navigant presentation

Navigant Expert InsightsAudio Webcast

Complex Construction Litigation – Recent Developments in

Schedule Delay Analysis

&

The Panelists

James G. Zack, Jr.

Executive Director, Navigant Construction Forum™

Irvine, California

Andrew D. Ness

Partner, Jones Day

Washington, D.C.

2

James G. Zack, Jr.

Executive Director, Navigant Construction Forum™

“The construction industry’s premier resource for thought leadership & best practices on avoidance & resolution of construction project disputes globally”

Nearly 40 years experience in construction management & dispute analysis & resolution

Involved in more than 5,000 claims throughout U.S., Canada, Egypt, China, Germany, Kazakhstan, Saudi Arabia, The Russian Federation & Trinidad & Tobago

Fellow of AACE International & Royal Institution of Chartered Surveyors

Former President, AACE International; founder of the CDR Committee; sponsor of PSP, CEP, EVP & CFCC Certifications & RP 29R-03

CCM, CFCC & PMP 3

Andrew D. Ness

Partner, Jones Day, Washington, D.C.

Assists owners & contractors with troubled projects, solving complex construction & design related problems without

Lead counsel on wide variety of major construction disputes -- federal & state courts , domestic & international arbitrations

Extensive experience with delay claims and CPM experts

Drafted & negotiated construction and EPC contracts globally

Fellow, American College of Construction Lawyers

Chair-elect, ABA Forum on the Construction Industry

4

James G. Zack, Jr.Executive Director

Navigant Construction Forum™

Irvine, California

[email protected]

Overview of AACE Recommended Practice –

Forensic Schedule Analysis

(RP 29R-03)Revised – April 25, 2011

mailto:[email protected]

Introduction & Opening Remarks

6

Introduction to Recommended Practice – Forensic Schedule

Analysis


Study of events in a schedule model to determine impact of delays, typically in a legal dispute

Until 2007 no published guidance in U.S. on forensic scheduling

RP 29R-03 published in 2007, revised in 2009 & again in 2011

Recommended Practice (‚RP‛) not intended to establish ‚standard of practice‛ concerning which forensic method must/should be used

Establishes standard protocols for individual methods

Deviation from protocols not necessarily an error

But must be based on & justified by professional judgment & fact7

Introduction

Association for the Advancement of Cost Engineering (‚AACE‛) concluded –

No agreement on one specific forensic schedule analysis method to be employed in all situations

Numerous methods are available

The method used heavily dependent upon contract, facts, applicable law, documentation, etc.

Intent of RP is to minimize procedural subjectivity by

Defining terminology

Identifying methods currently used in forensic scheduling

Classifying each method

Setting recommended procedural protocols for each method8

Overview of


9

Basic Premises & Assumptions

Forensic scheduling is distinct from project scheduling

Standard practices used in project scheduling not applicable to forensic scheduling

RP should foster consistency of practice

All methods subject to manipulation

Standard practices should minimize manipulation

No forensic method is exact

Depends on quality of documentation, accuracy of assumptions, etc.

Scheduling does not demonstrate responsibility for delay

Entitlement to damages is distinct from forensic schedule analysis

10

Scope & Focus of RP

RP covers technical aspects of forensic scheduling Defines & describes methods of delay analysis, not legal issues

Describes techniques used for factual analysis & quantification of delay using Critical Path Method (‚CPM‛) based schedule analysis

RP not intended to

Be primer on forensic scheduling

Be exhaustive treatment of CPM scheduling techniques

Override contract provisions regarding schedule delay analysis

Compete with other similar protocols

RP an advisory document

To be used with professional judgment based on experience & knowledge of schedule delay analysis 11

Nomenclature Correspondence

Industry knows delay analysis methods by variety of names

Usage of names loose, undisciplined, varies by region

RP correlates common names with taxonomic classification

Allows discussion of methods to be more specific & objective

While still allowing common names & regional variations

12

Taxonomy of Forensic Schedule Analysis

Forensic scheduling taxonomy consists of 5 layers

Layer 1 – Timing

Point in time when delay analyzed

• Prospective – Forward looking analysis

• Retrospective – Backward or hindsight analysis

Layer 2 – Basic Methods

Evaluate existing data or construct simulations or models

• Observational – Examine existing schedules to find & analyze schedule changes

• Modeled – Activities inserted or extracted to compare calculated dates

13


Layer 3 – Specific Methods

Observational Methods

• Static Logic – Compares original to final schedule logic

• Dynamic Logic – Compares sets of progressive schedule logic

Modeled Methods

• Additive Modeling – Delays added to a base schedule

• Subtractive Modeling – Delays subtracted from an as-built schedule

Layer 4 – Basic Implementation

Gross or Periodic Mode

• All schedule changes analyzed at one time or analyzed by periods

Contemporaneous/As-Is or Contemporaneous/Split

• Analyze updates in unaltered state or divide – progress vs. revisions14


Layer 4 – Basic Implementation(cont’d)

