1. Early Intervention

The consultant’s responsibility begins long before a claim is formally submitted.  Timely and accurate responses to the contractor notices and queries ensure the project remains on track and help prevent disputes. The consultant should also provide adequate responses to the contractor’s delay notices.

• Reviewing Schedule Updates: Regular and timely evaluation of the contractor’s schedule submissions is essential. This also includes verifying baseline schedules, actual progress and schedule changes.
• Reviewing daily, weekly and monthly reports: Review and respond to any sections where the contractor mentioned inaccurate excusable delays. The response should be substantiated with documents.
• Documenting Events: Maintaining a detailed record of project correspondence, schedules, and progress photos allows consultants to establish its own timeline of events.

Timely responses to notices and schedule submissions are critical. If the consultant delays responses, say by a year or more, the contractor may argue that the lack of objection implied consent which makes the delayed response invalid. This can weaken the client’s position, resulting in unfavourable outcomes in disputes.

2. Reviewing Claims

When a contractor submits a claim, consultants conduct the review which typically involves the following:

2.1. Reviewing Submitted Documents

The contractor’s claim often includes a package of supporting documentation such as:

• Correspondences and notices.
• Updated schedules
• Causation and delay analysis
• Narrative Report

The consultant’s first task is to confirm whether these documents align with the contractual requirements. For example, was a notice submitted within the stipulated timeframe after the event occurred?

2.2. Delay Analysis

Every delay analysis method has its own advantages, disadvantages, strengths, weaknesses, uses and limitations. First, ensure that the selected method is appropriate. Otherwise, if the method is not suitable for the project circumstances, the whole claim can be thrown out of the window. For example, in a large complex project, you’d better have a very good reason for why you would choose weak methods such as Impacted-As-Planned in your analysis.

2.3. Counter-arguments

The consultant often reviews the contractor’s claim submission as it is. In other words, the consultant is in the defence mode. However, consultants are recommended to prepare counter-arguments. For example, the consultant can prepare its own delay analysis, identify contractor’s risk events and even create fragnets that evaluate the contractor’s delays. In these cases, it is not uncommon to have a claim response that is bigger than the claim itself.

2.4. Drafting the Outcome

The outcome of the review typically falls into one of three categories:

1. Approved: The contractor’s claim is valid and accepted, either fully or partially.
2. Rejected: The claim lacks merit due to non-compliance of the contract, lack of evidence, misrepresentation of facts, poor delay analysis or unfair data manipulation (very common by the way).
3. Further Clarification Required: The consultant requests additional information from the contractor (e.g. missing some P6 XER files).

3- Timely Responses

If a consultant fails to respond to a schedule update or notice promptly, this could weaken the client’s case. The contractor may argue that the delay implies acceptance of their claims or position. Moreover, regular schedule updates and progress reports are required for a good reason which is to help project parties understand the progress status and take an appropriate action based on what they see in the report. Therefore, if the consultant took one year to respond to a schedule update, the response  doesn’t really help anyone at this stage. As a result, most contracts require notices and claims to be submitted within strict timeframes. Contractors who fail to comply with these requirements risk their claims being rejected entirely. Late submissions – whether by the consultant or the contractor often result in unfavourable outcomes to the responsible party.

Contractors sometimes believe that submitting claims at the end of the project without notices will be just as effective as timely submissions. This approach is Naïve: The lack of timely notices as required by the contract can invalidate claims entirely. In practice, notices are meant to inform all project parties of potentials delays and encourage them to work together and mitigate the impact. Waiting until the end of the project ignores the importance of contemporaneous records and notifications which will make the claim open to significant challenge by the opposition.

Regards,

Osama Saad, MBA, PMP, PSP, CCP, PMI-SP

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The post Construction Claims Responses: The Consultant and Client Perspective appeared first on Smart PM Blog.

In this article, I will explore the common pitfalls in submitting delay claims and how to avoid them to strengthen your position.

1. Failing to Issue Timely Notices

Many contractors overlook the importance of issuing notices immediately after a delay-causing event. Most contracts stipulate strict timelines for submitting notices, and failure to comply can lead to losing entitlement or result in disputes. Reviewing the notice provisions in your contract is a key step. Contractors can create a log to track delay events and send notices within the contractual timeframe. This practice should be a part of your delay management system.

