Best practice guidance for a reduction of construction delay disputes worldwide

The consistent winners in those contexts are the legal/dispute resolution teams. The main losers are the taxpayers. The rest is a zero-sum game. 

Summary

Construction delay claims and disagreements are expensive, time consuming, prevalent worldwide and a leading and persistent cause of disputes in the sector (NBS, 2018; RIBA, 2022; Arcadis, 2023). There are two key aspects to such disputes: legal and factual. The latter will be investigated in this project because currently

1. there is no best practice guidance, or indeed good practice guidance, as to how parties to construction agreements should determine the impact of delays;
2. construction contracts often lack provisions that address issues relating to the measurement and management of delays;
3. the law leaves it to the parties to construction contracts to manage and resolve such problems;
4. the parties to such agreements often engage in opportunistic/tactical/ strategic behaviour that exploits such deficiencies and frequently results in the escalation of construction delay claims into disputes;
5. there is little to prevent Hard Positional Bargaining in forms of alternative dispute resolution that guarantee the privacy of the parties and delay experts;
6. existing and current technologies can offer improvements, but are often deliberately underused;
7. the end users in public infrastructure projects are the taxpayers and
8. it is iniquitous that third parties (and taxpayers in particular) should be responsible for such costs because, inter alia, opportunistic/tactical/strategic behaviour by the parties to construction delay disputes and/or delay analysts is at the core of the problem.

The body of existing published work has identified these individual issues, yet failed to fully associate, evaluate and address them. The disagreements over matters of fact are driven by a set of factors that have not been identified in the published literature. To fulfil this research gap, what is required is the identification and understanding of

1. the justifications for differences in expert opinion on the extension of time entitlements stated by delay analysts in evidential material (or factors);
2. the reasons for disagreements in delay claims and disputes (or contextual variables) and
3. the main reasons for disagreements (or root causes), based on real case material, of how expert interpretations of so-called ‘factual’ evidence can differ, and result in difficulties for impartial adjudicators.

Therefore, the main difference between (i) and (ii) is that the justifications stated by delay experts in evidential material are not necessarily the reasons for disagreements.

Methods

This project will use research methods that rely upon access or recourse to documents submitted as evidence in alternative dispute resolution forums to offer comprehensive lists of factors, contextual variables and root causes. It is argued here that without identification and understanding of the factors, contextual variables and root causes, efficient, effective, comprehensive, and viable solutions to this problem, namely good/best practice guidance, cannot be offered. This project will be grounded upon a large sample of real case material which is available to the project lead (as Dr Atanasov has been providing consultancy services including the preparation of expert delay analysis reports, for eight years, on some of the largest construction, infrastructure and engineering projects and disputes in the world). As aforementioned, this information is invaluable and critical to the identification, analysis, synthesis, and evaluation of a comprehensive list of factors, contextual variables and root causes and underpins the development and ultimate contribution of this project that is a best practice guide for the reduction of disagreements over matters of fact in construction delay disputes. All research data will be handled confidentially and anonymously to address potential confidentiality issues. Some of the proposed work has already been undertaken by the Principal Investigator.

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