Navigating the Maze of Schedule Delay Analysis Methods

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2 Navigating the Maze of Schedule Delay Analysis Methods W. Stephen Dale, SVP and General Counsel, WSP Parsons Brinckerhoff Raymond L. DeLuca, Partner, Pepper Hamilton LLP Robert M. D Onofrio, P.E., Principal, Capital Project Management, Inc.

3 Schedule Delay Analysis Methods Total time/as-planned versus as-built (pre-1960 s) Impacted as-planned (by 1972) As-built critical path (by 1969) Collapsed as-built (by 1972) Time impact analysis (early 1960 s) Prospective time impact analysis Adjusted time impact analysis Windows method Windows with wide periods

4 US Case Law Acceptance of methods in case law Methods all accepted and not accepted Individual decision case/fact specific However, overall acceptance rates are instructive

5 US Case Law Dale, W.S. and D Onofrio, R.M., 2015, Construction Schedule Delays, Thomson Reuters West. Identified 133 cases where a method was accepted or not accepted by a legal tribunal Broken out by method type Accepted, not accepted, rejected, supported, other reference

6 Frequency of Delay Analysis Methods in Case Law: United States Method: Time Impact Analysis Collapsed As-built As-built Critical Path Impacted As-planned As-planned v. As-built Source: W. Stephen Dale and Robert M. D Onofrio, Construction Schedule Delays, Thomson Reuters (2015). (133 total)

7 Total Time / As-Planned v As-Built The device of comparing the as-built progress with the original planning is a worthy and time-honored method of identifying critical delays. Norair Engineering Corp., ENG BCA 3804, et al., 90-1 BCA 22,327, at 112,204

8 Total Time / As-Planned v As-Built Not a CPM method Does not consider: Causation Concurrency Acceleration Float

9 Total Time / As-Planned v As-Built It is well settled that this total time theory of proving delay is insufficient to meet the contractor's burden to prove that government-caused delay actually delayed the overall completion of the project. The total time approach to proving delay is as unsatisfactory as the 'total cost' method of proving damages, because it assumes that the government is responsible for all of the delay. Morganti Nat l, Inc. v. United States, 49 Fed. Cl. 110, 134 (2001)

10 Total Time / As-Planned v As-Built When has it been accepted? Liability for delay is clear Equities favor recovery despite proof problems Awards based on jury verdict approach

11 Total Time / As-Planned v As-Built The ascertainment of damages is not an exact science, and where responsibility for damage is clear, it is not essential that the amount thereof be ascertainable with absolute exactness or mathematical precision: It is enough if the evidence adduced is sufficient to enable a court or jury to make a fair and reasonable approximation. Bath Iron Works Corp., ASBCA No , B.C.A. 33,158 (citations omitted)

12 Total Time / As-Planned v As-Built [C]ategorical statements that where delays are caused on both sides there is no way to apportion damages are an absurdity. Damages are not being apportioned. Damages are liquidated. Quantum of delay in terms of time is all that is being apportioned. That is an uncomplicated fact finding process. That is what courts are for. Nomellini Constr. Co. v. California, 19 Cal.App.3d 240, 246 (1971)

13 Impacted As-Planned The purpose of his As-Adjusted Schedule is to show the time extension that Teer asserts it should have received for the easement delays if it had continued to perform pursuant to the original schedule and had maintained, to the extent [Teer s expert] considered possible, the durations, restraints, and sequence of activities contained in the original schedule. Appeal of Nello L. Teer Co., 86-3 BCA P (1986).

14 Impacted As-Planned Analyses made after project completion, however, that make adjustments to attain new and revised projected scheduling depend on theoretical contingencies. They are of limited value. The calculations reflect a theoretical application to a CPM as-planned schedule that was not intended to be followed. The calculations disregard the facts that actually existed in on-site operations. Titan Pacific Construction Corp. v. United States, 17 Cl. Ct. 630, (1989)

15 Impacted As-Planned Disfavored (4C s not present) Not credible does not consider what actually happened on the project Not consistent - does not consider own party s delays Not comprehensive does not consider shifts in the critical path does not consider or masks concurrency