2. Incomplete or Poorly Developed Narratives

A narrative should clearly include cause, effect, and entitlement for the delay events. Vague narratives make it difficult for the consultant or client to understand the event nature and evaluate the claim. A clear narrative should explain

• • What happened?
  • Why did it happen?
  • When did it happen
  • The Chronology
  • What is the contractual basis for the claim?

A claim must be rooted in the contract so link the narrative to relevant clauses. A claim means that the Employer/Consultant failed to fulfil a part of its contractual obligations and the contractor is seeking reimbursement (e.g. extension of time, relief from liquidated damages, additional costs incurred, etc) so make sure that you refer to any relevant clauses.

3. Lack of Supporting Evidence

A claim without documentation is like a story without proof. Common missing items include correspondence, daily reports, MOMs, photos, and other documents such as RFIs, WIRs and MIRs that substantiate the claim. Planning engineers live and breathe the project everyday so it is tempting to assume that the reviewer knows what you know. However, it is not uncommon to have mediation, arbitration and litigation in your project so always assume that the reviewer has no prior knowledge or familiarity with the project. Substantiate everything!

4. Inappropriate Delay Analysis Methods

An effective delay analysis starts with a reliable baseline and well-maintained schedule updates long before the claim is submitted. Therefore, take the time to produce high-quality baseline and schedule updates where the actual progress is consistent with the daily report data. Moreover, ensure compliance with the scheduling best practices which includes, reviewing the out-of-sequence, absence of open-ended activities, etc. When you perform a delay analysis, selecting an appropriate delay analysis method is a key step. Each method has advantages, disadvantages, uses, limitations, strengths and weaknesses. If you choose inappropriate method, your whole claim might be thrown out of the window. There are two main references  that cover the delay analysis methods in our industry. These references are: the delay and disruption protocol, 2nd edition published by Society of Construction Law (free for the public) and the RP-29R-03 – Forensic Schedule Analysis published by AACE (free for members only). Although these references are not contractually binding, they are a strong peer review so you can build your case on them. I also recommend that you explain why you selected a specific method and why it is more relevant to your case compared to other methods.

5. Overstating and understating Entitlements

Some claims fail because they overestimate the time or cost impact of the delay. Overstating can lead to disputes, while understating can leave time and money on the table. Delay analysis is both an art and science so take your time to learn it. Ensure that your analysis is based not only on the schedule data but also on logic, facts and common sense.

6. Submitting Claims at the End of the Project

Submitting delay claims long after the delay event has occurred is a common mistake. Delayed submissions reduce the chances of approval and increase the likelihood of disputes because:

• Evidence may no longer be available.
• The claims weren’t submitted promptly after the event, in compliance with the timelines set in the contract.
• One key benefit of submitting claims promptly during the project is keeping the client informed about delay events and their potential impacts. This allows the client sufficient time to evaluate the situation and take any necessary measures. For example, the client may decide to expedite material delivery via air freight and reimburse the contractor for the acceleration because it is a more cost-effective solution than the potential profit loss that will result from the delayed facility operation. On the other hand, submitting claims only at the end of the project doesn’t give the client and consultant the opportunity to deal with the project delays which may lead to greater losses and missed mitigation opportunities.

8. Ignoring Consultant Feedback

Consultants play a key role in the review process and you need to incorporate or respond to their comments – whether on the claim submittals or their interim responses to the schedule updates submissions and correspondences (e.g. official letters).

9. Neglecting Professional Presentation

A poorly organized claim with ambiguous or hard-to-read data can easily frustrate reviewers. Never assume that the reviewer will do the work to decipher unclear information for you. Here’s an overlooked point: reviewers may be fair and experienced practitioners but they are also human. They might give you the benefit of the doubt but low-quality submissions can frustrate them and put them in a bad mood which may influence their decision-making process. A clear, substantiated, structured and well-written claim is not just a courtesy—it’s a key winning strategy. Make sure that you use a professional format with clear sections for narrative, evidence, delay analysis, supporting documents, conclusion and executive page for quick reference.

