Written by Andrew White
Introduction
I wrote an article on pacing some years ago and this issue came up in a recent adjudication in which I was appointed by the Responding Party, prompting me to revisit the topic.
Pacing within the context of a construction project is when the Contractor deliberately reduces the rate of progress of non-critical activities in the currency of a critical path delay event (’parent delay’) caused by an Employer delay event:
This is sometimes characterised as ‘Why hurry up and wait?’
Pacing is therefore a deliberate reaction to an event rather than an unintentional delay in the natural course of events. In other words, the opposite of Parkinson’s Law where ‘works expands so as to fill the available for its completion’ originating from the observed growth of the British Admiralty and Colonial Office despite a reduction in ships and colonies.
Pacing is often used as a defence to the Employer delay event by the assertion of Contractor culpable concurrent delay and therefore, potential loss, or reduction of entitlement to prolongation costs.
Pacing, however, is not restricted to an act of the Contractor as it is not unusual for Employers to issue designs or information later than planned or originally requested but timely to the progress of delayed works on site such that no critical delay is caused.
However, because this situation does not affect Contractor entitlement to EOT and loss and / or expense, the term pacing tends to be confined to an act by the Contractor based on:
- Reaction to an Employer delay event or ‘parent’ delay.
- The rate of progress is reduced to ‘pace’ the Employer delay event
- Pacing activities do not cause critical delay
- The Employer delay event remains the cause of critical delay, i.e. the pacing activities consume float created by the ‘parent’ delay.
Tests
Tests can vary depending on the jurisdiction but include:
- The Employer delay event caused critical delay causing float to increase or occur within the paced activities.
- The Contractor can evidence that the pacing measures were a reaction to the Employer delay event and therefore, the Contractor was able to reasonably forecast the period of critical delay caused by the Employer delay event to then implement proportionate pacing measures.
- The Contractor can demonstrate that it would have completed the paced activity as originally planned, or earlier than the pacing measures, to identify the net effect of the Employer delay event ‘but for’ any pacing measures. By implication, this also means that whenever it becomes reasonably apparent that an Employer event will or is likely to cause delay, the works are not already progressing out of sequence working i.e. the intention or act of pacing is not an attempt to mask Contractor culpable concurrent delay.
- Pacing measures did not cause further critical delay and, in the event of the Employer mitigating the delay event, the Contractor resumed the planned rate of progress and therefore, the pacing measures were suspended and did not cause actual critical delay.
- Contemporaneous notice by the Contractor of an intention to pace but not cause further critical delay.
These tests can be summarised as the need to notify an intent to pace, ability to forecast the period of pacing and then to pace as a matter of fact, the latter of which was tested in Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council:
‘In his report Mr X … said, obliquely, that “there may have been some works to the externals that could be progressed, however this would not change my opinion that the works were critical in delay and that it was within TBS’s gift to pace any non-critical works”. If by this he meant to suggest that the roof coverings could have been progressed but they were non-critical and could have been performed in a more leisurely manner as a result, this seems to me to ignore the fundamental fact that throughout the crucial period from October 2014 through to January 2015 the claimant could not have known how long the remedial works to the hub steelworks would take and could not therefore reasonably have proceeded on the basis that there was no needto worry about the roof coverings until the hub steel deflection issue was completely resolved.’[2] [Emphases added]
‘Unintentional pacing’ was considered and rejected in Tata Consultancy Services Ltd v Disclosure and Barring Service:
‘By ‘unintentional pacing’, Mr Y explained …. It was not necessarily an act of deliberately going slowly, rather it was just not picking up speed when it fell behind, because of the existence of critical delays on the infrastructure path(s). Mr Y characterised BPO UAT as an activity which was allowed to drift because it was not critical, and TCS submit that there was no reason in principle why the initially planned timescales for BPO UAT… could not have been achieved had that been necessary…’[3] [Emphases added]
‘… TCS’s submission that BPO UAT could have been carried out in the as-planned duration of 18-20 days if necessary is completely without foundation…’[4] [Emphasis added]
‘… the extended duration of BPO UAT was caused in very large part by TCS’s own problems… and an absence of resource which would not have been immediately remediable had TCS considered it necessary…. I do not consider that the duration of this activity was principally caused by ‘unintentional pacing’….’[5] [Emphasis added]
Concurrency v Concurrent Critical Delay
Given the need to identify the potential for pacing and then assess and implement the period of pacing and associated measures, without causing critical delay, a pacing delay should not represent concurrent critical delay but will occur within the currency of the Employer or ‘parent’ delay.