16 Impacted As-Planned Can be Cogent and Credible: Gulf Contracting, Inc. ASBCA Nos , 30195, 33867, 89-2 BCA 21,812, aff d, Gulf Contracting, Inc. v. United States, 23 Cl. Ct. 525, 526 (1991) aff d, 972 F.2d 1353 (Fed. Cir. 1992). Prevailed over As-built analysis Contractor analysis inherently biased ignored known contractor delays Government presentation Expert with advanced technical and construction management degrees. took into account all of the time extensions granted by modifications supported by the extensive record before us

17 Impacted As-Planned Disfavored George Sollitt Const. Co. v. U.S., 64 Fed.Cl. 229 (2005). Contractor s expert prepared 2 analyses Contractor considered the IAP more reliable Both updates & baseline were known to be inaccurate Updates win: there was no evidence presented that indicated that these updated CPM schedules were less accurate than the baseline CPM schedules.

18 Impacted As-Planned Disfavored Craft Machine Works, Inc., ASBCA No , 97-1 BCA 28,651. Impacted As-planned v. As-planned/as-built Both rejected Deviated from the CPM updates Did not incorporate the contemporaneous schedule updates Failed to accurately reflect the progress of the work Board performed its own analysis

19 As-Built Critical Path We find ourselves in the rather unique situation of being asked to determine the number of days of additional Contract performance time to which PJD is entitled by referencing a CPM that both parties agree was properly constituted in its logic and assiduously and properly maintained throughout Contract performance. This circumstance is in sharp contrast to the usual problems we encounter in dealing with CPMs where warring as built schedules are constructed by the parties after the fact because the CPM was either never properly or timely prepared or was not updated in accordance with contract scheduling requirements. P.J. Dick Inc., VABCA-5597, , , , , , 6483, BCA 31,647

20 As-Built Critical Path The Good: Based on known facts an historic analysis of the project and its delays Identifies the actual, longest path of activities that can be traced from project start to project finish Highlights events that, in hindsight, delayed the actual progress of the work Along with the baseline schedule, the as-built schedule, more specifically the as-built schedule data, is one of the most important source data for most types of forensic schedule analysis methods. Even methods that do not directly use the as-built schedule, such as the modeled additive methods, often refer to the as-built schedule data to test the reasonableness of the model. AACEI 2.2 at 23 (2011).

21 As-Built Critical Path The Bad: At the mercy of existing data Poor, inaccurate, or incomplete records can make the sequencing suspect and conclusions drawn from that sequencing doubtful Cost and time involved in accurately recreating a project from available records Can ignore float and the logic of CPM schedules Loss of context Can elevate a delay to critical status that, at the time of performance, was not considered critical or only became critical

22 As-Built Critical Path Concerns: In the absence of a schedule or other standard for performance, the as built does not depict a critical path, float, or critical delay. It does not depict how much work was done only that some was done on the date entered. It does not depict the contract completion date. It does not list the original contract schedule, the revised contract schedule, or any dates upon which work was planned in the CPM schedules. It depicts that work was done but does not indicate what manning or manpower appellant used to accomplish that work or indicate what subcontractor performed that work. It does not indicate whether the work conformed to the contract or how efficiently it was performed. It does not indicate whether appellant s workers were standing by if they performed no work. Santa Fe Engineers, Inc., ASBCA Nos , 24578, 25838, 94-2 BCA 26, 872

23 As-Built Critical Path Cogefar-Impresit USA, DOTCAB No. 2721, 97-2 BCA 29,188 As-Built v. Windows approach Windows loses not indictment of method Failure of analyst to account for known impacts As-Built ignored concurrency We are not convinced that this is a valid method of assessing responsibility for delay in contract performance.

24 As-Built Critical Path Yet, these experts of impeccable credentials, attempt to convince the Board that their methods of delay analysis are scientific and precise. Given this evidence, we question the precision and value of CPM analysis. We find that there is some merit to each side s position. Our analysis takes into account the experts contrary opinions, but we give most weight to the other evidence in the record, and draw the logical conclusions flowing therefrom. Cogefar -Impresit USA, DOTCAB No. 2721, 97-2 BCA 29,188.

