Construction programmes or schedules are contractually required to be submitted by the main contractor to a Contract Administrator such as the Architect, Engineer or Superintending Officer (SO) for approval at the beginning of the project for two main reasons. Firstly, it allows progress of works to be monitored and secondly it facilitates assessments of any extensions of time. The programme is such an important document that usually most standard forms of contract provide certain penalties for failure to obtain its approval in a timely manner including withholding parts of progress payments or even restraint from commencing any works.

Despite the criticality of such document, the contract rarely prescribe the types of programme, particularly the specific nature of information that should be included in those programmes. Instead, the definition of what is considered acceptable or will be approved is not clearly defined leaving the Contract Administrator with broad discretionary power, that can be a source of dispute. This article examines the types of construction programmes in general and the respective functions of these documents. Having a fundamental understanding of these concepts is critical to providing clarity to programme related contract provisions.

Baseline Programme

Baseline programme is the first accepted and approved programme produced by the main contractor at the commencement of the project. Such initial programme will almost certainly be revised during the course of construction in response to a dynamic site condition such as encountering underground obstruction, revision in building design or simply a new timeline to catch up after a series of delays. Due to such likely revisions, the presence of a baseline programme that will objectively reflect the scope and extent of changes in timeline is crucial. This is because the records of any revisions or changes in schedule is likely to shed light on what are the underlying causes of delay and the party that is likely to be responsible.

A baseline programme that is complemented with relevant data, records and information inevitably becomes a more effective tool in monitoring progress of works and measuring any extensions of time. A baseline programme should at a minimum be accompanied with resource records, progress records, cashflow statement as well as other certification documentations such as instructions, directions and related correspondence. Firstly, this is to ensure that when one is examining the timeline planned for any given works, it is also able to appreciate how realistic such timelines are given the resources available to support the target dates. Secondly, if and when the plans are not executed as intended, what are the scope and extent of delay and disruptions if any. Very often the programme related provisions under standard forms of contract are not sufficiently prescriptive in describing how comprehensive should a baseline programme be for it to be approved by the Contract Administrator. The reluctance to be prescriptive may be due to the perception that any approvals given may signify that the consultants are committing to providing certain information to the main contractor in accordance with the targets indicated in the baseline programme. Contrary to popular belief, the building design is rarely developed in its entirety when the construction contract is formed. Very often, during the course of construction the contractor may continuously issue Request for Information (or RFI) related document to the consultants to seek further details to facilitate construction. 

The baseline programme, as with any other types of programme is usually presented in a critical path method where the entire timeline is divided into various activities which in turn represent various trades of works. These activities are linked logically based on a certain sequence of construction. There are various softwares available in the market that present the programme based on a critical path method. At the project level, the same software should be prescribed so that all parties can work on the same platform. When examining such programme that is linked activities by activities, the key focus should be the interface logic linking one activity to another where it usually signifies the completion of one activity leading to the commencement of the subsequent activity. This is the area where the impact of delay is demonstrated. By way of example, if the casting of concrete wall is delayed, the subsequent painting to the very same concrete wall would be delayed as well, since no painting work can commence without the wall in place. In other words, there is a logical sequence between one activity leading to another activity. However in reality there could be other reasons causing delaying impact to the painting work even if the concrete wall is in place. For example, there could be multiple concurrent activities occurring around the vicinity of the concrete wall causing site congestion. This is likely to occur when an ambitious contractor plans various activities simultaneously without considering the resource constraint critical path. Therefore in examining a draft baseline programme, a shrewd Contract Administrator will be sensitive to the logical links between activities in order identify spots that are vulnerable to extensions of time. The resource records becomes useful in verifying whether the contractor actually has the resources necessary to support its proposed baseline programme.

The overall critical path of the entire project refers to the longest path from the start of the first activity to the finish of the final activity. It is the schedule route where if any delay occurs along such path, there would be a corresponding delay to the practical completion date. This explains why the phrase of ‘critical path’ where every activity along such path is considered critical activity. Any other alternative paths is considered ‘float’ since a delay along such alternative route may not give rise to delay in practical completion. The presence of alternative paths meant that the definition of critical path gets revised from time to time in order to accommodate or cushion any delay without causing a delay to completion. The exact route of the critical path exhibited in a baseline programme becomes important because any corresponding change that arises often becomes a focal point in forensic delay analysis.