Modified or Recreated

• Modify contemporaneous updates or recreate from other records

Single Base Simulation or Multi-Base Simulation

• All changes made to single base schedule or to multiple base schedules

Layer 5 – Specific Implementation

Fixed vs. Variable/Grouped Periods

• Schedules analyzed by data date or some other update periods

Global (Insertion/Extraction) vs. Stepped (Insertion/Extraction)

• All changes made to one schedule or multiple schedule updates

15

Taxonomic Classification of Forensic Schedule Analysis

16

MODELED

ADDITIVE MODELING SUBTRACTIVE MODELING

SINGLE BASE

MODEL

MULTIPLE

BASE MODELS

SINGLE

SIMULATION

MODEL

GLOBAL

INSERTION

STEPPED

INSERTION

FIXED

PERIODS

VARIABLE

PERIODS or

GROUPED

GLOBAL

EXTRACT

STEPPED

EXTRACT

OBSERVATIONAL

STATIC LOGIC DYNAMIC LOGIC

GROSS PERIODICCONTEMPORANEOUS

AS-IS

MODIFIED /

RECREATED

UPDATES

FIXED

PERIODS

VARIABLE

PERIODS or

GROUPED

ALL FIXED

PERIODS

VARIABLE

PERIODS or

GROUPED

FIXED

PERIODS

VARIABLE

PERIODS or

GROUPED

RETROSPECTIVE

CONTEMPORANEOUS

SPLIT

ALL FIXED

PERIODS

VARIABLE

PERIODS or

GROUPED

3.1 3.2 3.3 3.4 3.5 3.6 3.7

MULTIPLE

SIMULATION

MODELS

3.8 3.9

PERIODIC

MODELING

CUMULATIVE

MODELING

Overview of

Schedule Data Validation Protocols

17

Fundamentals & Principles

Critical path (‚CP‛) = longest path

Use standard CPM calculations with proper logic

Concept of data date must be used

• CP & float can only be calculated from data date to end & back

Shared ownership of float

• Unless contract dictates otherwise

Update float preferred over Baseline float

• Float values based on schedule updates more reliable

Sub-network float values must be considered

Delay must affect critical path (if float is shared)

All available schedules must be considered 18

Baseline SchedulesRecommended Protocol

Baseline schedule = earliest, conformed plan for project

Level of detail must be sufficient for intended analysis

Data date = Notice to Proceed with no progress

At least one continuous critical path with actual work day constraints

All activities must have at least one predecessor & successor

• Except for start and finish milestones

Make certain full scope of work represented in baseline

Investigate & document

• Milestone dates that violate contract provisions

• Any other aspect of schedule that violates contract requirements

• Software settings used in baseline schedule

• Provide basis for any rectification or changes made to baseline19

Baseline SchedulesRecommended Enhanced Protocol

No schedule activity should carry more than ½ of 1% of contract value per unit of activity duration or 5% of total contract value

Create separate activities for each party

Document basis for controlling & non-controlling activities

Replace controlling constraints with logic or activities

• Except for start & finish milestones

May need to enhance level of detail or add activities beyond baseline

• Include factors external to baseline schedule’s original contract assumptions to help account for delays & impacts

If schedule activity descriptions too general or vague to ascertain scope, activities may need to be divided into more detailed components

20

Baseline Schedules

RP also includes discussion of

Summarization of schedule activities

• In order to reduce excessive schedule detail

Reconstruction of computerized CPM from hard copy data

• What hard copy data is required to do this

De-statusing a progressed schedule to create Baseline

• If baseline schedule is not available

How to perform software format conversions, if needed

21

As-Built SchedulesRecommended Protocol

If schedule updates are primary source of as-built schedule data

• Ensure data date later than delaying events

• Ensure activities to left of data date have actual start/completion dates

• Ensure activities to right of data date do not have actual dates

• Check as-built dates with other documentation

• Interview staff to evaluate reliability of schedule statusing & data

• Determine whether changes were made to activity descriptions or ID’s

• Understand extra scope so as-built data reflects additional scope

Check all critical & near critical activities + random 10% of other activities against reliable alternate sources of data to confirm dates

Accuracy of dates in as-built schedules

• Significant activity dates accurate within 1 day, other dates within 5 days

• Contractual dates (Notice to Proceed, milestones, completion) = exact dates

22

As-Built SchedulesRecommended Enhanced Protocol

Tabulate all sources of as-built schedule data

• Evaluate for reliability

If baseline exists but comparison with as-built difficult due to changes to activities, software, ID’s, etc.

