Granting an extension of time is not merely a clerical exercise. Core Principle 5 of the SCL Delay and Disruption Protocol sets out a structured approach that requires the engineer or contract administrator to assess each delay event on its merits, by reference to the contemporaneous programme and contemporaneous records.
The process begins with a properly substantiated claim from the contractor, identifying the delay event, the contractual basis of entitlement, the date of awareness, and the impact on the completion date. The engineer must then assess that claim independently, and reach a fair determination — even where the engineer is appointed and paid by the employer.
In the Middle East, the perceived independence of the engineer is a recurring concern. FIDIC contracts require the engineer to act fairly, but in practice, employers exert significant influence over the determination process, and engineers often defer determinations or apply unduly conservative methodologies. This is one of the most common reasons disputes are escalated to arbitration.
The SCL Protocol recommends that the engineer's assessment should use the same methodology that a delay expert witness would use: a contemporaneous time impact analysis based on the current updated programme, with the delay event modelled by way of a fragnet, and the impact on the critical path measured against the planned completion date. Where the analysis shows critical impact, an EOT should be granted in the corresponding amount.
Partial grants of EOT — where the engineer accepts entitlement in principle but reduces the duration without clear analytical reasoning — are particularly problematic. They invite disputes and place an additional evidential burden on the contractor. The Protocol's preference is for transparent, reasoned determinations supported by the engineer's own analysis.
Employers and engineers in the region would benefit significantly from adopting the Protocol's structured approach. Doing so reduces the volume of unresolved claims at the end of the project, narrows the issues for any subsequent arbitration, and gives any delay expert witness who is later instructed a clean analytical platform to work from.