Nieuws

In early January we kicked off 2021 with the first of a series of articles on contemporary records. This, the second in the series, covers programmes and progress reports, which show what you planned to do, what you actually did, and when. The importance of these records cannot be overstated. By far the most common type of claim that we encounter is for extensions to the time for completion, for which accurate programmes, progress updates and progress reports will be key supporting records. These records could make the difference between entitlement to time and costs, and the imposition of damages or penalties with no time and cost.  They could therefore be the difference between a profit and a substantial loss.

Ultimately, entitlement to this time and relief from penalties will depend largely upon:

1. Contractual entitlement;
2. Compliance with contract provisions (e.g. notices and the provision of particulars); and,
3. Evidence of causation supported by contemporary records.

In this article, we cover programmes, programme updates, and progress reporting records.

Author: Adrian Dobbie Holman, Associate Director, Driver Trett Dubai. 

Programme Records

A project may have many types of programmes, from the tender programme (which may be included in the contract), to a detailed programme produced at an early stage in the contract, to target, lookahead, recovery or acceleration programmes, supply chain programmes, and programmes produced for particular activities.

Some of those programmes will likely be accompanied by other information such as a narrative, productivity rates, resources histograms, and S-curves;

Baseline Programmes

Contract programmes or “baseline” programmes are usually required to be produced and approved at a relatively early stage in the project.  They are a fundamentally important tool for project management, but are also likely to be very important for demonstrating entitlement to an extension of time.  Although the claims or disputes resolution process specified in the contract might place an emphasis on what actually happened rather than what was planned, the planned dates, durations and sequences of activities may play a significant role.  In fact, some contracts specify that the analysis of the effects of delay events be carried out with reference to the baseline programme.

The most common problems that we encounter with such programmes are as follows:

1. No approval or consent;
2. Late approval or consent;
3. Baseline scope not reflected;
4. Client or third-party obligations not shown;
5. Technical problems (e.g. links, lags, float);

The first three items above are common and tend to be related.  There may be non-compliances in the programme and related documents, a reluctance to approve, or a very strict approach to doing so.  Changes that occur prior to approval are sometimes incorporated, leading to the absence of an approved plan for carrying out the contract scope, which could lead to disagreements later on.

Another relatively common issue is that client or third-party obligations are absent.  For example, if a client needs to provide access, approvals, designs, or free-issue materials, or if an authority has to provide permits, these should all be detailed in the programme, even if they are not obligations of the contractor.

Finally, we regularly encounter functional issues related to lags, float, constraints, and logic links.  Although these problems usually manifest themselves during delay analysis, which we will cover in more detail in another article, such issues can bring into question the quality of the programme records and what the actual intent was.

Progress Records

Programme Updates[1]

Unlike a programme, which is a primary contemporary record of what was planned, it could be argued that as-built data such as start dates, progress %’s and finish dates entered into a programme, is not.  Ideally, this as-built data should be supported by some form of “primary” contemporary records such as technical submittals, delivery notes, inspection and test sheets, progress reports etc… 

The most common problems that we encounter with programmes updates are as follows:

1. Modifications;
2. Discrepancies;
3. Missing updates;
4. Late updates; and,
5. No primary record of actual dates or progress.

Modifications, such as changing planned dates, durations or logic, or changing remaining durations or past progress records, may be done to satisfy a perceived immediate need, but have a substantial negative impact on the credibility and robustness of claims later on.   If changes are deemed required, irrespective of what the contract states, it is good practice to accurately record these modifications with an explanation as to why they were made.  However, in our experience this is not always done.

Discrepancies is another major issue, where past dates are changed, or if there is inconsistent or illogical data between updates, such as progress reducing.

Missing updates is a common issue, and although there is the potential to interpolate between two other updates, or draw inferences from them, a delay analysis and therefore the associated claim might be diminished as a result of having to do this.

A complete absence of updates would clearly be very detrimental to a claim for time but this scenario is rare.  What we do regularly encounter though, is missing updates on the approved baseline programme.   Often, when the baseline programme is under review or approval the contractor will record progress on the relevant programme at the time.  However, this is usually not the approved programme.  Therefore, if the approved programme includes new or different activities, there may be no progress data available for them.

Finally, late reporting of the data is relatively common.  Typically, there is a contract requirement to record monthly, but some reporting periods maybe longer than this.  This can cause an issue with a delay analysis that requires an analysis at the end of each month.  It might also lead to a claim being challenged.  For example, if an update is issued late and shows a critical delay to completion, the opportunity to mitigate the delay might have been lost, from the time when the update should have been issued.

Progress Reports

Regular progress reports have the potential to be excellent contemporary records.  Whilst they almost always do provide support for claims, we often encounter the following issues, that makes the claims less robust that they would otherwise be.   

1. Missing reports;
2. Inconsistencies between daily, weekly and monthly reports (e.g. man-hours, progress);
3. No distinction between contractor and subcontractor, direct and indirect staff and labour;
4. “Missing links” (explained below);
5. Delay and disruption events not mentioned;
6. Issues and concerns not mentioned; and,
7. Progress information copied and then inaccurately pasted into later reports.

Missing records will almost certainly weaken a claim, even if inferences can be made, and inconsistencies lead to the question – which record is correct? In both cases, proper project management and contract administration will prevent this from happening.  Not distinguishing between contractor and subcontractor, direct and indirect staff and labour can undermine prolongation cost or disruption claims.

Progress reports should ideally report the 4W’s - WHO (resources) was doing WHAT (activity), WHERE (location) and WHEN (date).  Any missing “W” (a “missing link”) could undermine a claim in the future.  For example, a disruption claim productivity analysis that we were asked to undertake for an elevated road project in the UAE failed because the otherwise good daily reports did not clearly define which bridge span the labour was working on.  If an activity is unusual, unplanned or perhaps repeated, it might be appropriate to record WHY it is being done.  It might be appropriate to record HOW, but that is more likely to be covered by other documents such as method statements.

Commercial business culture naturally gives rise to some pressure to keep paying clients contented, and the classic manifestation of this is a reluctance by contractors to issue notices of delay events.  In our experience, the same seems to apply to recording delays, disruption, key issues and concerns in progress reports.  We often find that these are rarely recorded, or the same status is reported continuously without change or explanation.  Recently, a client of ours in the Middle East was challenged on its entitlement to substantial claims because it had failed to mention delay events and the cost of the delays in its monthly progress report – an obligation that was expressly stated in its contract.

Keep an eye out for our third article on resources records, which will also cover productivity, in early March 2021.

If you have any concerns regarding the sufficiency of your record-keeping or if you would like us to conduct a no obligation health-check of your programme, progress or other records, please contact Adrian Dobbie-Holman on +971 55 889 5203 or adrian.dobbie-holman@drivertrett.com.