Contemporaneous Programme

Contemporaneous programme is also known as the revised programme or updated programme. In essence this is a revised version of the baseline programme. As programmes could be revised multiple times during the course of construction, each contemporaneous programme could also refer to a corresponding snapshot of the prevailing timeline of the project at a moment in time. Should a contemporaneous programme be produced at an agreed interval? Or should it be produced at the discretion of the Contract Administrator, presumably when the project is in delay and in need of a fresh plan to catch up or even mitigate those delays? It appears that there is no one unified industry practice and different standard conditions of contract takes a different approach. Most contract forms place emphasis on the production of the baseline programme but unfortunately do not place an equal emphasis on contemporaneous programme. This could be due to the lack of appreciation of the importance of contemporaneous programme or the intentional deference to the Contract Administrator. Since extension of time provisions are typically drafted with a fairly elaborate mechanism, one would imagine that there should be an equally elaborate provision governing the production of contemporaneous programme. This is because each snapshot of timeline provides a forensic insight into the state of the project schedule, that is necessary to assess extension of time. 

Substantively, every feature that exists in baseline programme should equally be included in contemporaneous programme. Elements such as critical path methods, resource records, logically linked activities, progress records etc should be updated in every version of contemporaneous programme. This is to ensure a like for like comparison when one examines the evolution of a project schedule within the contract period. In every revision of contemporaneous programme, the actual resources utilised, actual duration taken for specific activities, actual critical path of the schedule, actual progress of works achieved etc are incorporated in the prevailing schedule. Likewise, any change in planned resource to be utilised, planned critical path, planned sequence of works are updated if any. Therefore, a contemporaneous programme provides both the prospective and retrospective views of the project schedule at a moment in time. A factual retrospective record of the timeline is crucial for certain types of delay analysis methodology such as the ‘time slice analysis method’.

Given the undeniable evidentiary value of each contemporaneous programme, it begs the question of what should be the philosophy on the frequency with which such programme should be produced? Some view programme as a ‘reaction’ for delay where it should be available only when the schedule is in issue. Others view programmes as tools of ‘prevention’ by having these in place prior to any dispute. Whether it should be a tool of reaction or prevention, it is ultimately a function of cost benefit analysis. It is undeniable that whilst the presence of contemporaneous programmes is beneficial, it could be costly since professionals with reasonable level of competence had to be dedicated to such intricate assignment. Traditionally, main contractors being the party claiming for extensions of time are more incentivised to ensure the availability of evidence to support its claim. Rightly or wrongly, the Employer may take the position that the burden of proof is on the main contractor as regards extension of time. Therefore, the Employer is less likely to dedicate such resources accordingly. Consequently, such cost is usually incurred by the main contractor on a case by case basis depending on the risk profile of the project in hand. On the other hand, there is also an alternative view that contemporaneous programme should not be produced on a regular interval but rather be created on as-needed basis. The problem with this approach is that when need arises namely when the schedule is already in delay and parties are at odds with the causes of delay. Therefore it is not uncommon to see that parties who are in a difficult relationship could not agree on anything including what should or should not be included in the contemporaneous programme. In such a case, contemporaneous programme does not solve the problem but rather adds to the scope of disagreements. Delay analysis can become contentious in the absence of contemporaneous programme because parties are now required to engage expert witnesses to construct their respective theoretical contemporaneous programme in case of arbitration or litigation. This could add costs to dispute resolution.

As Built Programme

As built programme is a factual record of the timeline of a project that is sometimes known as constructed programme. For projects that produce contemporaneous programme on a regular time interval, as built programme represents the penultimate version of the contemporaneous programme. One of the shortcoming of as built programme is that it is usually a manifestation of different activities and the duration taken but without the inter activities logic linking one another. Further, as built programme only depicts when certain activities in issue commence and finish without shedding light on what could have caused the delay. Therefore as built programme does not usually exhibit the as built critical path. The user of as built programme, such as delay analysts are usually required to develop a critical path based on their professional opinion by way of deduction. Such deduction usually involve a comparison with the baseline programme or the appropriate contemporaneous programme. Such process of deduction involve application of common sense and logic guided by clear definition of what constitute commencement and completion of any given activity. By way of example where two interfacing activities are executed in a certain geographical phase of work with overlapping period, it can be tricky when defining commencement and completion. Further, parties should ideally have agreed in advance on the common method of delay analysis. 

Although most construction contracts stipulate submission of as built drawings upon project completion, it is extremely rare that the contractor is required to produce an as built programme. In Singapore, as built drawings of completed buildings are required in exchange of statutory approvals for occupation. However as built programmes are rarely required except when parties are engaged in legal proceedings which involve forensic delay analysis. Obviously as built programmes are almost exclusively used for delay analysis as there is no need to monitor progress of works anymore upon completion of project. Consequently, the factual veracity of as built programmes are under tremendous scrutiny where disputing parties would cross check the as built programme with other contemporaneous records of the project such as project cashflow, progress payments, progress reports, correspondence, approved method statements etc. To the extent that there are discrepancies or conflicting information, disputing parties will challenge the accuracy of the as built programme in support of their pleaded positions. Therefore, for as built programmes to be useful and reliable it should be as accurate, true and correct as possible.