• As-built can be created by progressing planned activities one-by-one

Show discrete activities for delay events & delaying impacts

If activity descriptions too vague or general to ascertain scope

• Subdivide activities into more detailed components

23

As-Built SchedulesSpecial Procedures

Creating an independent as-built schedule from scratch using the ‚Daily Specific As-Built‛ methodology

• Done to confirm accuracy of dates

Creating a fully progressed baseline schedule

• Allows direct comparison of planned vs. actual schedules

Determining ‚significant activities‛ for inclusion in an as-built schedule

• To streamline the as-built process without sacrificing quality

Creating a Collapsible As-Built Schedule

• A CPM model of the as-built schedule

Summarization of schedule activities

• To keep activities to manageable level when doing analysis24

Schedule UpdatesRecommended & Enhanced

Protocols

Recommended Protocol

Interview project scheduler, evaluate reliability of statusing data

Assemble all schedule updates so they cover entire project period

Use officially submitted schedule updates

Ensure update chain starts with validated baseline schedule

Check consistency of actual start & finish dates for each activity from update to update

For each update – identify changes to interim/final milestone dates

Check remaining duration/progress complete with other records

Recommended Enhanced Protocol

Implement protocol for baselines for planned portions of updates

Perform duration & lag variance analysis, update to update

25

Schedule UpdatesSpecial Procedures

Reconstructed updates

• Hindsight Method

• Blindsight Method

Bifurcation – Creating a progress only half step

Changing contemporaneous project schedule for analysis

• Correcting wrong actual start or finish dates

• Correcting schedule anomalies

• Brining a revision back in time to represent changed/added work

• Splitting an activity

26

Discrete Delay EventsIdentification & Quantification

Delay – Neutral event concerning liability

• Defined as activity not starting or finishing on time

Activity Level Variance (ALV) – delays to specific activities

• Waiting, changes, productivity impacts & interruptions

• Delayed relative start or extended duration

Distinguishing ALV from Project Level Variance (PLV)

Distinguishing cause of delay from effects of delay

Delay characterization independent of responsibility

Identifying & collecting delays – 2 approaches

• Cause based approach – start with causes & determine effects

• Effect based approach – start with effects & back into causes

Criticality of delay – analyze all delays, not just those thought to be critical 27

Discrete Delay EventsIdentification & Quantification

Quantification of delay durations & ALV’s

• Variance method – compares planned to actual to determine schedule variance

• Independent method– delay duration determined from project documentation, not a comparison

Cause of variance

• Researched independently from schedule delay analysis & rests on other contemporaneous project documentation

Assigning/assuming variance responsibility based on project documents

• Contractor delay

• Owner delay

• Force Majeure delay28

Discrete Delay EventsRecommended Protocol

Determine delay identification & collection approach

Tabulate sources of delay data & evaluate for reliability

Identify actual start & finish dates for each delay along with work impacted on those dates

Correlate delay event to specific activities affected

Identify, tabulate & quantify all significant ALV’s

Determine criticality of significant ALV’s

Determine or assume responsibility for delays

Quantify claim portion of each ALV for which causation has been determined

• If delay not complete work stoppage, quantify net delay

• Distinguish information delays from work performance delays

• For each delay, identify which activities impacted

29

Discrete Delay EventsRecommended Enhanced

Protocol & Special Procedures

Recommended Enhanced Protocol

Establish activity coding for various attributes of delays

Document & reconcile claimed delay duration against contract time extensions already granted

• Ensure delay quantification not overlap & not double dip

Special Procedures

Duration & lag variance analysis

• Prepare table comparing planned & actual duration of schedule activities

• Determine cause for each ALV variance

• Prepare table comparing planned to actual controlling predecessor logic of schedule activities

• Determine cause of significant variance in logic & lag values

30

Overview of

Method Implementation Protocols

31

Method Implementation Protocol (MIP) 3.1

Observational/Static/Gross

Description – Compares baseline to progressed or as-built schedule

Common Names – As-Planned vs. As-Built, Planned vs. Actual, As-Planned vs. Update, AP vs. AB

Recommended Source Validation Protocols – Baseline, Update & As-Built Validation + Delay Identification & Quantification

