One of the most important — and most frequently ignored — principles in the SCL Delay and Disruption Protocol is the rejection of the 'wait and see' approach. Core Principle 4 makes clear that the impact of a delay event on the completion date should be assessed contemporaneously, at the time the event occurs, rather than deferred to the end of the project.
The reasoning is both practical and evidential. At the time a delay event occurs, the project team has direct knowledge of the circumstances, the records are fresh, the people involved are still on site, and the programme update reflects the reality of the works. By contrast, an analysis carried out two or three years later — typically after the project has completed and the dispute has crystallised — relies on faded memories, lost documents and a completion sequence that may no longer reflect the original critical path logic.
In Middle Eastern arbitrations, delay expert witnesses are frequently asked to assess delays that occurred years before the appointment. This time-distant analysis is permissible (Core Principle 11 deals with it specifically) but it is invariably more contentious, more expensive and less reliable than a contemporaneous assessment would have been.
The Protocol encourages contractors to use prospective time impact analysis (TIA) at the point a delay event occurs. This involves taking the most recent updated programme, inserting a fragnet representing the delay event, and observing the impact on the projected completion date. The result becomes the basis for the contractor's notice and the engineer's determination of any EOT due.
The 'wait and see' approach — where the engineer defers determination until the impact is known with hindsight — is criticised in the Protocol because it leaves the contractor in uncertainty, potentially incentivises acceleration, and exposes the employer to claims for the costs of that uncertainty. It also tends to produce disputes rather than resolve them.
Adopting a contemporaneous, prospective approach to delay analysis is one of the highest-value investments a project team can make. It produces faster, cheaper and more reliable outcomes — and gives any future delay expert witness a far stronger evidential base from which to opine.