Pacing is therefore often relied on retrospectively as a defence to the concurrency of Contractor delay and potential loss, or reduction of entitlement, to prolongation costs:
‘Where Employer Delay to Completion and Contractor Delay to Completion are concurrent and, as a result of that delay the Contractor incurs additional costs, then the Contractor should only recover compensation if it is able to separate the additional costs caused by the Employer Delay from those caused by the Contractor Delay. If it would have incurred the additional costs in any event as a result of Contractor Delay, the Contractor will not be entitled to recover those additional costs.’[6] [Emphasis added]
Because a period will be required to identify, notify, assess and then implement pacing measures in reaction to the parent delay, a feature of pacing delay is that a relatively long period of Employer or parent delay needs to be forecast against which pacing measures can be implemented.
Pacing delays therefore tend not to be associated with relatively short incremental delay events unless the Contractor is able to forecast the timing and combined effect of shorter multiple events, but again over a relatively long period.
However, this raises the question of the validity of pacing measures implemented against multiple rather than single Employer delay events.
Notices
Because pacing arguments are often presented retrospectively as a defence to the concurrency of Contractor delay, they can fail not only on fact, but lack of timely notice(s):
‘The Contractor has a general duty to mitigate the effect on its works of Employer Risk Events…. …. The Protocol recommends that if the Contractor intends to pace non-critical activities, then it should notify the Employer and the CA of its intention in this regard, along with reasons for doing so.’[7] [Emphases added]
Whilst the scope of this article is beyond contractual and legal issues, many forms of contract have express obligations for the Contractor to proceed with the works.
Pacing measures may therefore place the Contractor in breach of its obligations to progress the works, notwithstanding any obligation to mitigate the parent delay and may be further complicated or negated by amendments to the standard form such as concurrency clauses.
Pacing therefore requires careful consideration and legal advice prior to notification and implementation.
Summary
Pacing is used as a defence to an assertion of Contractor culpable concurrent delay and therefore, potential loss, or reduction of entitlement to prolongation costs and therefore, a pacing argument is often presented retrospectively.
A pacing delay is the deliberate act of the Contractor reducing the rate of progress of non-critical activities to ‘pace’ a critical path Employer delay event and sometimes characterised as ‘Why hurry up to wait?’
Tests can vary depending on jurisdiction but can be summarised as the need to notify an intention to pace, ability to reasonably forecast the period of pacing in reaction to an Employer delay event and then to pace as a matter of fact.
Because a period will be required to identify, notify, assess and then implement pacing measures in reaction to the parent delay, a relatively long period of Employer or parent delay needs to be forecast against which pacing measures can be implemented.
Pacing measures may place the Contractor in breach of its obligation(s) to progress the works, notwithstanding any obligation to mitigate the Employer or parent delay and therefore requires careful consideration and legal advice prior to notification and implementation.
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[1] Society of Construction Law Delay and Disruption Protocol, 2nd Edition, February 2017, Guidance on Core Principle 15 (15.2), p40
[2] Thomas Barnes & Sons Plc v Blackburn with Darwen Borough Council [2022] EWHC 2598 (TCC) para. 133
[3] Tata Consultancy Services Ltd v Disclosure and Barring Service [2024] EWHC 1185 (TCC) para. 187
[4] Tata Consultancy Services Ltd v Disclosure and Barring Service [2024] EWHC 1185 (TCC) para. 188
[5] Tata Consultancy Services Ltd v Disclosure and Barring Service [2024] EWHC 1185 (TCC) para. 189
[6] Society of Construction Law Delay and Disruption Protocol, 2nd Edition, February 2017, Guidance on Core Principle 14, p39
[7] Society of Construction Law Delay and Disruption Protocol, 2nd Edition, February 2017, Guidance on Core Principle 15 (15.2), p40
Further Reading: SCL Delay and Disruption Protocol
