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CONSTRUCTION SCHEDULE UPDATE ANALYSIS
Many contractors understand the importance of the planning/scheduling process, and demonstrate their commitment by diligently developing and maintaining project and construction schedules, using software programs such as Primavera, SureTrak, and Microsoft Project, in concert with short-term, look-ahead schedules. The monthly and periodic updates to these schedules play an important role in the project management and progress payment processes1. In addition, when a time-related construction delay claim or dispute arises, these schedule updates become part of expert analytical techniques such as Schedule Update Analysis, which use schedule updates to quantify gains and losses to critical path activities during sequential periods of project performance.
Ideally, each construction schedule update will incorporate as-built activity start/finish dates, work sequence changes, logic and duration revisions, and all 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 this 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 damages3.
A construction schedule update analysis becomes even more demanding when hard-copy and electronic schedule updates are unavailable or improperly prepared, and the as-built history of each window has to be reconstructed retrospectively by an expert, based on testimony, interviews and the analysis of the project information4. The readers of our newsletters will not be surprised to hear that many contractors do not take the time to prepare proper monthly schedule updates. The most common reason given by contractors is that their field staff simply does not have the time available to collect actual progress data, and only on the rare bad project does this shortcoming become relevant or important.
SIMPLIFIED CONSTRUCTION SCHEDULE ANALYSIS
A simplified construction schedule update analysis is summarized as follows:
o The as-planned critical path for June was comprised of two activities: Excavation – June 1 through June 15, and Foundations – June 16 through June 30.
o When the contractor updated and progressed the schedule on July 1, the substantial completion date had slipped seven days and the new critical path for July became: Foundations – July 1 through 7, Steel – July 8 through 22, Decking – July 23 through 31.
o The seven day delay to the completion of foundations resulted in a corresponding seven-day delay to the substantial completion date.
o At this point, the analyst set out to determine if the foundation delay was excusable or non-excusable; compensable or non-compensable. If caused by an act of God or bad weather, the delay might be excusable, but non-compensable. If caused by the owner or its agents, the delay would likely be both excusable and compensable. If caused by the contractor, the delay would likely be non-excusable, non-compensable, and may subject the contractor to a damages claim from the owner.
o As it turned out, the delay was all of the above. The contractor was only entitled to one day of compensable delay, because six days of non-excusable delay on a parallel float path had concurrent impact on the substantial completion date.
1-Compare Hull-Hazard, Inc., ASBCA No. 34,645, 90-3 BCA; with Gulf Contracting, Inc., ASBCA Nos. 30,195, 32,839, 33,867, 89-2 BCA on reconsideration, 90-1 BCA 22,393 (applying the update method which contemporaneously identifies delays and impacts to the as-planned schedule in order to assess their effects).
2-Most scheduling software allows the scheduler to retain the logic from earlier schedules or use a “progress override” which allows the software, rather than the scheduler, to change activity sequences based on the status of individual activities. In the authors’ opinion, progress override should be used sparingly, if at all, to avoid the unintended modification of the as-planned critical paths.
3-See, e.g., Hardeman-Manier-Hutcherson, ASBCA No. 11785, 67-1 BCA 6,210; Southwest Marine, Inc. DOT BCA Nos. 1497, 1651, 93-3 BCA 26,170.
4-The failure to present expert testimony regarding construction delays (usually by a scheduling expert) can defeat related claims. See, e.g., Mega Construction Corp. v. United States, 25 Cl. Ct. 735 (1992); Wilner v. United States, 26 Cl. Ct. 260 (1991).
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