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FEATURED INSIGHTS

Common Pitfalls when preparing a Delay Claim

In construction disputes many Extension of Time (EOT) claims fail not because the delaying events lack merit but because the analysis is technically flawed or unsupported by evidence.

A strong delay claim requires more than simply showing that delay events occurred. It requires a detailed analysis supported by contemporaneous records, appropriate delay analysis methodology and a clear demonstrable link between cause and effect.

The table below highlights seven of the most common mistakes observed in EOT claims, presented in the form of Do’s and Don’ts Matrix.

Delay Analysis: Key Do’s and Don’ts Matrix
Topic DO’s DON’Ts
1. Baseline Programme
  • Use an approved and logically linked baseline.
  • Ensure it reflects the contractual completion date and any interim contractual milestones.
  • Use the Approved Baseline Programme as the reference against actual progress to measure any deviations.
  • Rely on an unapproved or “for information only” baseline.
  • Use programmes with broken logic or excessive constraints.
  • Use Target or Look Ahead Programmes as the reference against actual progress to measure any deviations.
2. As-Built Records
  • Use programme updates, progress reports, minutes of meetings and correspondence.
  • Ensure records reflect actual site progress.
  • Rely on narratives without evidence.
  • Ignore inconsistencies in records.
  • Selectively present or manipulate as-built data.
3. Critical Path Impact
  • Demonstrate impact on the critical path.
  • Analyse float properly.
  • Show how the delay impacted the completion.
  • Focus only on delayed activities without demonstrating their critical impact on completion.
  • Assume all delays are critical, ignoring available float.
4. Concurrency
  • Identify overlapping delays accurately.
  • Analyse periods of concurrent delay.
  • Ignore parallel delays caused by the other party.
  • Avoid analysing concurrency because it decreases the claimed excusable delay.
5. Selection of Methodology
  • Select a methodology suitable for the project status and the available records.
  • Align with recognised guidance (SCL, AACE).
  • Use retrospective methods for completed projects and prospective methods for ongoing projects.
  • Apply prospective methods (TIA, Impacted As-Planned) to completed projects.
  • Select a method solely for a favourable outcome.
6. Application of Method
  • Use correct data comparisons (use late planned dates, not early planned dates).
  • Maintain logical consistency and apply common sense in the delay analysis.
  • Compare actual dates to early planned dates in the delay analysis.
  • Assume all activities are critical or alter float to inflate the claimed delay.
7. Cause and Effect
  • Link each delay event to specific impacted activities.
  • Demonstrate clear critical path effect.
  • Support narrative with data, logic and evidence.
  • Make broad or “global” claims.
  • Present conclusions without programme evidence.
  • Rely only on arguments or delay events chronology without technical proof that these delay events had a critical effect on the completion.

A strong delay claim is not built on the volume of documents or on massive arguments, but on logic, sound methodology and technical reliability.
To summarise the above, a defensible delay analysis requires:

  • A reliable and approved baseline
  • Robust contemporaneous as-built records
  • Clear demonstration of impact on the critical path
  • An appropriate and properly applied methodology
  • A clear demonstrable cause-and-effect narrative and link

When these elements are present, a delay claim becomes credible and robust. When they are absent, even a valid claim can be challenged or rejected entirely.
The strength of a delay claim does not rely on the story told but on the evidence and methodology that support it.