Enhanced Source Validation Protocols – N/A

Minimum Recommended Implementation Protocols

• Identify baseline or as-planned schedule

• Comparison progresses from early to later date

• Identify delay activities, comparing start/finish dates of each

• Concurrent & pacing delays must be identified

• Identify shorter durations & acknowledge time extensions granted 32


Enhanced Implementation Protocols

• Daily Delay Measure

Identify critical & near critical paths

Identify & quantify concurrent & pacing delays

Determine excusable & compensable delays

Identify & quantify delay mitigation & constructive acceleration

Summary of considerations using minimum protocol

• Suitable for short projects with minimal logic changes

• Simple to perform, easy to understand, simple to present

• Can be done with very basic schedules & as-built data

• As-built data must be accurate & validated

• Does not identify as-built critical path33


Caveats Using Minimum & Conditions Requiring Enhanced Protocols

• Not suitable for schedule with many update periods

• Not suitable for projects built significantly differently than planned

• Not suitable for complicated projects with multiple critical paths

• Does not consider possibility of critical path shifts within periods or across entire project

• Susceptible to manipulation by choice of as-built data used in analysis

• May fail to identify critical delays or time extensions

• Does not adequately consider concurrent or pacing delays

• Typically fails to consider changes to baseline may have been actual cause of delay

• Not suited for demonstrating acceleration

34


Observational/Static/Periodic

Description – Compares baseline schedule to schedule updates

Common Names – As-Planned vs. As-Built, Planned vs. Actual, As-Planned vs. Update, AP vs. AB, Window Analysis

Recommended Source Validation Protocols – Baseline, As-Built & Update Validation + Delay Identification & Quantification

Enhanced Source Validation Protocols – N/A


• Identify baseline or as-planned schedule

• Comparison progresses from early to later date

• Identify delay activities, comparing start/finish dates of each

• Concurrent & pacing delays must be identified

• Identify shorter durations & acknowledge time extensions granted 35


Enhanced Implementation Protocols – Daily Delay Measure

Identify critical & near critical paths for each update

Identify & quantify concurrent & pacing delay

Determine excusable & compensable delay

Identify delay mitigation & constructive acceleration

Specific Implementation & Enhancements – Fixed vs. Variable Periods

Summary of Considerations Using Minimum Protocol

• Allows for logical segmenting of longer project durations than MIP 3.1

• Suitable for short projects with minimal logic changes

• Simple to perform, easy to present & understand

• Can be done with very basic schedules & as-built data

• As-built activities must be accurate & correlated to as-planned activities

• Does not identify the as-built critical path 36


Caveats Using Minimum Protocols/Conditions Requiring Enhanced Protocols

• Provides illusion of greater detail & accuracy but not consider potential critical path shifts within periods or across project

• Does not use contemporaneous as-planned update predictions of CP

• Choice of variable periods may be abused & skew results

• Not suitable for schedule with many update periods

• Not suitable for projects built significantly differently than planned

• Not suitable for complicated projects with multiple critical paths

• Susceptible to manipulation by choice of as-built data used in analysis

• May fail to identify critical delays or time extensions

• Does not adequately consider concurrent or pacing delays

• Typically fails to consider chronological order of delays

• Not suited for demonstrating acceleration37


Observational/Dynamic/Contemporaneous As-Is

Description – Uses schedule updates to calculate loss or gain of time along the critical path

Common Names – Contemporaneous Period Analysis, Observational CPA, Update Analysis, Month-to-Month Analysis, Windows Analysis

Recommended Source Validation Protocols – Baseline & Update

Enhanced Source Validation Protocols – As-Built & ID of delay events

Minimum Recommended Implementation Protocols include

• Recognize all time extensions previously granted

• Identify CP activity that will be used to track gain or loss of time

• Determine if evaluations done on all periods or grouped periods

• While every update may not be used, all should be considered

• Compare update at start of analysis period & use longest path & least float to identify controlling chain of activities

38



• Use every contemporaneous update

• Daily Progress method



Determine & quantify excusable & compensable delay

Identify & quantify mitigation & constructive acceleration

Specific Implementation Procedures & Enhancements

• All Periods vs. Grouped Periods

• Blocked Periods

• Changing contemporaneous project schedule during analysis

– Minor corrections allowed to enhance accuracy

– All such corrections specifically identified & justified in expert report 39



• Cannot be implemented if contemporaneous schedules not exist

• Uses schedule updates familiar to parties as primary analytical tool

• Delays or time savings can be assigned to specific activities

• Data preparation quicker than methods requiring as-built schedule

• Can be used to identify & quantify acceleration

Caveats Using Minimum & Conditions Requiring Enhanced Protocols

• Analyst may determine critical path responsible for delays different than planned critical path

– Contemporaneous documentation should be provided to support this shift

• Schedule updates used in analysis must be validated as accurate

• May be difficult to distinguish non-progress from insufficient progress

• If date constraints used in updates, analysis very difficult40


Observational/Dynamic/Contemporaneous Split

Description – Identical to MIP 3.3 except that each update is divided into two parts – progress update & all other changes to update

