delay analysis helping material

8/12/2019 Delay Analysis Helping Material

http://slidepdf.com/reader/full/delay-analysis-helping-material 1/16

his series of posts are prepared for clients seeking information on retainingHolloway

Consulting as a consultant and expert in construction schedule delay analysis.

Construction schedule delay analysis is an integral part of most delay claims and disputes

involving time-related issues such schedule delay, acceleration, liquidated damages, etc.

These schedule delay analyses are often vital to the success or failure of a case, and precautionsshould be taken to ensure that they are performed consistent with industry standards.

CONSTRUCTION SCHEDULE DELAY ANALYSIS EXPERTS

Schedule Delay Analysis is the analytical process through which an expertemploys Critical Path

Method (CPM) techniques, in concert with a forensic review of project documentation and other

relevant data, to assess and apportion the effects of delays and other impacts on the project

schedule. The results of the analysis typically establish a defined period of time for which a

party may be entitled to receive direct and/or consequential damages.

The use of retrospective CPM scheduling techniques in construction schedule delay claims has

become increasingly common over the past 30 years. This is, at least in part, a direct result of the

courts’ increasing awareness and reliance on CPM, and their growing dependence upon experts

to explain these concepts.

SCHEDULE DELAY ANALYSIS

Expert schedule analysis in delay claims often focus on a comparison of planned versus actual

schedule performance, and can be presented in five analytical steps:

Our Construction Design, Delay and Damages Claims blog and our blog onConstruction

Schedule Delay Claim Overview here at disputesinconstruction.com covers some of the basic

concepts associated with schedule, delay and damage analyses.

This post covers schedule delay concepts that most construction scheduling experts industry

professionals deal with at one time or another, including causal events, schedule delays,

concurrent delays, lost labor productivity and comparative analysis.

SCHEDULE DELAY CONCEPTS

CONCURRENT AND CAUSAL EVENTS

Construction professionals would agree that time-related disputes often involve a single delay, as

measured by the difference between the contractual substantial completion date and the actual

substantial completion date. When that delay has multiple, indivisible causes, it may not be

attributable to either party, but to several parties. For that reason, it may be more accurate to

speak not of concurrent delays, but of a single delay with concurrent causes.

Concurrency can occur in a number of different circumstances. For example:

http://www.hcgexperts.com/construction-schedule-delay-claims.php





http://www.disputesinconstruction.com/construction-schedule-delay-analysis-techniques/









1. When two or more causal events coincide in time,

2. When the impact of two or more causal events coincide in time,

3. When two or more causal events occur during the same period of time.

Concurrent events or delays can be classified as follows:

1. Excusable delay – which may form the basis of a time extension,2. Non-Excusable – where the party assumes the risk for time and costs,

3. Compensable delay – which may entitle the party to additional time and/or money,

4. Non-Compensable delay – where the party is not entitled to additional time or money.

To add additional complications, concurrent events or delays can occur in almost inexhaustible

combinations. For example:

1. An excusable delay might be concurrent with a non-excusable delay,

2. A compensable delay might be concurrent with a non-compensable delay,

3. A compensable delay might be concurrent with a non-excusable delay,

4. An excusable delay might be concurrent with a non-compensable delay.Finally, entitlement and damages resulting from the above depends in large part on whether the

events or delays occur on critical work activities or activities with “float”. (Schedule activity

float will be addressed in detail in a future article).

SCHEDULE DELAY APPORTIONMENT

Triers-of-fact often prefer to apportion delay responsibility between the parties, but the

interacting nature of events and delays and/or insufficient documentation of delays sometimes

makes apportionment difficult. Where delay is caused by concurrent, critical path, compensable

causal events, and depending on the dispute forum, neither party may be able to recover

damages1. Even if the delay can be apportioned, a party may not be allowed to recover all of its

delay costs unless it can also allocate the damages to the specific causal event(s)2.

