CASE STUDY | ADJUDICATION | NEC3 ECC | HIGHWAYS

The Employer referred the final account to adjudication, levying delay damages and claiming the contractor had been overpaid. The adjudicator found for the contractor on a change to the Completion Date (extension of time), in a decision worth c.£0.7m. The delay analysis behind that result was prepared by Sumit Bhattacharya MAPM, engaged as planning consultant to the contractor through S B Project Controls Limited, which trades as VERTX Project Controls.

At a glance

Client	Tier 1 civil engineering contractor (Responding Party)
Employer	Local highway authority
Contract	NEC3 ECC Option B, c.£5m
Programme	Planned completion early 2018; completion certified more than 6 months later
In dispute	Final account, 17 compensation events, extension of time, delay damages
Role	Planning consultant to the contractor: planning and delay analysis from the first CE through to the adjudication response
Outcome	Decision for the contractor worth c.£0.7m; delay analysis upheld

The project

A junction improvement on a heavily trafficked strategic route in South East England. The works covered new lanes, drainage, safety barrier (VRS), street lighting, traffic signals and night-time surfacing, delivered through 8 traffic management phases, with a third-party network operator controlling access to part of the site.

The job ran into the usual mix. A water main was found in the dig and had to wait for diversion by the utility. Drainage was redesigned after a CCTV survey. Network availability was pushed back by the third-party operator. The central reserve VRS was redesigned mid-job. Late PMIs continued through summer 2018. The CE register passed 120 events.

The dispute

After completion, the Employer levied delay damages and took the final account below the sums already paid. Its time position rested on assessments by the PM and its planning consultant. For the main utility CE, the consultant used the first Accepted Programme from November 2017, with no progress and none of the earlier CEs in it, rather than the Accepted Programme current at the dividing date. For 5 of the late CEs, there was no time assessment from the Employer at all.

The Employer referred the dispute to adjudication. On the contractor’s side, a response plan was in place within 2 days of the Notice.

The analysis

Built as the job went. The contractor maintained its programme from Rev 1 through to Rev 16, issuing clause 32 revisions throughout. Each CE was impacted into the programme current when it arose, updated for progress, at its own data date. Entitlement was established event by event, which is the approach the SCL Delay and Disruption Protocol recommends and the NEC expects. When the dispute came, there was a dated record for every event.

The Employer’s own analysis, taken apart. On the utility CE, 3 errors were identified and put to the PM in writing in April 2018:

• a calendar day count out by more than 2 weeks;
• the utility’s physical works modelled as finishing on a planned date, 4 weeks before they actually finished;
• activity durations cut back using price-book outputs, overriding durations in the programme the PM had already accepted.

The Employer’s consultant issued a corrected analysis the next day. Completion moved 22 days, to the date the contractor had set out. By the time of the referral, the Employer’s own valuation of that CE had risen 56%.

8 days netted off, unproven. On the VRS redesign, the PM awarded 4 days, after treating 8 days of existing negative float as the contractor’s own delay without establishing what caused it. The contractor’s analysis showed a further 17 days. In its Notice of Adjudication, the Employer adopted the contractor’s date and cut its own delay damages claim from 53 days to 43, before the adjudicator had ruled on anything.

Risk shown openly. Two versions of the VRS assessment were built, with and without a 4-week allowance for failure risk. The version without it was put forward, so the entitlement stood on events that could be proved from the records. As the event was assessed after the fact on actual records, a forecast risk allowance had no place in it.

Time tied to cost. Timesheets and plant registers were collated against each delay period so that the time case carried directly into Defined Cost.

The outcome

The adjudicator found for the contractor on extension of time and upheld its delay analysis. The decision was worth c.£0.7m to the contractor, on a contract of c.£5m. The Completion Date was extended in line with the EOT claim, and the Employer’s delay damages claim fell away.

What this means

For contractors and subcontractors. EOT disputes in adjudication are usually won or lost months earlier, on the quality of the programme record. A properly maintained clause 32 revision history, with each event impacted at the time, gives an adjudicator something to hold on to. A retrospective rebuild prepared under a 28-day timetable is far harder to defend.

For solicitors. Native programme files, a traceable audit trail from notification to impacted programme, and written analysis that engages point by point with the other side’s planning evidence. Prepared to adjudication timetables.

How VERTX can help

• Delay analysis and EOT / CE time assessments under NEC3, NEC4, JCT, FIDIC and bespoke contracts
• Critical review of the other party’s programme and delay evidence
• Adjudication delay expert support for Referring and Responding Parties
• Programme record set-up and maintenance so entitlement is built during the job

Project details are anonymised. The analysis described was prepared by Sumit Bhattacharya MAPM while engaged as a planning consultant to the contractor through S B Project Controls Limited, now trading as VERTX Project Controls.