The recent case of White Constructions v PBS Holdings is a salutary lesson in the over-reliance on planning software in determining delay.
To clarify; we are not criticising the excellent work done by delay analysis experts. Delay analysis based SOLELY on software has a place in commercial claims.
However, we simply caution that its limitations need to be fully understood and expectations set appropriately especially if the issue starts to escalate towards formal dispute.
Understand the limitations.
Our suggestion is – don’t fall in love with it. That is an easy trap to fall into sometimes (especially if the results support your position).
As observed by the court in this instance, the expert reports were ‘complex’ and ‘to the unschooled, they are impenetrable’. The methodology ‘assumes causation rather than identifies actual evidence of it’.
I was once involved in a dispute where we had three different delay analyses. The main contractor’s, the expert’s analysis (based on the main contractor’s schedule ‘corrected for deficiencies’) and the subcontractor’s analysis.
Three different computers providing three different versions of reality!
Similarly, the industry has become over reliant on the SCL Protocol as authority for the use of any given delay methodology. The Protocol itself makes it clear it is ‘for guidance only’ stating that the nature, scale, and level of complexity of any given project should determine the appropriate method.
Every situation is unique. The approach should reflect that.
Never lose sight of the fact that each situation is unique – being a combination of a unique contract and a unique set of facts, requiring a unique approach especially with regards to risk assessment and prospects of success.
In the next article on Delay Analysis, we will try to provide some practical advice.