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Delays in construction Contracts are inevitable and often vexatious; due to this, the need for submission of robust Extension of Time Claims using industry-standard Delay Analysis Techniques has gained utmost importance in the industry.

One of the significant processes in carrying out a meritorious Delay Analysis Technique is identifying the critical delay event. This commences with establishing the “occurrence date” of the delay event.

In construction, an "occurrence" refers to any happening or event that impacts a project's progress, cost, or quality. It can be an unforeseen circumstance, change, or disruption that deviates from the original plan.

The process of delay event identification and delay occurrence is often interrelated. There are mainly two approaches used in the identification of the delay: a) Cause and Effect-based approach, b) Effect and Cause-based approach (1). The later sections of this document focus on the cause-and-effect-based approach.

Dates are crucial in construction delay analysis as they establish timelines, identify delays, and pinpoint when events occurred, which is essential for determining cause-and-effect relationships in project schedules and many other parameters.

“Dates are important in history because what is done on those dates is of importance.”— Amit Abraham

Understanding the “Occurrence date”

In simple terms, it means the date on which a particular event happened. It includes both the commencement date of the event and the conclusion date of the event. 

In terms of planning, an event usually represents a milestone.  A delayed activity is often associated with a series of logically linked sub-activities termed as “Fragnet,” which is inserted and logically linked into the relevant programme and based on various additive models (2), the delay analysis is carried out.

The start and end of the fragnet usually represent the “Occurrence dates”. These dates should be substantiated well with contemporary records.

Why is the Occurrence date significant?

The occurrence date of the event is indispensable in the delay analysis and EOT claims, due to the following:

• It determines the “Start of Notice period” based on which timely notices must be given by the Contractor under the Standard conditions of Contract (Time barring clauses). (3)
• It determines the data date to which the programme must be updated, to check the impact of the delay event using Time Impact analysis. (4)
• It determines the start and end of window periods, based on which the window-based analysis can be carried out.
• To accurately assess the impact period, based on which the Quantum calculations can be worked out for the Prolongation.
• It helps in determining the delay responsibility.

Key factors to consider when establishing the Occurrence date 

a) Contractual provisions:

The occurrence date of the delay and the notice period commencement are intertwined.

The occurrence of delay, from which the period of notice is to run, and the delay event analysis must commence, differ from form to form of Contract.  In some, it is a delay to progress, irrespective of its consequences; in others, it is a delay to progress only if it is caused by an excusable event; others require only the occurrence of the excusable event itself, and some ask only for the likelihood of a delay to the completion of the works.

A few examples of varied contractual provisions are as below:

• In some JCT form of Contracts, the Contractor is required to give notice forthwith, so as soon as it becomes reasonably apparent that the progress of the works is being, or is likely to be, delayed.
• Some form of FIDIC Contracts require that notice of the occurrence of an excusable event and requires it to be given “within 28 days after such event has first arisen”.
• On the other hand, some HK types require notice to be given “within 28 days of the commencement of an excusable event”.

Where no specific period is stated within which notice is to be given, what will constitute a reasonable period will not only depend upon the nature of the event, but also the purpose of the notice, that is, whether it is for relief from liquidated damages, or for recovering loss and expense.

The Contract provisions should be very explicitly drafted to avoid any contention. The Contractor should be aware of when he needs to consider the occurrence of the delay, based on which the contractual recourse can be initiated.

Establishing that an event has occurred and calculating a delay period therefrom may not always be as straightforward in practice as might in theory be supposed. It is evident that the Contractual terms play a significant role in establishing the occurrence date of the delay event

b) Contemporaneous records:

The other factor which affects the determination of the Occurrence date is contemporaneous records. This includes, but is not limited to the following:

• Programme records
• Correspondence
• Contract and tender documents

In the absence of certain correspondence, reference can be taken to relevant programme records and the associated floats, based on which the occurrence dates can be established.

How do the Tribunals deal with this?

The following are some of the scenarios related to court cases wherein the occurrence dates have been interpreted in different ways.

Case 1:

In the Supreme Court of Queensland in the case of Queensland v Multiplex (5), which concerned a provision of AS2124 stating:

“If the Contractor desires an extension of time for practical completion, the Contractor shall, within 28 days after a delay occurs, give the Contract Administrator a written claim setting out the facts on which the claim is based.”

The court had little difficulty in concluding that the “delay” that “occurs” in this sense was not the causative occurrence, but the delay to progress flowing from it and, although the court at first instance thought that the operative delay occurred when it had ceased, on appeal, the delay was construed as occurring when it first started.

Case 2:

In Lee Masonry (6), in which the contract required that the Contractor was to give notice no later than 30 days “after the occurrence of the event giving rise to the claim”, the Tennessee Court of Appeal upheld the opinion of the lower court that for an extension of time, the trade contractors had 30 days after the occurrence ended, not started.

On this basis, the lower court had concluded that because of the cumulative nature of the delays and disruptions that had occurred over the course of the project, “the occurrence was ongoing and did not end until [the trade contractors’] work ended.”

As mentioned in Section 4, inclusion of explicit provisions in the Contract will remove any ambiguity in the interpretation of the Contract.

Conclusion

In Summary, establishing the occurrence date of any delay has a vital role in the delay analysis. It helps to determine the impact of the delay on the project schedule and facilitates delay analysis. Accurate documentation of the occurrence date is essential for understanding whether a specific event affected the project's overall completion date.

References:

(1) AACE International Recommended Practice 29R-03 Forensic Schedule Analysis, Source Validation Protocol (SVP) 2.4

(2) AACE International Recommended Practice 29R-03 Forensic Schedule Analysis, Method Implementation Protocol (MIP) 3.6 and 3.7

(3) Example: Clause 20.2.1 of FIDIC Conditions of Contract for Building and Engineering works designed by the Employer 2017.

(4) AACE International Recommended Practice 52R-06, Prospective Time impact analysis.

(5) State of Queensland v Multiplex Constructions Pty Ltd (1998) 14 BCL 329.

(6) Lee Masonry, Inc, No M2008–02844-COA-R3-CV (2010) Tenn Ct App