is it going to make a difference?
Early 2021 in the Netherlands, a working group formed from industry practitioners issued its first draft of a guideline1 on ‘delay and disruption’ for consultation by the wider industry. The aim of the guideline is to help employers and contractors to avoid disputes resulting from delay and disruption and to aid a more efficient way of resolving disputes resulting from delay and disruption. Driver Trett’s Kjeld de Meersseman, Operations Director for the Netherlands was part of this working group and compares in this article together with Hugo-Frans Bol, Managing Director Mainland Europe, the guideline to the well-known 'Delay and Disruption Protocol’ as published by the UK Society of Construction Law.
The authors will also briefly touch upon whether the guideline will be as widely used and accepted as it’s distant relative and if the guideline is going to change how delay and disruption (and related disputes) are managed.
The “Leidraad vertraging en verstoring”: what is it?
The guideline is a collection of recommendations that can be followed by employers and contractors when there is delay and/or disruption. It has no legal status unless parties decide to make it part of the agreement. The guideline aims to follows the sequence of a project from initiative till completion with a focus on planning, delay, disruption and legal principles. Being based on Dutch law and Dutch standard forms it is intended for use only in The Netherlands.
It starts with recommendations regarding the setup, the content and agreement between parties about a baseline programme. According to the authors, a good baseline is required to determine the consequences of delay and/or disruption as accurately as possible.
In addition to the contractual terms, the guideline provides recommendations on how both parties can act when delay and/or disruption occurs. The idea is that good communication during the negotiations of the consequences in time and money helps.
Furthermore, the guideline mentions some of the different methods of delay analysis to a limited extent. For a more information it refers to the SCL Delay and Disruption Protocol 2nd edition February 2017 and the Recommended Practice No. 29R-03 Forensic Schedule Analysis drafted by AACE International.
The second part where there are similarities with the SCL Protocol are the different methods of disruption analysis. Also, on this subject the guideline has a limited approach; there are limited descriptions regarding methods of calculating disruption and not all recognised methods are considered.
Finally, the guideline sets out some legal matters side such as, notices in time, damages, additional costs, causality and (quality of) evidence.
How is it different from the SCL Protocol?
Some of the members of the working group are familiar with the SCL Protocol, which explains the references. It is therefore inevitable that the content of the guideline is in some respects inspired by the protocol. The question is, however, whether the guideline should be seen as complementary to the protocol or perhaps as something completely different. And can the guideline fulfil a similar role in Dutch arbitration and dispute resolution like the protocol. As far as we are concerned, the answer is not that simple.
First of all, the main difference is the aim of both papers. The protocol is a useful guidance on substantiation of delay and disruption and provides a comprehensive and sometimes detailed explanation. The guideline has a different approach and looks at delays and disruptions more from a (Dutch) legal perspective. The most common methods for delay and disruption analyses is, therefore much less explained.
Secondly, many other subjects that can become part of the delay and/or disruption dispute between parties such as float, contingency, concurrent delay and acceleration are underexposed in the guideline. This means that when the dispute is more complex, the guideline is not sufficient enough and analyst should revert to the SCL Protocol or other guides such as those issued by the AACE International; the latter providing recommended practices relative to various topics including Forensic Schedule Analysis.
Is it any good?
Before we can answer this question, we have to explain that the Dutch legal society, when it comes to delay and disruption matters, is one of few real specialists. Construction law is a real niche and the lawyers active in this field, more than in most other jurisdictions, tend to play a moderate role in fact finding and the detail of their cases. This makes that overall, there is also limited (technical) understanding of delay and disruption; let alone experience of analysing and / or determining delay and disruption. Up to now the amount of Dutch literature on the topic, except from some articles and textbooks2 was reasonably limited. The guideline therefore needs to be seen as a first step in the development of a more detailed all-encompassing guideline on delay and disruption.
As is drafted now, the guideline, seems to be somewhat unbalanced. It first sets out in detail what a project schedule is and how it works. This is followed by how one needs to act when confronted with delay and disruption, the extent of delay and disruption and extensions of time, delay analysis and the legal aspects of delay and disruption. This makes that the document is very much focussed on adjacent and more generic scheduling, legal and contracting topics. This probably is also a direct result of the diverse background of participants to the working group. The working group consisted of a mixture of contractors, employers, engineers, lawyers and consultant representatives of who most have a legal / non-technical background.
Another result is that the guideline addresses delay and disruption very much from a legal perspective. The document for instance deals extensively with the legal context of delay and disruption as well as with the procedural side of things. As a result, the document perhaps has become too much a guideline for legal practitioners who are confronted with delay and disruption instead of a tool that serves both project professionals and legal practitioners and help them to avoid and resolve disputes.
What is still needed?
In our view the guideline, for becoming an authority as the SCL Protocol is, needs to focus more on what delay and disruption is (and what it is not!), how one can assess delay and disruption and what is needed in relation to the standard Dutch Construction contracts like the UAV 2012 and the UAV-GC 2005. Of course, this needs to some extent setting out the legal context of the topic, but this context only needs to aid the process of avoiding and resolving any potential issues arising out of delayed or disrupted projects.
So, a more practical and comprehensible document, which is user friendly for everyone involved, will in our view help the adaptation of the guideline in the Netherlands. And it is this adaptation, which will help the wider use and acceptance of the guideline, that will likely best help the guideline meeting its main objective: avoiding and resolving disputes.
1 https://www.ibr.nl/wp-content/uploads/2021/01/leidraad-vertraging-en-verstoring_consultatieversie.pdf
2 Praktijkboek vertragingsschade in de bouw by mr. A.F.J. Jacobs.