As-Built Programme in Delay Analysis — Foundation of the EOT Claim

In a delay claim, the as-built programme is the foundation on which everything else rests. It is the record of what actually happened on the project — when work started, when it stopped, when it resumed, and when it completed. Without a credible as-built programme, the delay analysis floats free of the factual record — and is vulnerable to attack at every point.

The Problem

As-built programmes are often reconstructed after the fact, sometimes years after the events they purport to record. When constructed from memory, or from limited and incomplete records, they are unreliable. The problem is that the reconstruction process — however well-intentioned — inevitably reflects the author’s perspective and interest. Activities are dated to support the narrative of the claim. Delays that benefited the contractor are minimised. Delays caused by the employer are maximised.

This is not necessarily deliberate dishonesty — it is the natural consequence of reconstructing a complex programme without rigorous contemporaneous records. But the effect on the claim is the same: the as-built programme is challenged, cross-examined, and ultimately found to be less reliable than the contemporaneous documents.

The Legal Principle

The SCL Delay and Disruption Protocol (2nd edition, 2017) emphasises at Paragraph 11.8 the importance of contemporaneous records for delay analysis. It states that the baseline for delay analysis should be the as-planned programme, and the actual progress should be identified from contemporaneous records. Where contemporaneous records are incomplete or unreliable, the analysis becomes significantly more uncertain and may not support the claimed extension.

The courts have reinforced this position consistently. In John Doyle Construction Ltd v Laing Management (Scotland) Ltd [2004] BLR 295, the court rejected a global delay claim partly on the basis that the delay analysis was unsupported by adequate contemporaneous records. In Walter Lilly & Company Ltd v Mackay [2012] EWHC 1773 (TCC), Akenhead J confirmed that contemporary documents — daily reports, minutes of meetings, correspondence — provide the most reliable basis for delay analysis.

Practical Application

For contractors: implement a contemporaneous records system from day one. Key records include: daily site diaries (signed and dated); foreman’s records showing plant and labour deployed each day; delivery records; inspection and test records; photographs with metadata; and meeting minutes. These records create the as-built programme from contemporaneous evidence — not retrospective reconstruction.

For delay experts: the as-built programme should be constructed from contemporaneous records, with a clear audit trail from each recorded date to its source document. Where records are incomplete, this should be clearly acknowledged and the uncertainty reflected in the analysis.

Risks

For contractors: the risk of inadequate contemporaneous records is a significantly weakened delay claim, potentially worth a fraction of the actual entitlement. For employers: a weak as-built programme benefits neither party in adjudication or arbitration — the tribunal is left to make uncertain findings that may not reflect the actual facts.

Mitigation

Establish a contemporaneous records system before the project starts — not after a dispute arises. Assign responsibility for records to a designated person. Review the quality and completeness of records monthly. Understand that records created during the project are worth far more than records reconstructed after the dispute crystallises.

Conclusion

The as-built programme is not an administrative deliverable — it is your most important piece of evidence in any delay claim. The records that create it are generated every day of the project. Invest in creating them properly from day one, and the delay analysis will have the evidential foundation it needs to withstand scrutiny.