25 As-Built Critical Path Found valid when the 4 C s are present: provided a reliable, comprehensive analysis regarding the sequence of contract performance. cogent and credible testimony was helpful, because no documents, including plaintiff s updates, or witnesses presented as coherent a picture of the EC/L Project s work sequence. The extant documentary record is consistent with [defendant s delay expert] s as-built analysis. Sunshine Const. & Engineering, Inc. 64 Fed Cl. 346 (2005).

26 As-Built Critical Path Word of Warning The Necessity of Documentary Evidence Appellant s failure to prepare and maintain these records is clearly inexcusable in light of the clear contract requirement that this type of information be provided to maintain the accuracy of the CPM schedule. Santa Fe Engineers, Inc. ASBCA Nos , 25838, 28687, 94-2 BCA 26,872.

27 As-Built Critical Path Word of Warning The Necessity of Documentary Evidence We are unable to accept appellant s delay expert s opinion as being reliable because for the most part we were unable to verify his opinions by looking at the factual data he relied upon. His analysis was in most part based upon unidentified information in change order and claims issue files and an analysis of his as built schedule without demonstrating how he utilized that schedule in reaching his conclusions for particular issues. Santa Fe Engineers, Inc. ASBCA Nos , 25838, 28687, 94-2 BCA 26,872.

28 Collapsed As-Built Summary of Legal Concerns: Hindsight only Contemporaneous thinking irrelevant Often based on recreated events Contingent on quality of the records Relies on the analyst s judgment Can mask Work sequences Concurrency Acceleration

29 Collapsed As-Built A cautionary tale: Youngdale & Sons Const. Co., Inc. v. U.S 27 Fed.Cl. 516 (1993) Problems aplenty: Underbid Differing site conditions (water, rock) Total Cost claim

30 Collapsed As-Built Youngdale & Sons: Schedule analysis Collapsed As-Built Based on three schedules the As Planned Schedule, the As Built Schedule, and the As Built No Delays Schedule Riddled with errors questionable as a tool to prove plaintiff's entitlement

31 Collapsed As-Built Accordingly, based on the record as a whole, the court is compelled to conclude that plaintiff's expert's report is not sufficiently credible to carry its burden by the requisite quantum of proof in light of (i) the manner in which various aspects of the report were prepared, (ii) the inability of the court to determine the precise effect the errors in plaintiff's report had on the overall delay claim of 206 days, and (iii) the lack of probative evidence as to what delays were specifically attributable to the defendant or to the plaintiff, given that plaintiff's but-for schedule was discredited by plaintiff's own expert witness. 27 Fed.Cl. at 553.

32 Collapsed As-Built How to discredit an analysis: I did not put a lot of care into this I didn't evaluate it, I didn't look at it. I just took a very rough approach to it. The result is that we have these errors. I apologize. Since I submitted this to the Court, I should have double checked for these errors. Youngdale & Sons Const. Co., Inc. v. U.S 27 Fed.Cl. 516 (1993)

33 Collapsed As-Built Donohoe Construction Co. No objection from the Board on method Adopted most of the method for its own analysis Concern from the Board about conclusions Ignored float Obscured resequencing

34 Collapsed As-Built ADT Construction Group, Inc. ASBCA No , BCA 34,200. Refers expressly to the as-built collapsed schedule analysis methodology Succeeded only by comparison Government used impacted as-planned approach Board used comparators more credible and more persuasive Modified some of the collapsed as-built findings

35 Collapsed As-Built There are circumstances where the use of [collapsed as-built method] is not only proper, but necessary, for example, where no contemporaneous schedules exist. Kenji Hoshino (Comments on the AACE Recommended Practice for Forensic Schedule Analysis, at ABA Forum 2010 Annual Meeting) But see, Amelco Electric, VABCA 3785, 96-2 BCA (1996) Contractor failed to submit schedule updates Board rejected as-built critical path and collapsed as-built analyses

36 Time Impact Analysis (Prospective) George Sollitt Constr. Co. v. United States. 64 Fed. Cl. 229 (2005). Contractor did not provide CPM updates Where updates were provided, not always useful.