Conclusion

Submitting a strong delay claim requires more than just identifying a delay. It demands timely notices, supporting documentation, accurate analysis, and compliance with the contract clauses. By avoiding these common pitfalls, you can significantly increase the likelihood of your claim approval, minimize disputes and protect your entitlements.

Regards,

Osama Saad, MBA, PMP, PSP, CCP, PMI-SP

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The post Common Pitfalls in Submitting EOT Claims appeared first on Smart PM Blog.

1- Early Notification

Most modern contracts give the Contractor 30 days after the event has first arisen to submit the notice. However, the Contractor can notify the Client immediately once the delay is identified to allow for quicker resolution and planning instead of waiting for as long as the Contract allows to notify the Client. Make sure to show this effort in the event chronology.

2- Alternative Resource Allocation

Reallocate labor, equipment, and materials from less critical areas to the delayed project activities to reduce impacts. Explain this effort in your reports, correspondences, MOM and other communications.

3- Acceleration of Remaining Work

Increase the number of shifts, work overtime, or expedite materials delivery to make up for lost time. However, the Contractor is not expected to incur additional costs to mitigate the excusable delays unless this is directed from and reimbursed by the client.

4- Engage Additional Subcontractors

Bring in extra subcontractors to handle specific or specialized activities to speed up the work that has been delayed.

5- Re-sequence Work Activities

Modify the sequence of planned work so that delayed activities can be carried out in parallel with unaffected tasks. You can also develop a recovery plan to present the mitigation effort. Contractors can explain how the implementation of these techniques mitigated the delay throughout the project. However, you must be very careful when you communicate any intended effort to mitigate the delay to the client. In my opinion, the contractor should not submit a recovery plan if the excusable delays are significant. Submitting a recovery plan demonstrates the feasibility or possibility of completing the project on time. The problem is that Contractors sometimes prepare unrealistic recovery plans with the sole purpose of responding to the client’s request even though it is not feasible to complete the project on time anymore. This can be used against the Contractor when the claim outcomes are negotiated.

6- Procurement Adjustments

Expedite the procurement process to get materials, equipment, or permits delivered faster, compensating for lost time.

7- Increase Communication and Coordination

Enhance coordination and communication between project stakeholders to ensure timely decision-making during delays. Although regular communication is expected throughout the project, contractors are expected to “increase” the frequency of communication regarding the delay events to allow for quicker resolution.

8- Optimize On-site Logistics

Rearrange site logistics to ensure that resources and materials are available as soon as needed to avoid further disruptions.

9- Adopt Technological Solutions

Use advanced construction technology, like BIM (Building Information Modeling) or drones, to speed up inspections or updates.

10- Negotiate Early Deliveries

Negotiate with and request the suppliers/subcontractors to expedite the delivery of critical materials or equipment. You can attach these communications as a part of the claim supporting documentation to show your mitigation effort.

11- Optimize Workforce Productivity

Conduct internal meetings with the site team to enhance workforce productivity, reducing the time it takes to recover from the delay. You can attach the MOMs of these internal meetings as a part of the claim supporting documentation to show your mitigation effort.

12- Weather Contingency Planning

Plan the completion of critical outdoor activities to be completed outside the adverse weather season (e.g. the heavy snowfall during winter in Canada or the summer heat in the UAE.)

13- Collaboration with the consultant

Engage closely with the consultant to fast-track approvals. Discuss the delayed activities in the progress meetings and through official correspondences.

14- Fast-Track Design Changes

Collaborate with the consultant to implement necessary changes more quickly, reducing design-related delays (RFIs, request to conduct technical meetings, etc).

15- Early Submission of Documentation

Submit documentation, such as permits or approvals, earlier than required to avoid processing delays.

16- Anticipate and Plan for Seasonal Delays

Implement seasonal planning measures for potential disruptions by adjusting the work schedule around high-risk periods (e.g. expected low productivity and fewer working hours during Ramadan).

17- Use of Contingency Planning

Have contingency plans in place to address possible delays such as pre-arranged contracts with backup suppliers or subcontractors (e.g. Show that you have shortlisted three suppliers who are prepared to execute the related scope if the main supplier fails to meet the contract requirements.)

