"That's not what we expected."
Most people working in construction have heard this phrase, or something similar, countless times.
The bricklayer was expecting scaffold to be complete. The drylining contractor was expecting the building to be watertight. The electrician was told one layout and then finds another. The groundwork contractor arrives to discover access has changed or materials are unavailable. The services aren’t connected. The design keeps changing. The list is endless.
The problem is not that changes occur. Construction projects are complex and change is inevitable.
The problem is proving what changed.
When a contractor or subcontractor suffers delay, disruption, out-of-sequence working, rework, additional visits, reduced productivity or prolonged site presence, the first question that will eventually be asked is:
"What should have happened?"
Unless that question can be answered, it becomes difficult to demonstrate what actually went wrong.
The Delay & Disruption Protocol
The Society of Construction Lawyers Delay & Disruption Protocol is widely used when determining responsibility for delay and disruption on construction projects.
At its heart, the Protocol is based upon demonstrating cause and effect.
A cause might be:
- Late information.
- Design changes.
- Lack of access.
- Missing materials.
- Incomplete preceding works.
- Changes to sequence.
- Delayed approvals.
The effect might be:
- Reduced productivity.
- Additional labour costs.
- Multiple visits.
- Extended preliminaries.
- Delayed completion.
- Out-of-sequence working.
However, before cause and effect can be established, there needs to be a benchmark against which events can be measured.
That benchmark is a record of what was supposed to happen. It is usually The Contract including a program or schedule of dates.
No Record, No Comparison
Many contractors assume delay and disruption claims begin with planning experts, lawyers or claims consultants.
In reality, they begin much earlier.
They begin with site records.
When an expert analyses disruption, they compare planned activities against actual activities. They examine what was instructed, what resources were planned, what sequence was intended and what eventually occurred.
Without contemporaneous records, the exercise becomes dependent on memory and opinion.
With records, it becomes evidence.
The stronger the evidence, the stronger the claim.
The Simplest Record: A Confirmation of Instruction
The easiest way to begin creating that evidence is often through a Confirmation of Instruction.
A Confirmation of Instruction records:
- What was instructed.
- Who instructed it.
- When it was instructed.
- How it differs from the planned arrangement.
- Any foreseeable implications for time, access, sequence or productivity.
It creates a snapshot of the project at a specific point in time.
Months later, when someone is trying to establish responsibility for disruption, there is a clear record showing the difference between what was expected and what actually occurred.
A simple email issued on the day of an event is often worth far more than pages of retrospective explanation produced months later.
Building the Evidence Trail
A single Confirmation of Instruction may not seem significant.
However, projects rarely suffer disruption because of one isolated event.
More commonly there is a sequence of events:
- Access restrictions.
- Late design information.
- Changes to working areas.
- Missing plant or materials.
- Re-sequencing of trades.
- Additional visits.
- Rework.
Each Confirmation of Instruction captures one piece of the story.
Together they create the evidence trail required to demonstrate cause and effect under the Protocol.
Protecting Your Position
Many contractors only begin gathering information once a dispute has developed.
By then valuable evidence has often been lost.
The most effective approach is to create records as events occur, while facts are fresh and before memories differ. A weekly mark up of the program, with a note explaining why some thing could not start or why works started somewhere else.
Whether you are a specialist subcontractor, trade contractor or main contractor, the principle is the same:
If something changes, record it.
The Delay & Disruption Protocol relies upon comparing what should have happened with what actually happened. A Confirmation of Instruction is often the simplest and most effective way of establishing that comparison.
If you would like guidance on preparing effective Confirmation of Instructions, read our accompanying article:
"How to Write a Confirmation of Instruction – Protecting Your Position When Things Change on Site."
Because when disruption occurs, the first step is not preparing a claim. The first step is creating a record.
