There is no specific described methodology for EoT claims, but the following methodology is what we suggest based on case law:
- Short introduction of the claim (max. 5 lines)
- What burden of proof needs to be met to get the claim awarded?
- Facts and documentation of the delay
- Qualification and legal arguments
- Proving an EoT eligible event
- Proving causation
- Claim amount
9.1. Short introduction to the claim
It is initially necessary to present a short introduction to the claim for EoT, so that it is clear to the judges, which type of claim is being presented. This has to be very simple so that the judges know the overall “picture” though this headliner. The amount of days extension claimed should be mentioned here too.
9.2. Explanation of the requirements to get the claim awarded
This is the “what”-section of the description of the claim. A short list of the criteria which has to be proven to be successful and who has the burden of proof.
For EoT claims the burden of proof is on the contractor.
9.3. Facts and documentation of the delay
In this section it is very important to keep it clear and simple
When dealing with a claim for EoT, it is essential to provide timelines of the event – both timelines for the project as it was originally planned – but also revised timelines for the project as it turned out with the delay(s)
The timelines have to be presented in such a way that it is as obvious as possible, how the different tasks are dependent of the completion of other tasks, as to prove that a delay of these tasks influenced the critical path
9.3.2. Facts and description of the claim
Here is to describe the documentation which will support the claim. The more factual documentation which can be submitted to the Arbitration Board, the better.
Facts have to be drawn from existing documents like timeline/baseline in the original contract, changes in the contract during execution of the project, minutes of meeting from various meetings with the Employer, e-mails and witness statements etc..
If a claim concerns extension of time due to a delay, documentation of the facts could for instance be as follows:
- Original timelines planned for the project
- Revised timelines due to the delays
- Descriptions of the cause of the delay – could be drawn from:
- MOM from meetings
- Photos of the delaying factor (e.g. dated pictures of a critical task being incomplete)
- Witness statements
- Hand over report
- Proof of the actual delay – could be drawn from:
- MOM from meetings
- Dated photos proving the (delayed) progress of a task
- Witness statements
- Hand over report
9.4. Qualification and legal arguments when proving the causation between the event and the delay
Proving causation is to prove that the delay has influenced the critical path of the building schedule. The term critical path is not widely elaborated on in either case law or in danish legal literature.
Critical path can be seen as the point in a project schedule, for which the timely completion is necessary as not to be delayed. An influence on the critical path could be due to the delay of a critical activity, for which upcoming work is dependent on the completion of. An influence on the critical path could also be due to delay of an activity, which in itself is critical for the timely completion of the work, without upcoming work being dependent on the completion.
As an example, the bricklayer whose job is to lay a brick wall on a concrete foundation, is dependent on the concrete foundation being done, before he can begin his work. If the concrete foundation is delayed, the bricklayers work is delayed, which in turn is expected to delay upcoming work e.g. isolation of the walls, mounting of the roof etc. In this example, delay of the concrete foundation would influence the critical path of the building schedule.
As a counterexample, the bricklayer who has to lay ten identical brick walls on ten concrete foundations, is not necessarily dependent on the timely completion of all ten concrete foundations. If one of the foundations were delayed by 5 days, but the bricklayer could spend those five days laying the brick walls on the other foundations, the 5-day delay has not had an actual impact on the critical path or the contractors ability to finish within the deadline. In this example, the contractor would not be entitled to EoT.
A contractor cannot claim EoT if a delay could have been averted through regular replanning of the schedule. As an example, from caselaw, the Arbitration Board came to the following conclusion regarding a claim for EoT:
The main project from 1 December 2004 had a number of defects as mentioned in the experts’ response to these questions.
This specifically applies to the electricity project, but as stated by the experts, there were no defects or uncertainties which could not have been clarified with the supervision during normal preparation and arrangement of the carrying out to such an extent that there would be no delay in connection with the actual carrying out.
Thus, in the opinion of the arbitration tribunal, the defects claimed regarding the main project cannot per se lead to an extension of time.
An example of a delay which influenced the critical path, but which does not influence a critical activity, would be if the final work before completion, e.g., cleaning, is delayed. In this case, a critical activity has not been influenced, given how there are no upcoming works dependent on the cleaning, but it is very apparent that the ability to finish the project on time has been delayed, and as such the critical path has been influenced.
9.5. Amount of days extension claimed
The amount of time that the contractor may be entitled to shall be calculated in whole days.
In the conclusion you wrap everything together and state the exact amount of days claimed for EoT and shortly the reasons for it.