Common Names – Contemporaneous Period Analysis, Bifurcated CPA, Half Stepped or Two Stepped Analysis, Windows Analysis

Recommended Source Validation Protocols – Baseline, Update & As-Built

Enhanced Source Validation Protocols – As-Built & ID of delay events


• Recognize all time extensions previously granted

• Identify CP activity that will be used to track gain or loss of time

• Every update may not be used, but all should be considered

• Copy each update for use in analysis, import progress, compare end dates

• Identify & import changes to schedule updates, compare end dates 41



• Use every contemporaneous update

• If logic revisions or schedule anomalies corrected, compare updates with & without changes

• Daily Progress Method






• All Periods vs. Grouped Periods vs. Blocked Periods

• Bifurcation – Creating progress only half step

• Changing contemporaneous schedules during analysis

– Minor corrections allowed but must be identified & justified42



• Allows easier identification of slippage & gains due to revisions

• Cannot be implemented if no contemporaneous updates available

• Accounts for dynamics of evolving events & conditions

• Considers dynamic nature of critical path

• Delays & time savings can be assigned to specific activities

• Data preparation process easier than some methods that require as-built

• Method can identify & quantify acceleration


• Analyst may determine CP responsible for delays different than planned CP – contemporaneous documentation needed to support this shift

• Schedule updates used in analysis must be validated as accurate

• If date constraints used in schedule updates, analysis very difficult43


Observational/Dynamic/Modified or Recreated

Description – Like MIP 3.3 & 3.4 but uses updates that were extensively modified or completely recreated – used when no updates

Common Names – Update Analysis, Recreated Update Analysis, Windows

Recommended Source Validation Protocols – Baseline & Update Validation, Reconstruction Protocol

Enhanced Source Validation Protocols – As-Built + ID of delay events


• Recognize time extensions already granted

• Identify CP activity to be tracked

• Determine whether to evaluate all periods or grouped periods

• Consider all updates & compare update at start & end of analysis

• Identify start & finish variances of critical & near critical activities 44


Enhanced Implementation Protocols – Daily Progress Method




Specific Implementation Procedures &Enhancements

• Fixed vs. Variable periods


• Can simulate MIP 3.3 & 3.4 if update modification reliable

• Requires baseline schedule & reliable source of as-built dates

• Smaller number of modifications to updates, more reliable

• Allows use of hindsight progress updates to simulate critical path

• Delays can be assigned to specific activities

• Method can identify acceleration 45



• Perceived as after the fact analysis – not have benefit of using schedules already familiar to parties

• Recreated schedule updates must be accurate in reported progress; network’s representation of contemporaneous plan & consistent with other documentation

• Progress reported for activity performance spanning more than one period must be supported by other documentation

• Relatively time consuming & costly due to substantial work to justify modifications &/or recreations

• Analyst may determine critical path responsible for delays different than planned critical path – needs documentation to justify

• Hard to distinguish variances caused by non-progress vs. slow progress

• Analyst should expect significantly more scrutiny & challenges 46


Modeled/Additive/Single Base

Description – Modeled technique that adds delays to single baseline

Common Names – Impacted As-Planned, Impact Baseline, Time Impact Analysis, Time Impact Evaluation, Fragnet Analysis

Recommended Source Validation Protocols – Baseline & Update Validation + Delay Identification & Quantification

Enhanced Source Validation Protocols – As-Built Validation


• Recognize time extensions granted

• Select planned network as unimpacted network & insert activities

• Recalculate schedule to determine delay & zero out durations of added activities, confirm no other changes to planned network

• Compare planned to impacted schedules to determine delay 47



• List known significant delays not included in model

• Compare impacted to baseline, explain variances






• Global insertion or stepped insertion

48



• Primarily used to quantify potential rather than actual delays

• Since cannot account for pacing or concurrent delays, cannot quantify compensable delays – Best used for excusable, non-compensable delay

• Can be used to identify acceleration but method cannot distinguish between acceleration & better than planned performance

• Intuitive, easy to understand, does not require as-built schedule, easy to implement


• Hypothetical model, not reliant on as-built data

• Susceptible to manipulation since only one party’s delays included

• Since reliant on planned schedule, not account for schedule changes

• Not include delays in chronological order 49


Modeled/Additive/Multiple Base

Description – Modeled technique, adds delays to multiple networks

Common Names – Windows Analysis, Impacted Update Analysis, Time Impact Analysis or Evaluation, Fragnet Analysis

Recommended Source Validation Protocols – Baseline & Update Validation, Delay Identification & Quantification

Enhanced Source Validation Protocols – As-Built Validation


• Recognize time extensions granted & identify & quantify delays to be evaluated, including source documentation