Assessment of Extension of Time Using Different Types of Programmes

Based on the preceding sections of this article covering different types of programmes, it is clear that every programme offers a unique perspective of the project schedule. These perspectives in turn give rise to different methods and options in assessment of extensions of time. However in reality parties are not at all spoilt for choices but rather constrained by limited options in delay analysis. This is because most construction contracts do not have a robust regime to produce different types of programmes at appropriate time intervals. As alluded to earlier, most contract forms place certain emphasis in the production of the initial baseline programme and leaves the subsequent programmes to the discretion of the parties. There is also very limited specificity on the types of information that should complement these programmes. Any revision to programmes are usually initiated when there are issues with the project timeline as a reactionary measure. If and when parties are engaged in legal proceeding, the water is metaphorically under the bridge. Consequently the delay analysis options available to the parties are dictated by documentation available and the quality of information included therein.

There are a variety of methods in assessing extension of time. There are no laws that seek to recognise or sanction only certain methods of assessment and therefore there is no issue of legitimacy of one method over another method. There are however certain methods that are more widely discussed and adopted, thus considered as being more “popular”. The methods referred to in the subsequent part of this article are therefore by no means exhaustive.

If only a baseline programme is available, one of the delay analysis options is the ‘impacted as-planned’ method. This approach is one of the least complicated methodology thus best known for its simplicity. Such simplicity also make it less costly and less time consuming to be developed, making it the preferred approach when there is a tight budget in financing an arbitration. However its very simplicity is often argued as a double edged sword in that certain aspect of its result could be deemed theoretical and departs from what actually occurs on site. Therefore if this method is applied to a complex multi faceted development, it could be vulnerable under cross examination. In essence, the delay event is ‘impacted’ or ‘introduced’ on to a baseline programme that is logically linked and with its critical path exhibited. Consequently the planned finished date is compared with the impacted finished date to identify the schedule overrun. This method does not cater to concurrent delay and the impacted programme may not represent the reality or factual records available, thus often seen as theoretical. The other difficulty is the argument of what is the actual delaying event or the root cause of the schedule overrun. Parties in dispute rarely agree on what constitute the delay event since the baseline programme would have been revised when the disputed event occurs. 

Where the project consistently produces contemporaneous programmes on a regular interval beyond the initial baseline programme, there are more delay analysis options available to the parties. These additional options arguably increases the credibility and quality of extensions of time assessments. Under such circumstance, the parties could consider adopting the ‘time slice analysis’ amongst other options. As the term suggests, it involves slicing the entire project timeline into smaller windows. Every window is recorded in a contemporaneous programme. What should the duration be for each window? One could define the window based on a fixed duration say one month, or based on the duration where the occurrence of certain delay event and its ramifications are in focus. In case of the latter, assuming a delay event occurs and affects only three consecutively linked activities, there could be three windows in total where each window represents the duration to complete each activity. Each window depicts both the contemporaneous events occurred on site and the planned activities immediately thereafter. Therefore it provides both retrospective and prospective view for any given moment in time. Both the forward and backward view facilitate assessment of extension of time in an upfront manner rather than to procrastinate these contentious issues until project completion. However, for this method to be fair and effective it requires both parties to be proactively and consistently engaged in programme matters rather than to leave these details to either one party. If it is left to only one party, say the main contractor’s programmer, there may be inadvertent adjustments made to the subsequent window to neutralise any delay occurred in the immediate past. Such adjustments could conceal the real delaying impact and affects the assessment outcome. When compared to the impacted as planned method, this delay analysis is premised on more facts and actual site records. This addresses any concern of being overly theoretical and being detached from reality.

If one were to primarily rely on as built programme for the purposes of delay analysis, presumably due to lack of credible contemporaneous programme, one of the assessment options available is the ‘retrospective longest path analysis’. This method uses as built programme that consists of actual start and finish dates, including actual project completion date. The as built critical path (may be different from actual critical path) is thereafter determined by tracing the longest continuous path from the actual completion date to the project commencement date. Once this as built critical path is established, delay events that occur on such path is examined by comparing it with the original planned dates indicated in baseline programme. Admittedly, such approach ignores any change in critical path during the construction duration which commonly occurs that could have been the actual critical path. To the extent that these critical paths differ, it could be vulnerable to attack under cross examination. Also, in the absence of credible contemporaneous programme, it could be time consuming to establish a critical path that is in sync with much of the project records. This could be exacerbated by any modification in construction sequence or methodology that renders the comparisons with baseline programme obsolete. 

Conclusion

Programmes can be critical in affecting the delay analysis options available. Availability of credible programme related information is directly correlated with a robust delay analysis that could withstand scrutiny. Unfortunately to this end, there is still much room for improvement in ensuring standard conditions of contract institute appropriate programme related regime. Just as contract prices and rates are important for valuation of variations, timeline related information are also important for assessing extensions of time. There should be an equal and balanced emphasis in this regard.




Koon Tak Hong Consulting Private Limited