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Substantiation and assessment of claims for extensions of time

M.M. Kumaraswamy
a,
*, K. Yogeswaran
b
a
The University of Hong Kong, Pokfulam, Hong Kong
b
Kowloon 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
dierent 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
dierent 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 in
construction 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 eorts 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 ndings 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 eect 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 rst plotted on the as-built schedule.
The net eect of all delays is next estimated taking
concurrent delays into account. The requested time
extension is then taken as the time dierence between
0263-7863/01/$22.00 # 2002 Elsevier Science Ltd and IPMA. All rights reserved.
PI I : S0263- 7863( 01) 00052- 7
International Journal of Project Management 21 (2003) 2738
www.elsevier.com/locate/ijproman

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


* Corresponding author. Tel.: +852-2859-1976; fax: +852-2559-
5337.
E-mail address: mohan@hkucc.hku.hk (M.M. Kumaraswamy).
the as-planned and as-built completion dates, the latter
having been adjusted by the net eect of excusable
delays. However, this method does not use network
programmes and may therefore misinterpret the true
eect of a delayed activity on overall completion.
1.3. But for technique (or As Built But for technique
as 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 dierence
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 all
non-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 dierence 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 eects 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 dierence 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-
cic 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, signicant 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 dierence 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 specic work activities.
The critical path(s) are identied twice, rstly in the as-
planned schedule and secondly at the end of the project.
The dierence 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 eect of
all claimed delays on the projects completion date and
do not distinguish between dierent causes of delay.
Alkass et al. [6] compared and identied 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 classied these as: addition method, sub-
traction method, stage addition method and time
slice method. Despite the dierences in terminology,
similarities can be identied between these methods and
some of those described by Alkass et al. [6]. The dier-
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 dierent contractual
regimes do not always t exactly into any of the earlier
classications. 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 delays
added, 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 and
Retik [3] compared the features of 16 relevant project
management software packages available in the market,
while Bordoli and Baldwin [7] conrmed 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 ndings and a perception of
increasing diculties 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 dicult 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 extensive
general 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 specic experience among the respondents. Apart
from the experience in specic 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 reect 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
eects 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-classied 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 submissions
of 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 specic sector
a
by those
^
who are now in that sector
Average No.
of years worked
in a specic sector
a
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
Rank
a
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 sta too busy on other tasks/lack of sta (in
contractors organisation) to deal with EOT claims
12
3e General lack of details 6
3e Lack of contractors management resources 6
5 The eects 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 oend 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 Benet 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 sta inexperienced in contract procedures and task undertaken by head oce 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) signies that this rank is shared with other items.
30 M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738
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 submissions
and 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 be
taken 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 deciencies 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 Employer
have 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
Rank
a
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 nal information from contractor
9 Formulate a clear and pragmatic policy on submission
and assessment of claims
3 Insucient 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 sta too busy with other tasks 4 Resources to be better managed
6e Collection of relevant facts from site records to establish
the principle of the claim and quantication usually
takes longer than 28 days/time consuming to check records
4 Formulate a clear and pragmatic policy on submission
and 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 eciently
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/nal 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) signies that this rank is shared with other items.
M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738 31
completion of a project, although manifesting conict-
ing nancial interests in respect of price levels.
5. Techniques used in substantiation and assessment
The respondents were asked to identify the common
techniques 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 their
preferred 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 dierent outcomes upon
quantication. Therefore there is a need for a uniform
policy and consistent strategies, at least in identifying
suitable techniques or a mix of techniques for specic
scenarios.
In the above context it is useful to track any relevant
legalistic views on the relative suitability of dierent
evaluation techniques, while the body of relevant legal
precedents is emerging in parallel in dierent 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 specic 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 oat as
an expiring resource available for use by all parties to
the contract. Pickavance [8] cited other cases, for exam-
ple (1) Titan Pacic 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 inuence
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
32 M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738
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 Kong
Government 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 rst provides that:
50 (1) (a) As soon as practicable but in any event
within 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 eect 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 variation
order 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 exibility 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) identies 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 Specications, the type of
detailed 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 eect 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.
M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738 33
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 information
submitted 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 specied time frame does not
encourage an expeditious settlement, and as seen from
the 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
aordable in the context of medium to large scale projects
it is imperative that more scientic 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 ecient and expe-
dient substantiation and assessment of construction
claims. Prudent management policies are also needed,
for example, to engage sucient personnel such as a
programming engineer with relevant experience, and
equipment such as adequate computer hardware and
software 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 reect 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 the
progress 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 sta were among the principal
generic causes, identied 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
sta 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 reect
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 specications, may well inu-
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 inuence 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 nal approach to EOT evaluation on a particular
project.
34 M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738
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. Respondents
recognised that there is no explicit provision in the
HKGCC as to which technique should be applied. This
exibility was probably necessary when initially framing
the HKGCC, especially due to there being no guarantee
of sucient 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
scientic approaches to reach consistent conclusions on
reasonable claims with less disputes. An Adjusted as-
built CPM technique may be specied in the contract or
in guidelines/codes of practice to substantiate the claims
if 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 dierences were observed between
their views that may have arisen from their present
work aliations (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,
unquantied 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 Hong
Kong, 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 dicult
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 eects of the event are known
26
Engineers initial assessment/award 36
Total 1525
M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738 35
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 oat 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 eciency/ineciency;
2. contractors additional eorts (or otherwise) to
recover non-excusable delays;
3. over-estimation of the production rate (for as-
planned durations);
4. dierent production rates for old and new plant;
5. dierent output rates from dierent gangs of
labour; and
6. dierent output rates for similar activities due to
weather/ climatic inuences.
A pragmatic approach would minimise the disputes
arising from diering perceptions of the above con-
siderations, i.e. by providing clear guidelines, owing
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. It
would 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 specied 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 specied 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 sta. 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 reect the
earlier pragmatic considerations with specied time
frames for submissions of details and assessment. It is
noted that the time frame specied for submitting noti-
ces of claims is not sucient 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 ecient 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 dicult to take account of the eect of an
excusable event on the progress of works in an interim
assessment
Actual progress could involve both the eects of non-excusable and excusable
events as well as the contractors eort to recover non-excusable delays.
Equitable assessment can be reected 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 dicult to elicit in relation to covered up works, and
poorly documented events
36 M.M. Kumaraswamy, K. Yogeswaran / International Journal of Project Management 21 (2003) 2738
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 rst-
order estimate of a possible extension of time. Further-
more, large scale projects with sucient 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-specic technique may be
chosen from a tool-kit according to preset guidelines.
The urgent need for such guidelines is underlined by
the evident confusion and shortfalls in the choice of
EOT evaluation techniques and the disputes arising
from the applications of dierent 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-specic 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 denitive recom-
mendations on specic 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-
specic as in the case of particular measures related to
Hong Kong, or more general in the case of a broader
range of applications.
Specic 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 exibility 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 Construction
Industry Institutes in USA or Australia or the European
Construction Institute. In addition, each construction
organisation could, and should, develop its own policies
and organisation-specic strategies and procedures that
will expedite the ecient and reliable substantiation and
evaluation of extension of time entitlements on its own
projects.
Acknowledgements
The reported study is supported by a CRCG research
grant 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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