• Select planned network for the unimpacted schedule, insert delays & recalculate schedule to determine project delay

• Zero out delay durations to confirm no other changes to schedules

• Quantify net delays & gains, repeat process as often as needed50



• List known significant delays not incorporated in schedule model

• Compared impacted to as-built schedule & explain variances

• Use accepted baseline, updates & schedule revisions






• Fixed periods vs. variable periods

• Global insertion vs. stepped insertion

51



• Considers chronological order of delay better than MIP 3.6

• Can be performed throughout life of project, does not require as-built

• Considers changes to CP as they occurred but requires routine updates

• Since cannot account for pacing or concurrent delays, cannot quantify compensable delays – best used for excusable, non-compensable delay

• Can be used to identify acceleration but method cannot distinguish between acceleration & better than planned performance


• Hypothetical model but periodic nature incorporates as-built data

• Susceptible to manipulation as only one party’s delays incorporated

• Labor intensive compared to MIP 3.6

• Extremely sensitive to order of fragnet insertion 52


Modeled/Subtractive/Single Simulation

Description – Modeled technique, subtracts delays from single network

Common Names – Collapsed As-Built, But For Analysis, As-Built Less Delay, Modified As-Built

Recommended Source Validation Protocols – As-Built Validation + Delay Identification & Quantification

Enhanced Source Validation Protocols – Baseline & Update Validations


• Confirm all dates in as-built actual & collapsed extraction CPM driven

• Tabulate & justify each change made to as-built schedule model

• As-built model should contain baseline CP & longest path; contractual milestones; self-imposed & concurrent delays; all delays for time extensions given – collapsing process not involve logic adjustment

• Perform constructability analysis of collapsed as-built53



• Reconcile as-built & collapsed as-built with as-planned schedule

• Use all schedule activities included in baseline

• To account for non-work periods, use a weather calendar






• Choice of extraction modes – Global vs. Stepped Extraction

• Creating a collapsible as-built CPM schedule

• Identification of analogous critical path54



• Concept intuitively easy to understand & present

• Can isolate owner & contractor delays if sufficient detail in as-built

• Relies upon history of events

• Can be implemented without baseline or schedule updates

• Few practitioners with significant experience to use this method


• Perceived as after the fact schedule reconstruction without updates

• Creates potential of missing scope of work or skewing results

• Reconstructing as-built fact/labor intensive, susceptible to manipulation

• Assignment of logic to as-built conditions requires subjective decisions

• Indicated critical path may not reflect contemporaneous critical path

• Not suited for identification, quantification of acceleration55


Modeled/Subtractive/Multiple Base

Description – Modeled technique, subtracts delays from multiple networks

Common Names – Collapsed As-Built, Windows Collapsed As-Built, But For Analysis

Recommended Source Validation Protocols – As-Built & Update Validation + Delay Identification & Quantification

Enhanced Source Validation Protocols – Baseline Validation


• Confirm all dates in as-built actual & collapsed extraction CPM driven

• Tabulate & justify each change made to each collapsed schedule model

• As-built models should contain baseline CP & longest path; contractual milestones; self-imposed & concurrent delays; all delays for times extensions given & collapsing process not involve logic adjustment

• Perform constructability analysis & reconcile time extensions56



• Reconcile as-built & collapsed as-built with as-planned schedule

• Model & update all schedule activities & use weather calendar to model weather related non-work periods

• For each period, prepare 2 models – Use blindsight & hindsight rules






• Choice of analysis periods – Fixed vs. Variable Periods

• Order of analysis periods – work from first to last period or vice versa

• Choice of modeling increments – periodic, cumulative modeling

• Choice of extraction modes – global vs. stepped extraction57



• Accounts for changes in prospective critical path for each update

• Intuitively easy to understand & present

• Can isolate owner & contractor caused delays if sufficient data in updates

• Since relies on history of actual events requires baseline, updates & as-built schedule

• Relatively few practitioners with experience in performing methodology


• Summarized as-built variation may miss scope, skew analysis

• Reconstructing as-built schedule very fact/labor intensive & susceptibleto manipulation

