Core Principle 7 of the SCL Delay and Disruption Protocol promotes an incremental approach to the review of extension of time entitlement. Rather than waiting until the end of the project and bundling every delay event into a single composite claim, the Protocol recommends that each delay event should be reviewed and determined as it arises.
The benefits of this approach are significant. First, it produces certainty for both parties: the contractor knows where it stands on time, the employer knows the projected completion date, and both parties can plan their commercial and operational responses accordingly. Second, it reduces the evidential burden — assessing one event at a time, with fresh records, is far easier than assessing dozens of events retrospectively.
Third, incremental review limits the scope for global claims, which Core Principle 17 of the Protocol treats with considerable scepticism. A bundled end-of-project claim, in which the contractor seeks an EOT and prolongation cost based on the total delay to completion without identifying individual cause-and-effect, is far less likely to succeed than a series of properly substantiated incremental claims.
In Middle Eastern arbitrations, delay expert witnesses are frequently appointed long after the events in question. Where the engineer and contractor have applied an incremental review process during the project, the expert's task is comparatively straightforward: review the contemporaneous determinations, test the methodology, and identify any errors or omissions. Where there has been no incremental review, the expert must reconstruct the entire delay history from primary documents — a task that is often disproportionately expensive relative to the value of the dispute.
Implementing incremental review requires discipline on both sides. The contractor must prepare and submit claims promptly, with proper substantiation. The engineer must respond promptly, with reasoned determinations. Where the parties cannot agree on a particular event, that disagreement should be escalated through the contractual dispute resolution mechanism rather than left to fester until the end of the project.
The result of a disciplined incremental review process is fewer unresolved claims at completion, fewer disputes overall, and where disputes do arise, a far cleaner record for any delay expert witness to work with.