Comparing SCL and AACE Approaches to Delay Analysis in Construction

Delay analysis is a critical aspect of managing construction projects, a field where disputes and claims are often unavoidable. As project timelines are meticulously planned and rigorously executed, delays can have a cascading effect on project costs, resources, and reputations. In seeking clear methodologies for evaluating these complex situations, project managers and contract administrators often turn to two influential standards: the Society of Construction Law (SCL) Delay and Disruption Protocol and the AACE International Recommended Practice (RP) No. 29R-03, “Forensic Schedule Analysis.”

While both offer guidance on identifying and quantifying delay, their approach to the process and analysis of the data differ significantly. This article delves into a comprehensive comparison of these two perspectives, highlighting their strengths, limitations, and practical implications for construction professionals.

The SCL Protocol: Prioritizing Practicality and Causation

The SCL Delay and Disruption Protocol, a widely-referenced guidance document developed by the Society of Construction Law in the UK, provides a practical and pragmatic framework for analyzing project delays. Its core principles emphasize:

• Clarity and Simplicity: The SCL Protocol aims to provide clear and concise guidance that can be readily understood and applied by all parties involved in a construction dispute.
• Focus on Causation: The SCL Protocol stresses that the identification of the cause of delay is paramount. It advocates for a thorough analysis of events and their effects on the critical path.
• Practical Approach: The SCL Protocol acknowledges that the real world is rarely cut and dry, with projects seldom being delivered as per the original baseline program. It encourages the use of ‘as-built’ information to inform the analysis.
• Application of Common Sense: The SCL Protocol also emphasizes the importance of applying common sense and practical experience to delay analysis as well as a reasonable allocation of contractual risk as interpreted by case law.

Central to the SCL Protocol is the concept of "critical path delay analysis", which aims to pinpoint which activities are delaying a project's completion date. The protocol also provides practical guidance for dealing with various scenarios, such as concurrent delays, disruption and acceleration and seeks to provide a framework for reaching an equitable outcome.

AACE RP 29R-03: Emphasizing Rigor and Transparency in Forensic Analysis

AACE International's Recommended Practice (RP) No. 29R-03, "Forensic Schedule Analysis," represents a more technically rigorous and detailed approach to delay analysis. It is characterized by:

• Emphasis on Methodology: The RP provides a detailed taxonomy of delay analysis methods, categorizing techniques based on the timing of analysis, the type of analysis, the complexity of the method and by the techniques used to perform the delay calculations. The RP also focuses on the use of sound scheduling principles, emphasizing data validation and accurate CPM calculations.
• Focus on Measurement and Quantification: The RP advocates for objective measurement of delays through the use of a robust, detailed process that separates delay cause and effect.
• Transparency and Auditing: AACE RP 29R-03 aims to promote transparency and testability of any results, by emphasizing detailed documentation of the data and methods used, making the process easier to understand, audit and verify.
• Impartiality: The RP acknowledges that subjectivity is difficult to eliminate entirely from the forensic process. Therefore, emphasis is placed on defining a process that is based on objective criteria to the greatest extent possible and is less susceptible to manipulation.

The AACE RP seeks to bring greater rigor and clarity to forensic delay analysis, providing a structured approach for identifying and quantifying delays. This is particularly useful in circumstances where disputes may be escalated to adjudication or arbitration, where a more thorough and transparent approach may be required.

Core Differences: A Side-By-Side Analysis

While both the SCL and AACE provide valuable frameworks, their methodologies and emphasis differ in several significant respects:

• Perspective: The SCL is more practical and offers pragmatic guidance that can be applied by parties to a dispute, whereas AACE’s document, is more concerned with offering guidance to the expert analyst, and places a greater emphasis on technical accuracy.
• Flexibility vs. Rigor: The SCL Protocol emphasizes practical application of its guidance. On the other hand, the AACE approach is considerably more prescriptive by offering a range of classifications and structured approaches, and seeks to promote a more objective form of analysis by implementing a structured set of rules and guidelines for the user.
• Causation Analysis: The SCL Protocol prioritizes the analysis of delay causation as it is the foundation upon which responsibility will be assigned. AACE, however, emphasizes that causation, while essential to assign responsibility, is separate and apart from the technical analysis of delay quantification.
• Approach to Concurrent Delay: The SCL Protocol seeks to apportion delays caused by different parties, and proposes that responsibility for delay should be allocated according to the cause of the delay, while AACE is focused on an accurate, factual analysis of what caused the delay, the extent of such delay and its effect on the project completion date, not who is responsible for it.
• Use of "Hindsight" vs. "Blindsight": The AACE RP distinguishes between the use of "hindsight" and "blindsight" in assessing delays. Hindsight involves the use of all available data including those from beyond the data date, whereas blindsight forces an analysis that simulates what the parties may or should have known at the data date. The SCL Protocol, however, does not focus on the process by which the analyst comes to his/her conclusions.

Practical Implications for Project Managers & Contract Administrators

• The Need for Expertise: While the SCL Protocol provides a more accessible approach for laymen, forensic delay analysis, and particularly analysis utilising AACE methods, is a specialist skill requiring detailed knowledge and experience in scheduling techniques and data analysis. Project Managers, and Contract Administrators should be cognizant of the need to engage competent and properly experienced experts, especially in complicated or contentious disputes.
• Limitations of Each Method: Both approaches have inherent limitations. The SCL framework's focus on causation may lead to lengthy and complex analyses if the link between causes and effects is difficult to trace. Similarly, the technically rigorous approach of AACE may not be easily adaptable to all projects (e.g. small and medium projects with less sophisticated programming) and often fails to take account of the actual behaviour of project participants.
• Role of the Underlying Contract: Both the SCL and AACE make it clear that the approach adopted is subject to the terms and conditions of the contract. Parties should always ensure that any chosen method of analysis is compatible with the contractual terms for the resolution of delay.
• Proactive Risk Management: The early warning provisions and proactive dispute avoidance focus of the NEC are useful for contract administrators in a preventative capacity. The focus of the FIDIC Contracts on an impartial Engineer with a dispute avoidance/adjudication role can assist in reducing the potential impact of problems on the contract timeline.
• The Importance of Good Record Keeping: Both protocols highlight the critical nature of good record keeping, including accurate contemporaneous records that capture key events, schedule updates, and project communications. Proper record keeping is necessary regardless of the methodology used in the delay analysis.

Choosing the Right Approach

The selection of a method or methodology for delay analysis depends on the circumstances of the project and the preferences of the parties. Neither protocol is wholly “correct”. Rather each offers a sound approach, but they each contain implicit biases.

• Projects with Complex Issues: If the dispute is complex or if the methodology is specifically required in the contract, the robust and auditable processes of AACE RP 29R-03 may be a better fit.
• Projects Where Simplicity is Preferred: The focus of the SCL Protocol on causation and a more flexible approach to analysis, make it a valuable alternative when a more accessible, pragmatic, and straightforward process is desired.
• International Projects: For international projects, the use of an internationally accepted protocol is recommended, and AACE and SCL can both be useful in their approach.

Conclusion: The Path Forward

The SCL Delay and Disruption Protocol and AACE International's RP No. 29R-03 represent two distinct approaches to forensic delay analysis. Each has strengths and weaknesses, but each offers a valuable framework for analyzing and quantifying delay in construction projects. The choice depends on several factors including the complexity of the project, the contractual requirements and the preferences of the parties. By understanding the subtle nuances of each, project managers and contract administrators can apply the most appropriate methodology for any situation and improve the chances of achieving a positive outcome in any schedule related dispute.