• Not suited for identification or quantification of acceleration

• More time consuming, more expensive to implement than other MIP’s58

Overview of

Analysis & Evaluation

59

Excusability & Compensabilityof Delay

General rules for excusability & compensability

Look to contract for definitions

Study contemporaneous documentation for causation

Accounting for concurrent delay

Establish liability for events – owner, contractor, force majeure caused

Determine concurrency of events

60

Identification & Quantificationof Concurrent Delay

Various definitions of concurrency

Pre-requisite findings

Two or more delays –

• Unrelated & independent

• Contractual responsibility of different parties

• Involuntary delays

• Substantial & not easily curable

Functional requirements establishing concurrency

Must occur or impact same time analysis period

Each must independently delay critical path

Pacing vs. concurrent delay61

Critical Path & Float

Identifying critical path

Longest path vs. total float value

Negative float – zero float vs. lowest float value

Quantifying ‚near critical path‛

Duration of discrete delay events & analysis interval

Historical rate of float consumption

Amount of time remaining

Identifying as-built critical path

Common critical path alteration techniques

Resource leveling & smoothing

Multiple calendars

Leads & lags, start & finish constraints 62

Critical Path & Float

Various calculation modes

Schedule calculation – Retained Logic vs. Progress Override

Duration calculation – Contiguous vs. Interruptible Activity Durations

Use of data date

Judgment calls during forensic process

Frequency, duration & placement of analysis intervals

Hindsight vs. Blindsight update reconstruction

Ownership of float

63

Delay Mitigation & ConstructiveAcceleration

Differences between directed & constructive acceleration & delay mitigation

Acceleration & compensability

Delay mitigation & compensability

Elements of constructive acceleration

Entitlement to excusable delay

Notice & request for time extension

Owner failure to grant timely & complete time extension

Implied order to complete more quickly

Notice of constructive acceleration

Actual acceleration & documented damages

64

Overview of

Choosing a Forensic Scheduling Method

65

Legal Considerations

Contractual requirements

What does contract specify?

Forum for resolution

What forum will decide ultimately?

What are rules or policy for that forum?

Legal or procedural requirements

Depending on forum, what procedural requirements must the schedule delay analysis meet?

66

Technical Considerations

Purpose of analysis

Need to prove compensable vs. excusable delay, disruption vs. delay, delayed early completion, constructive acceleration, concurrency, etc.?

Source data availability & reliability

Sufficient reliable source data to support forensic schedule analysis method?

Complexity of project & dispute

Size of schedule network, number of schedule updates, number of delay events, etc.?

67

Practical Considerations

Size of dispute

$100,000 or $100,000,000 dispute?

Budget for forensic schedule analysis

What is client’s budget for forensic schedule analysis?

Time available for forensic schedule analysis

How much time does forensic scheduler have?

Expertise of forensic schedule analyst

Forensic scheduler experienced with method selected?

Custom & usage of methods on project

What method has been used on project in past?

68

Conclusion

Schedule delay analysis process & procedures better defined now

Minimum acceptable protocols for various forensic schedule methods now developed & published

Moving beyond ‚black box‛

Recommended Practice fosters more competent schedule analysis

Categorized & evaluated various forensic schedule analysis methods

Not a prescriptive document to be applied without exception but requires that forensic schedulers deviating from minimum acceptable protocols will have to justify why

69

Using the Recommended Practice – Forensic

Schedule Analysis in Dispute Resolution

Andrew D. Ness PartnerJones DayWashington, D.C.

[email protected]


Understanding the Recommended Practice

The RP does not recommend methods.

The RP does not disparage or reject any methods.

The RP was written by the expert witnesses, not the attorneys.

Authors were very aware of the potential for use in cross examination

Authors were very careful to avoid ‚weaponizing‛ the RP

Recommendations are accompanied by caveats and exceptions

71

Understanding the Recommended Practice - § 1.1

‚The RP is not intended to establish a standard of practice.‛

‚a departure from the recommended protocols should not be automatically treated as an error or a deficiency as long as such departure is based on a conscious and sound application of schedule analysis principles.‛

‚The reader should refrain from using the RP in a manner which is not consistent with its intended use, and not quote any of the contents in an out of context manner.‛

72

Understanding the Recommended Practice - III

The 134 pages of the RP use (invent) an extensive amount of new terminology, not particularly user-friendly.

In court, the RP is not a ‚gold mine,‛ but is a useful tool.

But the RP is a milestone advance in the art of forensic CPM analysis.

Common analytical framework for comparing methods

Introduces a consistent, common nomenclature

Allows discussion of best practices to leap forward

73

MIP 3.6

Method Implementation Protocol 3.6 is called ‚Modeled/Additive/Single Base‛

Better known as ‚Impacted As-Planned‛

Soundly rejected for about 20 years by every court examining the method

Will not learn this from the RP description/protocol

No overarching problems with the method noted

But several specific limitations are identified

74

MIP 3.6 – Specific Limitations

‚Suited primarily for the use in identifying and quantifying potential delays rather than actual delays.‛

‚This method can be used to quantify non-compensable time extensions, but cannot, by itself, quantify compensable delays because it does not account for concurrent or pacing delays.‛

However, ‚it is possible to analyze for approximateconcurrency by comparing two additive-modeled schedules.‛

