Calibrate adopted a bespoke forensic delay analysis to assess the validity of the contractor’s EOT claims and provided an independent expert report to support the dispute resolution process.
ENGAGEMENT
Calibrate was engaged by the lawyers acting on behalf of a developer to provide an independent expert report in respect of a contractor’s extension of time (EOT) claims. After the EOT claims were rejected by the developer, a dispute arose, and the contractor commenced an Expert Determination to determine the dispute.
The contractor issued two EOT claims due to material shortages of timber and gypsum board, claiming an EOT to each of the 38 separable portions. It sought payment of a significant sum of delay costs in connection with these EOTs.
The contractor’s claims stemmed from procurement delays, ostensibly as a result of Covid-19. The contractor’s position was that, as a result of the material shortages, it was delayed in carrying out the framing, interior walls and roof trusses and in turn, reaching practical completion of each Separable Portion.
The contractor did not issue traditional program progress updates using CPM planning software while carrying out the works. As a result, Calibrate’s approach to assessing the delay required a detailed factual review to establish the progress of the works at various points in time. Calibrate undertook a forensic review of the monthly payment certificates to produce a matrix of the monthly progress of the works across all 38 separable portions.
Based on the progress identified from the progress matrix, Calibrate was able to identify periods of delay and test the purported impact of the late delivery of materials to each separable portion.
Calibrate’s analysis established that there was indeed delay arising from the material supply issues. However, Calibrate’s analysis found that:
- There was inadequate evidence advanced by the contractor to establish that all or part of that delay was attributable to Covid-19–in particular, the contractor did not establish the date when it placed its orders; and
- The contractor suffered concurrent delay to the construction of foundations and ground slabs, which were delays not referable to the material supply issues identified in its EOT claims.
OUTCOME
The appointed Expert largely accepted Calibrate’s report’s findings. While the determination indicated that the contractor had established grounds for its claim, the Expert agreed with Calibrate’s position that it had failed to produce evidence establishing the extent of delay arising from Covid-19.