37 Time Impact Analysis (Prospective) Submitting monthly updated CPM schedules was a contract requirement. Sollitt may not excuse its failure to enter delaying events on the CPM schedule updates because of the Navy s alleged failure to grant timely extensions based on those delays. If Sollitt s updated CPM schedules are of limited use in meeting its burden of establishing the critical path of the project, Sollitt is now facing the consequences of its own performance of the contract requirement to provide updated CPM schedules. George Sollitt Const. Co. v. U.S., 64 Fed.Cl. 229, 251 (2005).

38 Time Impact Analysis (Prospective) Judicial preference for retrospective Harrison Western Corp. And Franki Denys, Inc. (JV) ENGBCA Nos. 5556, 5576, 93-1 BCA What the cases say is that changes in the work and time extensions must be incorporated promptly in the progress analysis, or the critical path chart will not accurately reflect current project status. This is a statement of the obvious. What the cases say further, and what Appellant ignores, is that the successive CPM documents must reflect actual events to be useful.

39 Time Impact Analysis (Prospective) Appellant's theory would permit a claimant to establish entitlement to delay compensation as of a time months or, perhaps years, before contract completion. The fundamental requirement of contract law to mitigate damages, and thus avoid social waste, would apparently not apply because the right to compensation would be fixed. Harrison Western Corp. And Franki Denys, Inc. (JV) ENGBCA Nos. 5556, 5576, 93-1 BCA

40 Time Impact Analysis (Prospective) The utility of the scheduling provision drafted by WMATA and included in the contract is to resolve such disputes when the information is fresh and clear, not looking backward through the haze of months and years. By any standard, it is fair to the parties to adhere to such a scheduling provision. Harrison Western Corp. And Franki Denys, Inc. (JV) ENGBCA Nos. 5556, 5576, 93-1 BCA

41 Time Impact Analysis (Prospective) It is not fair, particularly for the party which drafted the provision, to use it only when it perceives that such use is to its advantage and discard it when the perception is otherwise. It is clear to me that such is what has happened in this case. Harrison Western Corp. And Franki Denys, Inc. (JV) ENGBCA Nos. 5556, 5576, 93-1 BCA

42 Time Impact Analysis (adjusted) Project Scheduling is Dynamic A contractor's initial network analysis is not cast in bronze; it is constantly changing; that is the advantage of the critical path method of scheduling. The impact of each change, or delay, on the previously charted sequences must be fitted into the network. The effect may be far-reaching. Norair Eng g. Corp., ENG BCA 3804, et al., 90-1 BCA 22,327, at 112,205

43 Time Impact Analysis (adjusted) Timing is important - Activities which were not critical prior to the new event may be rendered critical; and conversely, formerly critical activities may develop float. Whether the change or delay affects the critical path must be determined on the basis of conditions existing immediately prior to its occurrence. Norair Eng g. Corp., ENG BCA 3804, et al., 90-1 BCA 22,327, at 112,205

44 Time Impact Analysis (adjusted) [T]he only way to accurately assess the effect of the delays alleged [on the] project's progress is to contrast updated CPM schedules prepared immediately before and immediately after each purported delay. Blinderman Const. Co., Inc. v. U.S., 39 Fed.Cl. 529 (1997)

45 Time Impact Analysis (adjusted) SAE/Americon - Mid Atlantic, Inc., GSBCA Nos , 12523, 12690, 12710, 12841, 12842, 12907, 98-2 BCA 30,084. Contract requirement for time impact analysis Government rejected SAE s updates, revisions, and workarounds during performance Government provided no schedule expert at trial [D]etailed, comprehensive analysis that also accounted for concurrency

46 Time Impact Analysis (Windows) Bell / BCI Company v. United States, Bell / BCI Company V. United States, 81 Fed.Cl. 617 (2008). Contract requirement for time impact analysis Contractor expert provided framework for court s decision Government schedule expert not credible with unsupported conclusions Impact of good faith and fair dealing issues

47 Time Impact Analysis (Windows) Cogefar-Impresit U.S.A., Inc., DOTCAB No. 2721, 97-2 BCA 29,188. Government prepared Windows analysis Dispute regarding updated schedules Government-approved updates were not used to manage the project Approach overlooked a significant and well-known delay event

48 Time Impact Analysis (Windows) [The Government s expert] failed to use a current CPM schedule to evaluate the delay on the project. This is mandatory to achieve an accurate assessment of whether an item of delay affects the overall completion of the project. Cogefar-Impresit U.S.A., Inc., DOTCAB No. 2721, 97-2 BCA 29,188 (citations omitted).

