness and
reasonableness into the delay assessment
process.
[The emphasis of the SCL Protocol is that no
one Party should benefit from default of the
other Party]

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The Illustrations demonstrating the principles

of the SCL Protocol are contained in the
following Figures A to G

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Principles & Provisions of the SCL

Protocol
relevant to Figure B
Core Principle No. 7 - Float as it relates to time
Unless there is express provision to the contrary in the contract, where
there is remaining float in the programme at the time of an Employer
Risk Event, an EOT should only be granted to the extent that the
Employer Delay is predicted to reduce to below zero the total float on
the activity paths affected by the Employer Delay.
Guidance Section 1.12.1
If as a result of an Employer Delay, the Contractor is prevented from
completing the works by the Contractors planned completion date
(being a date earlier than the contract completion date), the Contractor
should in principle be entitled to be paid the costs directly caused by the
Employer Delay, notwithstanding that there is no delay to the contract
completion date (and therefore no entitlement to an EOT), provided also
that at the time they enter into the contract, the Employer is aware of
the Contractors intention to complete the works prior to the contract
completion date, and that intention is realistic and achievable.
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Principles & Provisions of the SCL

Protocol
relevant to Figure C

Core Principle No. 4 - Procedure for granting extension of

time
The EOT should be granted to the extent that the Employer
Risk Event is reasonably predicted to prevent the works
being completed by the then prevailing contract completion
date..The goal of the EOT procedure is the ascertainment
of the appropriate contractual entitlement to an EOT; the
procedure is not to be based on whether or not the
Contractor needs an EOT in order not to be liable for
liquidated damages.
Core Principle No. 5 Effect of delay
For an EOT to be granted, it is not necessary for the
Employer Risk Event already to have begun to affect the
Contractors progress with the works, or for the effect of
the Employer Risk Event to have ended.
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Principles & Provisions of the SCL

Protocol
relevant to Figure D
Core Principle No. 4 - Procedure for granting extension of
time
The EOT should be granted to the extent that the Employer
Risk Event is reasonably predicted to prevent the works
being completed by the then prevailing contract completion
date..The goal of the EOT procedure is the ascertainment
of the appropriate contractual entitlement to an EOT; the
procedure is not to be based on whether or not the
Contractor needs an EOT in order not to be liable for
liquidated damages.
Core Principle No. 5 Effect of delay
For an EOT to be granted, it is not necessary for the
Employer Risk Event already to have begun to affect the
Contractors progress with the works, or for the effect of
the Employer Risk Event to have ended.
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Principles & Provisions of the SCL

Protocol
relevant to Figure E

Guidance Section 1.2.11

an EOT should be granted to the extent that the Employer
Risk Event is predicted to prevent the works being
completed by the then prevailing contract completion date.
This process requires consideration of the available float
Guidance Section 1.4.12
Where there has been Employer Delay, this may prevent
the Employer charging the Contractor with LDs for failure to
achieve a contract completion date

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Principles & Provisions of the SCL

Protocol
relevant to Figure F
Guidance Section 1.4.8
Where an Employer Risk Event occurs after the contract completion
date, in a situation where failure to complete by the contract
completion date has been caused by Contractor Delays, the
principle set out in Section 1.4.7 above should apply, except where
the Employer Risk Event is a non-compensable Employer Risk
Event. In such an event, no EOT (or compensation) should be due.
Where an EOT is due after the contract completion date, the
Employer Risk Event does not exonerate the Contractor for all its
delays prior to the Employer Risk Event occurring. The effect of the
Employer Risk Event should be assessed as described above and
any EOT found due should simply be added to the contract
completion date.

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Principles & Provisions of the SCL

Protocol
relevant to Figure G Slide 1/2

Guidance Section 1.4.1

Where Contractor Delay to Completion occurs concurrently with
Employer Delay to Completion, the Contractors concurrent delay
should not reduce any EOT due.
Guidance Section 1.4.7
Where Employer Risk Events and Contractor Risk Events occur
sequentially but have concurrent effects, here again any Contractor
Delay should not reduce the amount of EOT due to the Contractor
as a result of the Employer Delay.
Concurrency (Appendix A Definations and Glossary)
True concurrent delay is the occurrence of two or more delay
events at the same time, one an Employer Risk Event, the other a
Contractor Risk Event and the effects of which are felt at the same
time. The term concurrent delay is often used to describe the
situation where two or more delay events arise at different times,
but the effects of them are felt (in whole or in part) at the same
time. To avoid confusion, this is more correctly termed the
concurrent effect of sequential delay events.
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Principles & Provisions of the SCL

Protocol
relevant to Figure G Slide 2/2

Core Principle No. 9 - Concurrent delay its effect on entitlement to

extension of time
Where Contractor Delay to Completion occurs or has effect
concurrently with Employer Delay to Completion, the Contractors
concurrent delay should not reduce any EOT due.
Core Principle No. 14 - Link between extension of time and
compensation
Entitlement to an EOT does not automatically lead to entitlement to
compensation (and vice versa).
Core Principle No. 10 - Concurrent delay its effect on entitlement to
compensation for prolongation
If the Contractor incurs additional costs that are caused both by
Employer Delay and concurrent Contractor Delay, then the Contractor
should only recover compensation to the extent it is able to
separately identify the additional costs caused by the Employer Delay
from those caused by the Contractor Delay. If it would have incurred
the additional costs in any event as a result of Contractor Delays, the
Contractor will not be entitled to recover those additional costs.
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Key Guideline, Suggestion and Advice

of the SCL Protocol
Guidance Section 3.2.13
Although the programme should be the primary tool for
guiding the CA in his determination of EOT, it should be
used in conjunction with the contemporary evidence to
ensure that the resulting EOT is fair and reasonable. It
will also be necessary for the parties to apply common
sense and experience to the process to ensure that all
relevant factors are taken into account, and that any
anomalous results generated by the programme
analysis are managed properly.

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Correct Responses for Figures

B to G
Figure No.

Question 1

Question 2

Question 3

Question 4

(c)

(b)

(a)

(b)

(a)

(b)

(d)

(b)

(c)

(d)

(d)

(c)

(b)

(a)

(d)

(c)

(a)

(b)

(d)

(c)

(c)

(a)

(a)

(b)

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Congratulations we
have come to the
end of the Lecture.
You are now a
Qualified and
Certified Delay
Claims Analyst and
Expert.

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FIDIC and Construction Solutions

thank you for your attendance and
contribution.
We wish you all Good Luck.

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We urge all participants to review the SCL Protocol on

their own. Construction Solutions Claims Management
Division (www.cspk.org) will remain available for further
discussions on the foregoing and any other relevant
issue.
This Lecture was delivered by the Managing Partner of
Construction Solutions, Mr. Khalil Tayab Hasan. For any queries
and clarifications, please feel free to contact Mr. Hasan at;
khalilhasan@cspk.org
khalilhasan@hotmail.com
+971 50 8861709
+92 345 8500195
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