Recent geopolitical instability in the Middle East has created a landscape of uncertainty that will likely affect logistics, supply chains, and the delivery of construction and infrastructure projects across the region. These developments may influence procurement, material availability, and the timely execution of the works, particularly on larger, complex projects in the Middle East, where many large-scale infrastructure and construction projects depend on specialized equipment, steelwork, or bespoke components manufactured internationally, and where programming and procurement dependencies are closely interlinked.
In practice, it is not often that the sort of regional disruption we are currently seeing will result in the immediate suspension of works. More commonly, effects will likely emerge throughout the project, manifesting in procurement delays, constrained logistics, labor mobility challenges, and disrupted sequencing. These pressures interact with existing program constraints, making assessments of program impact and/or disruption more complex.
While governments, including the United Arab Emirates (UAE), continue to implement measures aimed at maintaining economic stability and supporting business continuity, project stakeholders may nevertheless encounter circumstances that place pressure on project programs and cost forecasts. These may include:
- Supply chain disruptions;
- On-site delays, suspension, and disruption;
- Cost escalation as a result of market volatility; and
- Disrupted works as a result of insurance withdrawal, particularly that of Marine Transit insurance.
In such situations, disciplined contract administration and robust project records become critical. From the perspective of delay and quantum practitioners as well as construction lawyers, particular attention is given to how contracts address disruptive events, whether reasonable mitigation measures are undertaken, and what contemporaneous records are maintained to support any later assessment of delay or additional cost.
This article considers effective methods for demonstrating the impact that recent regional developments are expected to have on construction and infrastructure project programs. It considers the need for robust delay and quantum analysis to demonstrate such impact, as well as the types of documents that can substantiate such analysis.
Exceptional Events, Including Force Majeure: Contractual Label vs. Program and Cost Impact
Exceptional Events, including force majeure, clauses seek to allocate risk for events outside the parties’ control. Entitlement to relief under such clauses will depend on the relevant legal framework, contractual wording, and the facts.
Many projects in the region are delivered under amended standard forms of contract, such as the International Federation of Consulting Engineers (FIDIC) Red Book and the FIDIC Yellow Book, which address Exceptional Events that may affect execution. Under the standard forms, the principal relief is typically an extension of time while any entitlement to cost is subject to the applicable contractual provisions. However, this may differ depending on the specific contractual wording adopted in each contract.
That said, classifying an event as an Exceptional Event, or force majeure, is only the starting point, as beyond demonstrating compliance with any contractual notices and/or procedures, including any possible mitigation measures, it will also be necessary to demonstrate the extent of any relief sought.
From a delay perspective, the key issue is whether the event demonstrably affected the contractor’s ability to progress activities on the critical path. From a quantum perspective, where costs are recoverable under the contract, the focus shifts to whether losses were actually suffered as a result of the event.
Establishing this requires the necessary delay and quantum analyses supported by sufficient records, including baseline programs, updates, progress reports, site and vendor records, and the necessary cost data.
EOT, Delay Analysis Approaches, and the Importance of Reliable Program Data
Parties seeking to claim an extension of time (EOT) as a result of recent events may apply recognized analytical techniques to evaluate how disruptive events influence program logic and completion dates. Common techniques fall into two main categories:
- Prospective techniques where the impact of the disruptive event is forecasted; and
- Retrospective techniques where the impact is assessed after the event.
The appropriate method depends on the specific contractual requirements, available records, as well as the timing of the analysis. Prospective techniques such as Time Impact Analysis (TIA) may be used during the project, while retrospective techniques such as windows analysis (as-planned vs. as-built) are commonly applied once the full sequence of events can be assessed.
Regardless of the technique selected, any successful negotiation and award of an EOT will typically depend on the robustness of the delay analysis and the availability of supporting records and programs. In that regard, the Society of Construction Law (SCL) Protocol records that “good record keeping and good use of the programmes [during the course of a project] removes a significant amount of this uncertainty, will improve the ability to manage progress and allows for the early assessment of claims, thereby reducing the likelihood of disputes.”
On complex projects, program governance can deteriorate through irregular updates, retrospective progress adjustments, or undocumented changes in activity logic. For this reason, disputes often arise not only from disruptive events themselves but from disagreements over the reliability of the project programs and the supporting records. Concurrent delay can further complicate entitlement assessments where independent events affect the same critical activities during overlapping periods. Careful analysis of program logic, activity progress, and resource deployment is therefore required.