75

MIP 3.6 – Generic Caveats (most also apply to MIP 3.7)

‚it is a hypothetical model‛

‚Susceptible to unintended or intended manipulation‛

‚Accuracy . . . for any given delay event degrades in proportion to the chronological distance of the delay event from the data date . . .‛

‚does not account for changes in logic or durations of activities‛

‚extremely sensitive to the order of fragnet and logic insertion‛ 76

MIP 3.5

MIP 3.5 is ‚Observational/Dynamic/Modified or Recreated‛

‚uses contemporaneous schedule updates that were extensively modified or ‘updates’ that were completely recreated‛

Used by those favoring ‚windows‛ analysis (MIP 3.3 or 3.4), but where no updates (or only inaccurate updates) are available.

Highly susceptible to abuse due to ‚recreation‛ of an update that was never actually generated.

77

MIP 3.5 - Caveats

‚perceived to be an after-the-fact analysis that fails to consider logic changes that would have been incorporated‛

‚To be credible, recreated schedule updates must be accurate . . ., and consistent with other project documentation‛

‚anticipate significantly more scrutiny and challenges regarding the reliability of the data and logic‛

78

MIP 3.5 – Caveats II

‚the critical path . . . may be different from that indicated as the planned critical path shown in the contemporaneous schedule updates‛ *so must provide documentation to support]

‚it may be difficult to distinguish schedule variances caused by non- progress revisions from *those+ caused purely by insufficient progress‛

79

Concurrent Delays in the RP

Concurrent delay is an important Owner defense, since a finding of concurrent delay eliminates entitlement to compensation (time extension only).

Concurrent delays occur where two independent delays (one Owner, one Contractor) both delay the project.

RP introduces a distinction between ‚literal concurrency‛ and ‚functional concurrency.‛

80

Literal vs. Functional Concurrency

‚Literal‛ concurrency is where two delays have to ‚happen at the same time‛ to be considered concurrent.

‚Functional‛ concurrency is where two delays have to happen ‚in the same measurement period‛ [most often a month, but can be longer] to be considered concurrent.

This distinction is entirely unknown in the case law; before RP unknown to most CPM experts.

81

Literal vs. Functional Concurrency - II

Not a good/bad or either/or distinction – both views lead to entirely unreasonable results once out of the zone of reasonableness.

Not at all clear this is even a useful distinction, other than to enable clearer theoretical discussion.

Just highlights the subjective, judgmental nature of schedule analysis.

82

RP Acknowledges Subjectivity

§ 1.2 ‚The level of accuracy of the answers produced by each method is a function of the quality of the data used therein,

the accuracy of the assumptions, and

the subjective judgments made by the forensic schedule analyst.‛

§ 1.1 ‚Forensic schedule analysis … is both a science and an art. As such, it relies upon professional judgment and expert opinion and usually requires many subjective decisions.‛

83

Practice Pointers

Make sure your expert is well-grounded in the RP, and can identify which Method(s) are being applied.

Walk through the RP with your expert (including §2) and make sure he has considered all the relevant factors identified, taken the steps identified.

Where there are deviations, explore them in detail, and the reasons for them. Are they convincing?

Can you risk a CPM expert today who is not intimately familiar with the RP?

84

Deposing the Opposing Expert

Create an RP checklist for use in depositions

Documents and schedules reviewed

Selection of baseline schedule

Source validation steps taken (§2)

Analytical assumptions/premises (‚Hindsight vs. Blindsight,‛ definition of criticality, functional vs. literal concurrency)

Fair Warning: This is a lot of work!!

85

Deposing the Opposing Expert - II

What Method did you utilize?

Take through analytical steps and considerations --Sections E through K for each Method.

Ask factual predicate questions (whether evaluated if this was a situation where that Method may be suitable).

Again, especially if multiple Methods may have been used, allow ample preparation time.

Lock down shortfalls and any explanation for them.

86

Closing Observations

The RP will help you most if you know it better than the expert.

Expect less when the opposing expert is facile with the RP – there are ample escape routes provided.

If the deposition goes great, expect the expert to study up on the RP by trial, and attempt to use it to get out of damaging admissions.

87

Closing Observations - II

The RP is NOT going to revolutionize delay claim trials.

The RP can help the finder of fact understand the limits of CPM analysis, and that it is more subjective than scientific.

The RP can greatly help in exposing weak analyses, bad methodologies, and manipulated results.

Over time, the RP should help drive the ‚low end‛ CPM experts out of the market (or force them to up their game).

88

89

QUESTIONS?

Andrew D. Ness, Jones Day

202-879-7675

[email protected]

James G. Zack, Jr.

949-660-8232

[email protected]

Navigant Construction Forum

www.navigant.com/ncf