18- Expedited Inspection and Testing

Arrange for expedited inspections or testing to ensure that quality checks do not cause unnecessary delays. Collaborate closely with the consultant to perform inspections and obtain approvals to avoid further delays. Show this effort in the claim.

19- Update and Use Advanced Analytics System

Implement advanced reporting systems to predict and model potential delays, allowing proactive adjustments to the project timeline. Advanced project control systems allow for a quicker and more effective analysis which will support decision-making.

20- Engage in Collaborative Dispute Resolution

Use collaborative approaches like mediation with the client to quickly resolve disagreements over delays and minimize the potential impact on project progress. you don’t need to wait until the project ends to work with a mediator. If there is a dispute throughout the project, a mediator can help the contract parties settle disputes and save a lot of potential time and cost.

Conclusion

Mitigating schedule delays, even when they are beyond a contractor’s reasonable control, is critical for maintaining project integrity and protecting the claim effort. By proactively documenting delays and collaborating with stakeholders, contractors can demonstrate their commitment to minimizing impacts and avoiding potential disputes. Effective delay mitigation ultimately benefits all parties involved and contributes to the successful completion of projects.

Regards,

Osama Saad, MBA, PMP, PSP, CCP, PMI-SP

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The post 20 ways to show mitigation for excusable delay appeared first on Smart PM Blog.

• Ambiguity in acceptable mitigation
• Why can’t the delay mitigation requirements be clear?
• Defining “reasonable” mitigation efforts
• Delay mitigation proof

Ambiguity in Acceptable Mitigation

Subjectivity of Reasonableness

Most contracts use language like “reasonable efforts” or “best efforts” to define delay mitigation. These terms are inherently subjective and can vary depending on the context of the project, the nature of the delay, and the available resources. What constitutes “acceptable” delay mitigation is often left to interpretation and negotiation.

Project-Specific Factors:

The acceptable level of mitigation might depend on factors such as project complexity, available technology, site conditions, and cost implications. It may not be practical to define a specific percentage (e.g., 50%) or time frame (e.g., one month) because of the varying nature of projects and delays.

Why can’t the delay mitigation requirements be clear?

Flexibility for Different Situations:

Setting a rigid standard for delay mitigation might not account for the wide variety of delays that can occur in construction projects (e.g., weather conditions, supply chain issues, labor shortages). By keeping the clause flexible and somewhat ambiguous, both parties have room to negotiate or adapt giving both the client and contractor room to negotiate on a case-by-case basis.

Insufficient Outcome

If the contract specifies a fixed amount of delay mitigation, there will always be attempts to tailor the circumstances and the analysis toward a specific outcome. However, it should be the other way around. You need to model the delay event first and then evaluate the corresponding impact.

Legal Leverage

In disputes, ambiguous terms like “reasonable efforts” provide a degree of legal leverage to both parties. It allows them to argue their case based on evidence, expert testimony, or industry standards, rather than being bound to a fixed, potentially inappropriate mitigation percentage.

Hidden Facts

There are two hidden facts around this area that nobody often talks about. First, a Contract Professional, not a Project Control Specialist, drafts the Contract. As delay analysis is an advanced topic even for planning engineers, the contract specialist attempts to avoid discussing excessive requirements around this topic in the contract and leave it there. Second, if the Client states unfair contractual requirements such as forcing the Contractor to mitigate 80% of the excusable delays, this implies that the contract wasn’t written in good faith. The word will spread, damaging the client’s reputation, and as a result, many contractors may choose to avoid entering into business agreements with them.

Defining “Reasonable” Mitigation Efforts

The effort should be proportional to the circumstances. Courts or arbitrators might assess factors like:

Cost of mitigation

Is the cost of mitigation proportional to the benefit it offers? Moreover, contractors are not expected to incur excessive costs in their mitigation efforts unless an acceleration is clearly requested by the Client.

Feasibility

Can the delay realistically be mitigated, or are there constraints like resource availability or site conditions? It is almost impossible to recover 6 months of delay in one week because of either resource availability or space constraints.

Impact on other project aspects

Would mitigation efforts cause disruptions in other areas of the project? For example, accelerating one part of the work might lead to logistical or quality control issues elsewhere.

