Warning – Do not try these at home! Severe financial injury could result!
The following summary assessments of preferred schedule delay analysis methods are based on Holloway Consulting’s 38 years of contemporaneous and retrospective construction project schedule and delay analysis. However, they should not be construed as expert opinions.
The United States Supreme Court decided Kumho Tire Co., Ltd. v. Carmichael, 526 US 137 (1999) in March of 1999, and expanded the role of the trial court as gatekeeper in accepting or rejecting expert analyses and testimony. Prior to Kumho, certain complex science and product liability cases invited the “Daubert challenge” to an expert’s scientific methodology and bases of opinion. Kumho now indicates that construction schedule delay analysis methodologies are subject to four criteria:
1. The construction expert’s delay claim methodology has been tested.
2. The delay analysis methodology has been subjected to publication and peer review.
3. There is a known or potential rate of error in the delay analysis, and
4. There is a general acceptance of the construction delay analysis methodology in the legal community.
The chances of an expert being successful with these methods are directly proportional to his/her skills and credibility as a CPM scheduling/ delay expert and testifying expert. The chances of a lay person or non-expert being successful with these methods are not as good as winning the Lotto.
PREFERRED METHODS
. . . THAT SHOULD SURVIVE A LEGAL CHALLENGE (IF PROPERLY PERFORMED)
VETERANS ADMINISTRATION’S VACPM HANDBOOK
In addition to setting forth the VA’s requirements for scheduling a project, the VA’s VACPM Handbook provides guidelines outlining their method of impacting a construction CPM schedule to quantify the effect of schedule delays and changes. Under the VA’s method, the contractor may be entitled to a time extension only if the scheduled completion is delayed by government-caused delays beyond the planned contract completion date.
The VA’s technique shares technical similarities with the As-planned Impacted Analysis technique discussed below. As is the case with the Corps’ EP 415-1-3, we would not expect to see this technique employed outside of government contract disputes, and probably only in disputes involving the VA.
TIME IMPACT SCHEDULE ANALYSIS (TIA)
TIA is a widely recognized technique designed to estimate the impact of schedule delays contemporaneously through an analysis of the status of the project at the time impacts or delays occur. The as-built status of the project, incorporating actual start/finish dates, changes, delays and impacts, is established up to the impact date and the schedule is recalculated. The as-planned or uncompleted portion of the schedule then forecasts the work remaining to be completed. The estimated impact of any delay-causing event can then be assessed by comparing the newly established completion date to the previous as-planned completion date. (Alternatively, the schedule can also be statused after the delay or impact event has been resolved.)
From the construction schedule expert’s perspective, this technique is similar to other techniques that rely on both the completed and uncompleted portions of the work to assess delay. However, unlike Window Analysis and Schedule Update Analysis, TIA does not necessarily rely on the contractor’s periodic schedule updates.
WINDOW ANALYSIS AND CONSTRUCTION SCHEDULE UPDATE ANALYSIS
Window Analysis focuses on identifying and quantifying gains and losses to critical path activities and project completion over sequential periods of project performance. Like the Schedule Update technique, window analysis relies on data contained in monthly or periodic schedule updates. Window Analysis focuses on actual performance versus the as-planned critical path, while the Schedule Update technique relies on a broader analysis of actual performance of all schedule float paths.
Such analyses again highlight the importance of the schedule update process in construction project management. Ideally, each schedule update will incorporate as-built activity start/finish dates, work sequence changes, logic and duration revisions, and known delays occurring since the prior update. In this manner, the contractor contemporaneously creates an as-built schedule during the project that allows it to more accurately schedule and complete the remaining activities. In the absence of progress data, the schedule updates are less likely to reflect an accurate plan for the incomplete or remaining work. For example, if contractor-caused delays, which are not incorporated into the schedule updates, have pushed the projected completion beyond the contract completion date, the contractor may be unable to recognize and mitigate its own delays (for example, by adding crews, extra shifts or overtime), thereby potentially subjecting it to the imposition of liquidated damages.
Construction scheduling should be a dynamic process, reflecting almost continuous planning, progressing and re-planning. While we recognize that schedule updates are often not available to the analyst, delay analysis techniques that utilize the schedules prepared periodically during the project to manage and control the work are the preferred delay analysis tools in today’s dispute resolution forums.
AS-BUILT BUT-FOR SCHEDULE ANALYSIS
The former popularity of the as-built but-for, which has obvious similarities to the collapsed and impacted as-built techniques, was attributed to its relative ease of preparation and presentation. With this technique, the as-built construction schedule is developed in CPM format and excusable and non-excusable events are identified and tied to affected activities. The as-built critical path of the project is then identified to determine which delays, if any, affect critical path activities. After all delays caused by the first party are removed from the analysis, the remaining schedule allegedly depicts the date the project would have been completed “but-for” the delays of the first party.
This technique is similar in some ways to the Window Analysis technique, except that the entire project is most often treated as a single “window”, or period of time. In spite of its decline in popularity, this method remains popular and has various potential applications; for example, in situations where the contractor did not prepare any updates of the baseline schedule. As with the collapsed as-built, if not properly performed, this method may not quantify concurrency and may assume that concurrent delay is the other party’s responsibility.
Contact Steve Holloway – Toll Free – at 888-545-0666 about your construction claim
Holloway Consulting
Construction Schedule and Delay Claims Consultants
12081 W. Alameda Pkwy., #450
Lakewood, CO 80228-2701
Denver Phone: (303) 984-1941
International Toll Free: (888) 545-0666
Fax: (303) 716-0432
Email: steve.holloway@disputesinconstruction.com
Blog: disputesinconstruction.com
Web: hcgexperts.com
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