Often, the contentious issue between an Employer and Contractor is how to determine which party holds the responsibility for any given delay or disruption event.  Typically, it is not that the disputing parties refuse to recognise the delay or disruption event as a matter of fact.

As all construction projects are different, similarly, there are no two construction contracts that mirror each other.  Even standard forms of construction contracts are amended, whether heavily or lightly, to reflect the peculiarities distinct to any given project.

Such inconsistency presents a challenge for the Contractor as the burden is on him to demonstrate that he has abided by his obligations under the construction contract. Otherwise, the Contractor will suffer sanctions in the form of damages (in common law jurisdictions) or penalties (or both, in civil law jurisdictions).

This challenge for Contractors is heightened because the on-site personnel, i.e. those who are best placed to have the most awareness and ability to control the causes of delay, are generally not sufficiently experienced in contract administration to take precautionary or preventative steps to most effectively protect the Contractor’s interests.

Contractors need to ensure their teams:

• are aware of when and how to issue notices and understand the relevant conditions precedent, such as time bars, and whether the event in question is a continuing delay and to understand the implications.
• Understand the quality of information that needs to be recorded and to be communicated upstream to the Contractor’s management team.
• Issue contemporaneous communications that identify the affected activities.
• State the reasons why activities have been affected.
• Record the resources impacting the activity and those required to rectify the delay, including references sketches, taking photographs etc.

But the responsibility doesn’t fall entirely on the shoulders of the site team. The management team must ensure they can quickly and accurately recall their planned productivity rates (and the calculation methods) for all the critical work activities, whether at tender or at every other relevant point in time throughout the Contractor’s involvement with the project.  Contractors must maintain credibility and be able to account for reduced productivity, discrepancies, and irregularities in general.

From the Employer’s side, irrespective of the form of contract, it is crucial to be aware of their various duties under the law to notify and to warn the Contractor to ensure their expressed rights are not compromised.

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