ASSESSING DELAYS: THE IMPACTED AS-PLANNED METHOD COMPARED TO THE TIME-IMPACT ANALYSIS

METHOD
1. INTRODUCTION
The penalty provisions for late completion found in construction contracts are for the benefit of the employer.
If the contractor does not meet the agreed completion date (or sectional completion dates) it would be liable
to pay to the employer a fixed amount of money for each day that the project is late either as a liquidated
damage or a penalty (delay damages). It may be that the penalty for such non-completion is capped, however.
In order to avoid liability for liquidated damages or delay damages, the contractor has to prove that the event
or circumstance has delayed completion of the project beyond the agreed date for completion for reasons
that are not of the contractors own making and are admissible as reasons for extension of time in accordance
with the contract.The contractor therefore has to prove that the cause of the delay is an employer cause or a
neutral cause, not a cause attributable to the contractor himself. A neutral cause is a cause which is not the
fault of the employer or contractor (IBC Construction Summer Law School 2010, Specialist Workshop – Time
and Delay: The basics under the Common Law and Standard forms, Patrick Holmes, Macfarlanes LLP). In
achieving this object, the contractor must employ a delay analysis methodology acceptable to the engineer,
adjudicator or arbitrator as the case may be. There are 5 commonly used delay analysis methods which are as
follows:
• Impacted-as planned method;
• Time impact analysis method;
• Collapsed as-built or ‘but-for’ analysis method;
• Snapshot/windows/time slice analysis method; and
• As-planned versus as-built windows analysis method (David Barry, Society of Construction Law, January
2005, D95) .
In this article the author examines only the first two methods of delay analysis. The remainder will be analysed
in a later article.

2. THE IMPACTED-AS PLANNED METHOD

This method of assessing a delay is to establish the hypothetical impact of the delay events on the baseline
schedule. It is a ‘prospective’ analysis method which means that it refers to the future and seeks to determine
the likely impact of a particular event(s) on project completion. The contractor superimposes the delay events
into the baseline schedule, links them in an appropriate manner and recalculates the schedule. The resultant
impact of the events shown on the completion date is then said to be the critical delay impact (Barry, 2005).
The following tasks are required to carry out this technique:
• Firstly, the contractor must establish that the baseline schedule was achievable. If this is not possible then
the calculated delay may not be correct for the reason that some or all of the calculated delay will have been
inevitable.
• Secondly, the contractor must ensure that the schedule is suitable for dynamic simulation. This means that it
will involve schedule calculation through simulation using computers and scheduling software. If the schedule
is not capable of dynamic simulation then the contractor has to make adjustments to the schedule’s logic and
in particular to replacing applied constraints in order for the activities to react appropriately during the
analysis.
• Thirdly, the contractor must establish the nature, extent and relationships of the delay event to be
introduced so that it can be appropriately linked in the schedule (Barry, 2005).
The downfall of this method is that it does not show whether a delay to completion was actually incurred as a
consequence of the modelled delay events. Secondly, this method does not demonstrate that a delay to the
work was likely to occur as a consequence of the introduced (simulated) delay events superimposed into the
programme as it uses the baseline schedule for analysis and ignores the effect of actual progress of the works
In any civil legal matter the claimant’s (usually the contractor) burden of proof to establish an entitlement to
an extension of time for completion is on a balance of probabilities. The fact is that this analysis method does
not show on a balance of probabilities that a delay was likely to occur as a consequence of the introduced
delay events. As a result the contractor will not have satisfied its burden of proof as it cannot show that it was
even probable that the events complained of have caused the delay.
3. THE TIME IMPACT ANALYSIS METHOD
This method of analysing a delay is recommended by the Society of Construction Law Delay and Disruption
Protocol in the United Kingdom (‘SCL Protocol’) (Barry, 2005). This methodology is both prospective (forward
looking) and a dynamic one. It has one significant variant on the impacted-as-planned method in that for each
introduced delay event, the ‘networked’ baseline schedule is first updated with progress to a point in time just
before the delay event arose. This means that it takes account of the effect of progress and timing of delay
events on the works. Clearly it requires good as-built data with which to update the schedule (Barry, 2005).
The question that must be asked is, when is one supposed to use this method of assessing a delay? Barry
(2005) recommends this as an appropriate method to use during a project but is a questionable method of
assessing a delay in post-contract dispute resolutions. In post-contract disputes it is not necessary to prove the
likely impact of an event on the progress of the works (Barry, 2005).
Contractual provisions require contemporaneous notices, particulars and/or assessment of the entitlement to
an extension of time. These provisions, when properly followed, facilitate real time project and contract
management and provide a balanced and fair approach to resolving possible complex programming matters in
a timely manner (Barry, 2005). The SCL Protocol has made the following statements in respect of this method:
“Entitlement to an EOT does not automatically lead to entitlement to compensation…’ and ‘…compensation
for prolongation should not be paid for anything other than work actually done, time actually taken up or loss
and/or expense actually suffered.’, ‘…the amount of EOT [determined by the Time Impact Analysis] may not
precisely reflect the actual delay suffered by the Contractor.’, ‘Time impact analysis…is generally the most
time consuming and costly when performed forensically.’ (Barry, 2005).
Barry (2005) sets out the following criteria to produce a reliable time impact analysis:
• Baseline schedule must be shown to be achievable,
• The logic in the schedule must be capable of correctly simulating the likely effect of the delay event,
• Detailed as-built data is required,
• The remaining planned sequence of the schedule for each time slice prior to impacting the delay event must
reflect the contractor’s known future intentions,
• The delay events introduced in the analysis should be based only upon information known at the date of the
time slice.

4. CONCLUSION
In order to achieve the most accurate result of the time impact analysis method, detailed as-built data is
required, and contracts therefore require contemporaneous notice and record documents supporting
the contractor’s claim for an EOT. This means that the contractor has to have accurate records on site to
substantiate a claim for an EOT and that it must prove, on a balance of probabilities that the event has delayed
completion. Jargon such as ‘dynamic schedule calculations’ and ‘prospective technique’ aside, the following
was said by Lord Drummond Young in City Inn v Shepherd Construction, 2007, CSOH 190 and [2008] 1 BLR “It
seems to me that it is a question of fact in any given case whether a relevant event has caused or is likely to
cause a delay to the works beyond the completion date…”.