SCL Delay & Disruption Protocol: 10 years on
Published by Construction Law Journal 2013
Author: David Barry
The SCL Delay and Disruption Protocol 10 years on. On April 16, 2013, the Society of Construction Law’s Delay and Disruption Protocol held its 10th birthday bash. With Lord Justice Jackson as moderator and a host of distinguished members of the original drafting committee taking to the podium, it promised to be an evening of tribute and celebration. The problem was they also invited me to the podium.
Back in the early noughties, I was one of the more vocal critics of the SCL Protocol. I had felt like the unruly child from the Hans Christian Andersen fairy tale, who shouted out that the emperor’s not wearing any clothes! I was lonely in those days, but not anymore judging by the votes at the end of the conference. The protocol has two areas of influence in the construction industry. The project stage and the post contract/forensic stage.
The key weakness in the protocol, for me, is that it was all drafted through the prism of dispute avoidance. Noble certainly, but the primary purpose of a programme management system should not be dispute avoidance; the purpose should be effective, efficient and practical project delivery. Dispute avoidance will be a by-product of such a system, not its core principle (to use a much loved protocol term).
Unfortunately, I think the guidance is impractical, not least because it overuses and overvalues the benefits of programming software and, much like the NEC suite of contracts, the contractors’ and owners’ teams find it difficult to keep up with its programmatic demands. It just does not work as a holistic project, or programme management system, but that is not to say that it does not contain some excellent ingredients, such as certain of its definitions, programme specifications and record-keeping recommendations. So has it been adopted? In the last 10 years, I have not encountered first hand one single instance where it has been adopted, albeit at least one project was mentioned in dispatches during the celebrations. But with over one hundred interested parties in attendance at the anniversary conference and 10 years of track record, the lack of uptake during the project stage was indeed telling.
Turning to the post/contract dispute resolution stage, I can say with certainty that the protocol’s guidance has proved much more popular. I have encountered the protocol’s recommendations extensively during the last 10 years, albeit in ever-decreasing amounts.
The SCL Protocol is the prime and principal authority used to support the use of a prospective delay analysis in a post contract dispute, and it is in this area that I’m afraid the protocol has unfortunately delivered the opposite effect to its noble objectives.
In my opinion, the SCL Protocol has had three unfortunate and somewhat counterintuitive effects:
- it has promoted an increase in disputes, not a decrease;
- it has encouraged postponement of EOT assessment; and
- it has increased the cost of dispute resolution (in arbitration and litigation).
Its recommendations have provided fuel to the most tenuous and unlikely EOT assertions and arguments. Armed with a time impact analysis, the average forensic planner can easily make out the case for a 12-month EOT on a project which was only six months late. The protocol’s inappropriately strong endorsement of the time impact analysis method of delay analysis within the post contract dispute environment has infused claimants with an undue confidence in their theoretical entitlements to EOTs. So much so, they sometimes are prepared to arbitrate, or litigate to secure the treasure that the protocol promises. The result the protocol has led to more disputes, not less.
The protocol tells us that EOTs should be assessed contemporaneously and timeously on the basis of the delay which is likely as a consequence of the event. I agree. However, the protocol’s post contract recommendation then undercuts its own guidance. The protocol tells us that we can still do the contemporaneous analysis, even years later. So contrary to the guidance, there is no imperative to do the assessment contemporaneously, since one is at full liberty to do it even years later and when the issues are less fresh in the opponent’s mind. The result the protocol encourages the postponement of the assessment. In revising the protocol, this would be the first thing I would change; i.e. if a prospective impact assessment is not carried out contemporaneously, then one should lose the right to apply it after the fact. Certain popular contracts would benefit from a similar adjustment.
The protocol fairly admits that its recommended time impact analysis approach is generally the most time-consuming and costly of the forensic delay analysis techniques. The protocol also admits that its method is only good for proving EOT entitlement, and therefore cannot be used to establish liability for the costs of actual delay. So, despite having carried a very expensive time impact analysis, one has to do a whole separate analysis to recover delay costs. The result the protocol has led to increased costs of dispute resolution, not a decrease.
Finally, the protocol suffers from a glaring omission in that it goes to the trouble of listing the various methods of delay analysis, and yet fails to identify three of the most widely used and popular techniques the two methods of windows analysis and the technique known as longest path method.
The SCL Delay and Disruption Protocol is to be congratulated for some of its technical content, its laudable idealism and for stimulating debate on programming issues. However, 10 years on, it should (in my view) be either confined to a dusty archive, or substantially revised and updated.
This article is based on a talk given at the SCL Delay and Disruption Protocol Ten Year Anniversary Conference, held on April 16, 2013.