If the owner cannot separate or distinguish its delay from that of the contractor, the owner may

be unable to collect liquidated damages. Thus, a contractor may avoid the assessment of

liquidated damages when its own critical path delays are concurrent with owner-caused critical

path delays and when the owner cannot apportion responsibility3. A common deciding factor is

whether one or more concurrent delaying events affect the critical path to substantial

completion.

When owner-caused events delay the critical path, the contractor may chose to relax its

performance of non-critical work, so long as the relaxation does not adversely impact project

completion. However, the contractor should carefully

weigh the risks associated with a voluntary relaxation of work activities and not get caught in a

“hurry-up and wait?” trap.

SCHEDULE DELAY DAMAGES

Events such as contract changes, errors and omissions, contractor performance problems, acts of

God and delays or suspensions of parts of the work, can delay and otherwise adversely impact



the project schedule and increase the cost of construction. The impact of these problems can

include:

1. Direct and consequential costs due to extension of the project completion, and

2. Additional labor costs due to the loss of labor productivity.

When a contractor’s work is delayed, the following categories of additional costs may beincurred: extended general conditions, equipment inefficiency costs, increased direct labor costs

due to lost productivity, unabsorbed home office overhead, actual interest or financing costs,

labor, material and subcontractor escalation, and lost profits.

Owners can also experience increased costs when delay occurs. Examples of these costs include

the reasonable return or interest on the completed asset, lost profits, extended home office

overhead, extended job site overhead, interest and financing expenses, asset depreciation, costs

of retaining architects, engineers and consultants for the delay period, and compensable delay

damages incurred by other prime contractors.

The Holloway Consulting Group is an internationalconstruction consulting firm, and one of our roles isserving clients as CPM Scheduling Consultants. Some ofThe Holloway Consulting Group’s experiences as CPMScheduling Consultants are shown at ConstructionDesign, Schedule Delay and Damages Claims and ourblog at Construction Schedule Delay Claims covers someof the basic schedule delay concepts that we use as CPMScheduling Consultants.

CPM SCHEDULING CONSULTANTS | CRITICALPATH DELAYS





http://www.disputesinconstruction.com/project-schedule-delay-analysis-methods-listing/








As CPM Scheduling Consultants, our schedule analyses

http://www.disputesinconstruction.com/wp-content/uploads/2011/08/concurrent-excusable-and-nonexcusable-delays.jpg



tend to focus on the critical path and delay events thatimpact the critical path (See red activities in abovegraphic). This restricted focus on the critical path is based

on a concept called “primacy of delay”, which presents theargument that only delays to the critical path aremeaningful in assessing impacts to the project completiondate. Delays to non-critical path activities merely absorbexisting float and any additional float created by criticalpath delays. While the foregoing may be true in general, there arecertain circumstances where it may be appropriate to

consider delays to non-critical activities in the assessmentand allocation of delay-related damages. One school ofthought presents the argument that non-critical delay ismerely absorbing the float created by the critical pathdelay and, therefore, is not truly concurrent. This argument is often applied in both WindowAnalysis and the As-built But-for Analysis, and would make

some sense if the non-critical delay was dependent on thecritical path delay. For example, an owner’s critical delayto the approval of a finish hardware schedule may alsocause delay to the non-critical fabrication of the doorbucks.

But what of the situation when the non-critical delay istruly independent of the critical path delay? The argumenthas then been made that the non-critical delay is onlyabsorbing float created by the critical path delay, but whenthe critical delay is removed, part or all of the non-criticalpath delay may then become critical. The answer to suchquestions can have direct bearing on the allocation ofdelay-related damages.

http://www.disputesinconstruction.com/schedule-window-analysis-schedule-delay-analysis/




http://www.disputesinconstruction.com/construction-schedule-delay-analysis-techniques-2/








GOVERNMENT CPM SCHEDULE GUIDELINES

The genesis of private sector construction CPMscheduling and schedule delay evaluation techniques can

be found in schedule-related government contractdisputes decisions from the U.S. federal court system,along with administrative guidelines issued by variousgovernment agencies such as the Veteran’s Administration (VA), U.S. Army Corps ofEngineers (Corps), Boards of Contract Appeals (BCA),etc. In particular, relevant decisions of the U.S. Court ofClaims,General Services Board of Contract Appeals,

Armed Services Board of Contract Appeals, and theVeterans Administration Board of Contract Appealsprovide direction and understanding of the elementsrequired using CPM schedules to prove constructionschedule delay.