Delay mitigation proof

A contractor can demonstrate its effort to mitigate schedule delays beyond its reasonable control by taking the following proactive measures:

The claim narrative

Have a separate section in your narrative report that explains your mitigation measures and the associated positive impact in detail.

Documenting Delays Thoroughly

Keep detailed records of the cause of delays, including evidence that the delays were beyond the contractor’s control (e.g., acts of God, force majeure events, or owner-related changes). This documentation should include timelines and communication with stakeholders (e.g. letters, MOM, photos that have date and time stamps).

Providing Timely Notice

Notify the client or relevant stakeholders as soon as the delay is identified and demonstrate that in the event chronology. Most contracts require prompt communication regarding potential delays, so adhering to this can help show the contractor’s commitment to resolving the issue.

Implementing Recovery Plans

In my opinion, the contractor should not submit a recovery plan if the excusable delays are significant. Although the Contractor is doing its best to minimize the delay, submitting a recovery plan demonstrates the feasibility or possibility of completing the project on time. This can be used against the Contractor when the claim outcomes are negotiated.

Engaging Stakeholders

Hold regular meetings with the project team, owner, and subcontractors to keep everyone informed and collaborate on ways to recover from delays. Demonstrate this effort in the MOM.

“A contractor that makes a minimal effort to mitigate the excusable delay may be penalized, while a contractor that takes proactive steps—even if not fully successful — will often be viewed more favorably.” – Osama Saad

Conclusion

While most modern contracts do a good job of clearly outlining technical and material requirements, the clauses surrounding delay mitigation remain vague and open to interpretation. This ambiguity often leads to disputes between contractors and clients. By ensuring that delay mitigation efforts are reasonable, documented, and proportional to the circumstances, contractors can protect themselves from legal or financial penalties.

The post Delay mitigation in construction claims appeared first on Smart PM Blog.

What is a delay?

A delay can mean different things to different people. A delay could be in:

• Critical or Non-Critical Activity Start
• Critical or Non-Critical Activity Finish
• Project Completion
• A milestone

Metaphorically speaking, a delay is an illusion – it doesn’t exist. Some plants grow slower than others. Some people eat slower than others. It takes time to go from point A to point B. Is there a delay here? No, it is just the natural course of execution. Humans, however, love to put labels and make a meaning of everything. A good example of that is labeling delays in construction projects. The only thing that allows us to determine a delay in construction is having a baseline schedule in place. Without a baseline, construction projects will, like everything else in life, just follow the natural course of execution. I wanted to give this introduction to emphasize the importance of the baseline schedule in identifying and managing project delays.

How do the majority of planning engineers manage schedule delays?

In my experience, many planning engineers intentionally make regular schedule changes in the schedule updates to recover the delays and show the project is on track. This is not a good practice. In fact, the schedule changes should be kept to a minimum, just enough to ensure the reliability of the schedule and not to recover the delays. Otherwise, the baseline becomes useless and hence, we lose the value of the only tool that helps us define delays. If we continue to show that the project is on track, why do we even need a baseline in the first place? When you forecast a delay, this suggests that there is something wrong and requires your attention. You might need to increase the manpower or expedite the material delivery.

How should we develop a recovery schedule?

When the delays become significant, it becomes very hard to follow the baseline schedule. This is when a recovery schedule is needed. A recovery schedule reflects the Contractor’s corrective actions and recovery measures to ensure the timely completion of the project. This may involve increasing manpower, crashing and fast-tracking for the remaining work of the contract to recover the delays. However, recovery schedules should not be frequently developed because in this case, you are making more changes to show the project is on track, which as I mentioned before, is not a good practice. For example, in a project that is 2 years long, it is not recommended to develop a recovery schedule every month but it might be a good idea to create one only when the delays have become significant in a way that makes it very hard to use the previous recovery schedule as a practical reference point. There are so many variables that should be considered to determine the need for a recovery schedule but I just wanted to give you an idea about the concept. The recovery schedule topic needs more than one article to fully explain it.

The scariest word in construction is “delay” because of the associated consequences that can include liquidated damages, job loss, prolongation cost, arbitration, court, market reputation, etc. Here are a few points that should be considered when a recovery schedule is developed.