49 Time Impact Analysis (Windows) Old Dominion Electric Coop. v. Ragnar Benson, Inc., Civil Action No. 3:05cv34, 2006 U.S. Dist. LEXIS (E.D. Va 2006). Initial schedule submittals suffered from significant logic problems 3rd scheduler found the schedule so flawed that it would have been easier to throw it out and start from scratch. In a windows analysis, the windows are selected on a subjective basis. One can affect the outcome of the analysis by how one chooses the windows. By selectively choosing the milestones and windows, the results can be controlled.

50 Impacted As-planned As-built critical Collapsed asbuilt Time Impact Analysis Original Plan Schedule Schedule Updates As-Built Schedule Chronology of the Delay Delay Absorbing Float Concurrent Delay Offsetting delay Pushed into a Non-Work Period Shift in the critical path Resequencing / Acceleration Constructive Acceleration Methodology Comparison Methodology TIA (adjusted) Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Windows (unadjusted) Yes Yes Yes Yes Yes Yes No Yes Yes Yes Yes Prospective TIA Yes Yes Yes Yes Yes No Yes Yes Yes Yes Yes Window wide periods Yes Yes Yes No No No No No No No No Multiple period using updates No Yes Yes No No No No Yes Yes No No Collapse stepped removal No No Yes No No No No No No No No Remove owner No No Yes No No No No No No No No Remove contractor No No Yes No No No No No No No No path using No Yes Yes Yes No No No No Yes No No updates pathcritical As-built path No No Yes No No No No No No No No Stepped insertion Yes No No No No No No Yes No No No Total time Global Yes No No No No No No No No No No Compare owner/contractor Yes No No No No No No No No No No As-planned v as-built Yes No Yes No No No No No No No No Source: W. Stephen Dale and Robert M. D Onofrio, Construction Schedule Delays, Thomson Reuters (2015).

51 Acceptance Percentage of Delay Methods - United States 100% 90% 80% 70% 60% 60% 50% 40% 30% 30% 20% 10% 0% 14% 15% 7% Method: Time Impact Analysis Collapsed As-built As-built Critical Path Impacted As-planned As-planned v. As-built Source: W. Stephen Dale and Robert M. D Onofrio, Construction Schedule Delays, Thomson Reuters (2015).

52 Frequency of Delay Analysis Methods in Case Law: United States Method: Time Impact Analysis Collapsed As-built As-built Critical Path Impacted As-planned As-planned v. As-built Source: W. Stephen Dale and Robert M. D Onofrio, Construction Schedule Delays, Thomson Reuters (2015). (133 total)

53 Frequency of Delay Analysis Methods in Case Law: Global Time Impact Analysis Time Impact Analysis Windows Prospective TIA Collapsed As-built As-built Critical Path Impacted As-planned As-planned v. As-built (177 total) Source: W. Stephen Dale and Robert M. D Onofrio, Construction Schedule Delays, Thomson Reuters (2015).

54 Acceptance Percentage of Delay Methods All Global Jurisdictions 100% Time Impact Analysis 90% 80% 70% 70% 64% 60% 50% 50% 40% 30% 20% 10% 21% 14% 23% 13% 0% Time Impact Analysis Windows Prospective TIA Collapsed As-built As-built Critical Path Impacted As-planned As-planned v. As-built (177 total) Source: W. Stephen Dale and Robert M. D Onofrio, Construction Schedule Delays, Thomson Reuters (2015).

55 W. Stephen Dale, SVP and General Counsel, WSP Parsons Brinckerhoff Raymond L. DeLuca, Partner, Pepper Hamilton LLP Robert M. D Onofrio, P.E., Principal, Capital Project Management, Inc.

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