The phrase “but for” is frequently encountered in construction claims, expert reports, insurer reviews and legal submissions. 
Contractors are often told that they must demonstrate that, but for a particular event, the project would have completed earlier. Equally, Owners and insurers regularly rely upon the same language when challenging claims for extension of time or prolongation costs.
Despite its widespread use, there is often surprisingly little discussion as to what a “but for” analysis actually involves.
The first point to note is that the expression does not generally appear in standard forms of construction contract. FIDIC, for example, does not impose a contractual requirement to undertake a “but for” analysis. Rather, the contractual requirement is to demonstrate causation; namely, that the event relied upon caused delay to completion of the Works.
The phrase itself is better understood as a forensic scheduling concept than a contractual test.
In simple terms, a but for analysis seeks to answer the following question:
Would the project have completed earlier but for the occurrence of the event in question?
Whilst the terminology is widely used throughout the industry, the methodology is more formally recognised within the Society of Construction Law Delay and Disruption Protocol as a Collapsed As-Built Analysis. Similarly, AACE International Recommended Practice No. 29R-03 refers to the technique as an As-Built But-For Analysis.
The underlying principle is straightforward. The analyst begins by establishing what actually occurred on the project. An as-built programme is developed using contemporaneous records and actual progress information. The event under investigation is then identified and its effects are removed from the as-built programme. The programme is subsequently recalculated in order to determine what completion date may have been achieved had that event not occurred.
Where the recalculated completion date moves earlier, the exercise provides evidence that the event contributed to delay. Conversely, where the completion date remains unchanged, the analysis may indicate that other factors were controlling completion and that the event itself did not cause critical delay.
The apparent simplicity of the methodology should not be confused with ease of application. In practice, the reliability of any but for analysis depends heavily upon the quality of the underlying project records and the analyst’s understanding of the project’s critical path.
More importantly, the exercise cannot begin with the delaying event itself.
Before any meaningful assessment can be undertaken, it is necessary to establish the condition of the project immediately prior to the occurrence of the event under consideration. This requires an understanding of the contemporaneous programme, the forecast completion date, the activities driving completion and the existence of any pre-existing delays affecting the works.
This aspect of the analysis is often overlooked.
Where a project is already delayed at the time a force majeure event, variation, late approval or other delaying event occurs, the discovery of that pre-existing delay is sometimes treated as fatal to the claim. In reality, it simply gives rise to a further stage of analysis.
The relevant question becomes: what caused the existing delay?
The existence of pre-existing delay does not necessarily indicate contractor culpability. Many projects contain delays arising from Employer Risk Events, including late information, delayed approvals, access restrictions, variations, utility diversions and other matters for which the contractor bears no responsibility.
Accordingly, a proper but for analysis frequently requires the analyst first to identify and attribute the causes of delay already affecting the project before assessing the impact of the event under investigation.
This distinction is particularly important in relation to the force majeure and regional hostilities claims currently being advanced across the Middle East. Many affected projects were already experiencing varying degrees of delay before disruption to logistics, shipping routes, procurement activities and workforce mobilisation occurred.
In such circumstances, the task is not simply to demonstrate that delay exists. Rather, it is necessary to establish the project’s status immediately before the force majeure event, identify the causes of any existing delay and then assess the extent to which the subsequent event caused additional delay to completion.
Viewed in this way, the but for analysis is fundamentally an exercise in causation. Its purpose is not merely to measure delay, but to determine why that delay occurred and to distinguish the effects of one event from another.
Ultimately, the phrase “but for” should not be regarded as a contractual test in its own right. It is better understood as a recognised forensic scheduling methodology used to investigate causation. When applied correctly, it can provide powerful evidence of the true impact of a delaying event. When applied without a proper understanding of the project’s pre-existing delay position, however, it risks producing conclusions that are both incomplete and misleading.
davidbrodiestedman@dispute-iq.com
Disclaimer:
This article has been written by David Brodie-Stedman. The opinions expressed are solely those of the author and do not necessarily represent the views of DisputeIQ Claims Settlement Services LLC.
