By Dr Samer Skaik
On a large proportion of internationally financed infrastructure projects, the single biggest source of delay is not the contractor. It is the employer’s own inability to hand over the site.
Land that has not been acquired. Households that have not been resettled. A right of way that runs through three private holdings and a cemetery. Electricity poles, water mains and fibre that belong to state-owned utilities with no contractual relationship to the project and no particular urgency about it. An environmental clearance sitting with a regulator that answers to a different minister. Building permits from a municipality that was not consulted during design.
None of this appears in the contractor’s risk register, because none of it was ever the contractor’s to carry. Under the standard forms including FIDIC these are employer obligations, squarely and unambiguously. The contract requires the employer to give the contractor the right of access to and possession of the site, and where it fails to do so within the time required, the contractor is entitled to time and money.
Everyone involved knows this. And yet I have read many project documents in which the delay is described in the passive voice — access was not available, the site could not be handed over — as though it happened weather-like, to nobody in particular.
Responsibility without authority
I want to be careful here, because it would be easy to write this as a criticism of the people running these projects, and that would be both unfair and wrong.
The project manager in an implementing agency is held accountable for a delay caused by land acquisition. But land acquisition is usually carried out by a different arm of government entirely, under a statutory process with its own timetable, its own compensation disputes, its own appeals. The project manager cannot direct it, cannot accelerate it, and frequently cannot even get reliable information about its progress.
The same is true of utility diversion. A power utility asked to move a transmission line for a road project has its own capital programme, its own outage constraints and its own view of who should pay. It is often a peer institution rather than a subordinate one. A letter from a project office does not move it.
So the person answerable for the delay has no authority over its cause. That is the structural problem underneath almost everything else in this post, and it explains a great deal of the behaviour that follows — particularly the reluctance to document the problem clearly, because documenting it clearly means documenting your own institution’s failure in a record that a contractor’s claims consultant will eventually read.
What the silence costs
The instinct to keep it vague is understandable and it is expensive.
Start with the obvious. The contractor is entitled to an extension of time, and to the cost of prolongation. Those costs are real, they are large on a mobilised site, and they accrue whether or not anybody is writing them down. Delaying acknowledgement does not delay accrual; it just means the eventual claim arrives as a shock with three years of compounded detail attached to it.
Then there is the effect on the contractor’s behaviour, which is rarely discussed. A contractor that cannot get access to the sections it planned to build first will resequence, and resequencing costs money and productivity. A contractor that suspects the employer will not acknowledge access delays begins protecting itself: more notices, more records, more consultants. The relationship becomes defensive long before any formal dispute exists.
And then there is the financing dimension, which on donor-funded projects is where the real institutional pain arrives. Disbursement schedules assume progress. Loan closing dates are not infinitely elastic. A project that loses two years to right-of-way problems can find itself seeking an extension of the closing date, restructuring, or in the worst cases cancelling undisbursed amounts — outcomes that are visible at a level of government where nobody knows or cares that the underlying cause was a cemetery.
The claim you cannot defend
There is a particular sequence I have now seen enough times to describe it as a pattern.
Access is delayed. The employer does not formally acknowledge it, because acknowledging it means owning it. The contractor gives notice, as it must, and the notice is not substantively answered — not refused, simply not answered. Work continues on whatever fronts are available. Months pass. The delay compounds through resequencing and reduced productivity, neither of which anybody is measuring at the time.
Two years later a claim arrives with a very large number attached to it, and the employer discovers something uncomfortable: it has almost no contemporaneous material with which to test it. The contractor has notices, correspondence, records of restricted fronts, photographs. The employer has an internal file describing a land acquisition process it did not control and did not document.
At that point the employer’s position is weak not because the claim is necessarily right, but because the employer cannot demonstrate that any part of it is wrong. Quantum is where access claims are usually vulnerable — the extension of time may be undeniable while the cost consequences are substantially overstated — but challenging quantum requires records, and by then there are none.
The lesson I draw from this is not that employers should dispute more. It is that acknowledging an access delay early costs the employer far less than it fears, and preserves the ability to argue about what that delay actually cost, which is where the money genuinely is.
The things that actually help
I have seen agencies handle this well, and the difference is almost never that they were better at acquiring land. It is that they were honest about it earlier.
The most effective single measure I have come across is unglamorous: a live access register, maintained monthly, showing every section of the site, its access status, the obstacle where there is one, the responsible institution, and the date by which access is genuinely expected. Not the date in the original plan. The date somebody actually believes.
That document does several things at once. It converts a diffuse anxiety into a list of specific, assignable problems. It gives the project manager something to take to a steering committee. It gives the supervision consultant a basis for realistic programme review. And it creates a contemporaneous record that is enormously valuable later, whichever way the argument goes, because it shows an employer managing a known problem rather than an employer surprised by one.
The second measure is sequencing the works to the land you actually have, at design stage. This sounds obvious and is routinely not done, because the programme is built on an assumption that acquisition will complete on schedule. It rarely does. A works programme that front-loads the sections already in public ownership buys months of genuine progress and reduces the exposed period.
The third is a project steering committee with the right institutions actually sitting on it — the land agency, the utilities, the relevant regulator — meeting on a fixed cycle rather than convening in crisis. Where the obstacles lie outside the implementing agency, the escalation route has to lie outside it too. A great many access problems are not technically difficult. They are simply nobody’s priority until someone senior enough is embarrassed about them in a room.
The fourth is to use the contract’s early warning machinery honestly and in both directions. The current forms require each party to warn the other of probable future events affecting progress. Employers tend to treat this as something contractors do. An employer that warns early about an access problem it can see coming is in a materially stronger position than one that stays silent and then disputes the consequences, and it is also behaving the way the contract expects.
Where an independent view helps
There is one further thing worth saying, and I will keep it brief because it touches on my own work and I would rather understate it.
The recurring difficulty in everything above is that the project team frequently cannot say upwards what it knows to be true. Telling a permanent secretary that the ministry’s own land acquisition programme has cost the project eighteen months and a substantial prolongation liability is not a career-neutral act, particularly when the person delivering the message is junior and the failure belongs to a peer institution.
A standing dispute board changes that dynamic slightly, in a way I did not fully appreciate until I had sat on a few. When an independent panel records in a site visit note that access to a particular section has not been provided and that the consequences are accruing, that observation is institutionally usable. It is not the project manager complaining about a colleague. It is an external body stating a fact. I have seen that unlock movement on utility diversions that had been stalled for a year.
That is not the primary reason to have a board. But it is a genuine secondary benefit for public employers specifically, and it is rarely mentioned.
Owning it
The argument I am making is not that public employers should be more generous to contractors. It is narrower and more self-interested than that.
Delay caused by the employer is the one category of delay the employer can actually do something about. Ground conditions are what they are. Weather is what it is. But land, permits and utilities are internal problems, and internal problems respond to attention, sequencing and escalation in a way that geology does not.
The projects I have seen handle this best were not the ones with the fewest access problems. They were the ones where somebody wrote the problems down early, in plain language, and sent the list to a room with enough authority in it to act. That is available to almost every implementing agency, and it costs nothing.
This post is the fifth in a series for public sector employers delivering infrastructure under internationally financed contracts. Related reading: The First Four Weeks, Why Early Warning Notices Matter, and When the Banks Changed the Rulebook.
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