Potential Recoverable Costs
To the extent costs are recoverable, these may include:
- Delay Costs – Losses caused by critical delay to the project, typically demonstrated with a conventional prolongation claim;
- Disruption Costs – Losses caused by disruption to the works, typically evidenced through a loss of productivity analysis; and
- Cost Escalation – Losses caused by the increased cost of certain items.
Delay Costs
For demonstrating costs associated with critical delay, this is often assessed by reference to a profile of monthly time-related project costs for the entire project duration, from which daily time-related costs for each month can be calculated and applied to any period of delay in that month, which can then be used to calculate the total prolongation costs.
The profile of costs should be supported by the necessary cost data, such as invoices and payroll data, and the costs should be checked to ensure they have been allocated to the correct month. Only those time-related costs that are affected by the relevant delay events should be considered, and any costs that have been recovered elsewhere should be credited.
Disruption Costs
As for disruption costs, there are different methodologies for assessing this loss. Generally, the most accepted method is a measured-mile approach whereby the productivity in a non-disrupted period is compared with the productivity in a disrupted period and the difference is the loss. The resources impacted by this loss then need to be identified and the associated costs identified and/or assessed from the cost data.
Where the records are not available to perform a measured mile analysis, other methods may be used, such as an Earned Value Analysis (EVA) or a total cost (or modified total cost) approach; however, where adopting alternative approaches, caution should be taken to ensure the claimed costs relate only to the relevant disruptive events, so far as this can be reasonably demonstrated.
Cost Escalation
In terms of cost escalation losses, it may be that the contract provides for a price adjustment mechanism for certain items. If so, such mechanisms may be used and are relatively straightforward calculations. In the absence of such mechanisms, it will be necessary to demonstrate the price increase, which is the difference between what it should have reasonably cost and what it now reasonably costs.
These two costs may be possible to evidence with actual cost data i.e. invoices, however, it may be that invoices are not available to demonstrate the original cost, in which case it may be possible to rely on publicly available data. For example, historic fuel prices are typically publicly available, from which a cost escalation analysis can be undertaken.
Mitigation: Protecting the Project Timeline
Mitigation of delay is closely linked to the management of program logic and construction sequencing. In practical terms, this involves protecting the critical path and managing activities with low or exhausted float.
When delay and disruption occur, project teams may consider alternative work sequences, resource reallocations, or procurement strategies to reduce the impact on critical activities. Typical mitigation measures include:
- Reviewing impacted procurement order and assessing alternative suppliers or materials;
- Resequencing construction activities;
- Reallocating labor and equipment; and
- Modifying construction methodologies.
The effectiveness of such measures must be assessed through program analysis of activity relationships, float, and critical path sensitivity. Mitigation can also introduce secondary effects. For example, out-of-sequence working, trade stacking, or accelerated fronts may cause productivity loss, congestion, or inefficiency that requires evaluation.
Preserving Records for Future Analysis and Evidential Burden
The robustness of any delay and/or quantum analysis will depend on the quality of the supporting records. Projects with disciplined program governance, accurate progress reporting, and comprehensive document management throughout the project will be best placed to demonstrate contractual entitlement, causation, and quantification of the relief sought.
Therefore, accurately maintaining the following types of records is advisable:
- Baseline programs
- Programming data
- Change registers
- Daily reports
- Meeting minutes
- Progress records
- Labor and plant timesheets and allocation sheets
- Material delivery records
- Correspondence concerning relevant events
Conclusion
Demonstrating entitlement under Exceptional Event and force majeure clauses is a complex legal matter that warrants professional legal advice. However, maintaining well-structured, accurate records will best place parties to support and substantiate any such entitlement and relief. Moreover, an early high-level review by delay and quantum specialists can help identify potential recovery issues before they develop into formal disputes. It can also help to reveal emerging critical path vulnerabilities or specific disrupted work-fronts, allowing project teams to implement mitigation strategies before they become significant.
This article is for reference only and does not constitute legal advice. Always seek professional legal guidance for your specific situation before acting.
© Copyright 2026. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC, its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.