– The recovery schedule should be developed when there is a significant delay and it becomes impractical to follow the baseline.

– The baseline schedule remains the ultimate and most important reference point for progress measurement.

– The progress can be reported against both the baseline and the recovery schedule to see how “effective” your recovery effort is. However, under any circumstances, the performance measurement against the baseline must be shown in all reports including the official submissions.

– Frequent recovery schedules should not be developed. Otherwise, the recovery schedules and the baseline lose their value. As a general practice in planning, schedule changes should be kept to a minimum.

Note that everything that has been discussed so far assumes that the delay is the Contractor’s responsibility. In other cases, the delay is beyond the reasonable control of the Contractor and it becomes impossible to complete the project on time. Therefore, an extension of time claim might be needed.

Embrace delays

The best way to overcome your fear of something is to face it. Instead of hiding behind some logic changes that will give you a temporary sense of relief, we should develop effective coping mechanisms and recovery measures. We should approach schedule delays with a healthy mindset. Take the time to analyze the situation and develop feasible corrective actions. Modern scheduling software tools such as Primavera P6 and MS Project have serious limitations in managing projects so you will eventually need to do a lot of work using other tools such as Excel or Power BI to support your recovery effort.

Regards,

Osama Saad, MBA, PMP, PSP, CCP, PMI-SP

The post Managing Schedule Delays appeared first on Smart PM Blog.

MIP 3.8: Collapsed As-Built, Single Simulation, Modeled, Subtractive.

MIP 3.9: Collapsed As-Built, Multi Simulation, Modeled, Subtractive, Periodic.

What will you learn?

• The Source Validation Protocols (SVPs) and the guidelines of both methods.
• How to perform the analysis STEP-BY-STEP.
• The advantages, disadvantages, uses and limitations of these methods.

Regards,

Osama Saad, MBA, PMP, PSP, PMI-SP

Learn More!

Check out our comprehensive courses

The post MIP 3.8 & 3.9: Collapsed As-Built Delay Analysis Method appeared first on Smart PM Blog.

MIP 3.6: Impacted As-Planned

What will you learn?

• The Source Validation Protocols (SVPs) and the guidelines of both methods.
• How to perform the analysis STEP-BY-STEP.
• The advantages, disadvantages, uses and limitations of these methods.

Regards,

Osama Saad, MBA, PMP, PSP, PMI-SP

Learn More!

Check out our comprehensive courses

The post MIP 3.6: Impacted As-Planned Delay Analysis Method appeared first on Smart PM Blog.

MIP 3.4: Contemporaneous “Split” (Bifurcated Contemporaneous Period), Observational, Dynamic.

MIP 3.5: Modified / Reconstructed Updates, Observational, Dynamic.

What will you learn?

– The Source Validation Protocols (SVPs) and the guidelines of these methods.

– How to perform the analysis STEP-BY-STEP.

– The advantages, disadvantages, uses and limitations of these methods.

Regards,

Osama Saad, MBA, PMP, PSP, PMI-SP

Learn More!

Check out our comprehensive courses

The post MIP 3.3, 3.4: dynamic As-Is & Modified Delay Analysis Methods appeared first on Smart PM Blog.

MIP 3.1: As-Planned vs. As-Built, Observational, Single Base, Static, Gross

MIP 3.2: As-Planned vs. As-Built, Observational, Multiple base, Static, Periodic.

What will you learn?

The Source Validation Protocols (SVPs) and the guidelines of both methods.

How to perform the analysis STEP-BY-STEP.

The advantages, disadvantages, uses and limitations of these methods.

Regards,

Osama Saad, MBA, PMP, PSP, PMI-SP

Learn More!

Check out our comprehensive courses

The post MIP 3.1 & 3.2: As-Planned vs As-Built appeared first on Smart PM Blog.

In a nutshell, delay prevents the Contractor from completing the activity within the planned time frame.

However, disruption prevents the Contractor from completing the activity within the planned cost.

Watch the below video to learn more about the difference.

Regards,

Osama Saad, MBA, PMP, PSP, PMI-SP

Learn More!

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The post The difference between delay and disruption appeared first on Smart PM Blog.