VA’S VACPM HANDBOOK

In addition to setting forth their requirements for CPMscheduling of a project, the VA’s VACPM Handbookprovides guidelines outlining their method of impacting aCPM schedule to quantify the effect of delays andchanges. Under the VA’s method, the contractor may beentitled to a time extension only if the scheduledcompletion is delayed by government-caused delays

beyond the planned contract completion date. The VA’s technique is similar in some ways to the As-plannedImpacted Schedule.

http://www.denver.va.gov/




http://www.usace.army.mil/Pages/default.aspx



http://www.wifcon.com/courtgao.htm



http://www.uscfc.uscourts.gov/



http://www.gsbca.gsa.gov/



http://www.disputesinconstruction.com/as-planned-impacted-schedule-analysis-acceleration-labor-productivity-claims/
















CORPS’ MODIFICATION IMPACT EVALUATION GUIDE

The Corps’ Modification Impact Evaluation Guide EP 415-1-3 presents a widely recognized technique for evaluating

the effect of delay on project completion. The Corps’ CPMtechnique is similar, in some ways, to the Time ImpactAnalysis (TIA) technique that is discussed here.

CLOSING

In our role as CPM Scheduling Consultants, we advise ourclients that most construction owners, architects and

contractors would benefit from a better working knowledgeof the CPM scheduling and schedule delay conceptsaddressed here at disputesinconstruction.com. The Holloway Consulting Group, LLC

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 38years of contemporaneous and retrospective construction

project schedule and delay analysis. However, they should not beconstrued as expert opinions. The United States Supreme Court decided Kumho TireCo., Ltd. v. Carmichael, 526 US 137 (1999) in March of

1999, and expanded the role of the trial court asgatekeeper in accepting or rejecting expert analyses andtestimony. Prior to Kumho, certain complex science andproduct liability cases invited the “Daubert challenge” to anexpert’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 topublication and peer review.

3. There is a known or potential rate of error in the delayanalysis, 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 andcredibility as a CPM scheduling/ delay expertand testifyingexpert. The chances of a lay person or non-expert beingsuccessful with these methods are not as good as winningthe 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 forscheduling a project, the VA’s VACPM Handbook providesguidelines outlining their method of impacting a

construction CPM schedule to quantify the effect ofschedule

delays and changes. Under the VA’s method, the contractormay be entitled to a time extension only if the scheduledcompletion is delayed by government-caused delaysbeyond the planned contract completion date.



The VA’s technique shares technical similarities with theAs-planned Impacted Analysis technique discussedbelow. As is the case with the Corps’ EP 415-1-3, we

would not expect to see this technique employed outsideof government contract disputes, and probably only indisputes involving the VA.



TIME IMPACT SCHEDULE ANALYSIS (TIA)

http://www.disputesinconstruction.com/wp-content/uploads/2011/09/Time-IMpact-Analysis-2.jpg



TIA is a widely recognized technique designed to estimatethe impact of schedule delays contemporaneously throughan 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, delaysand impacts, is established up to the impact date and theschedule is recalculated. The as-planned or uncompletedportion of the schedule then forecasts the work remainingto be completed. The estimated impact of any delay-causing event can then be assessed by comparing thenewly established completion date to the previous as-

planned completion date. (Alternatively, the schedule canalso be statused after the delay or impact event has beenresolved.)

From the construction schedule expert’s perspective, thistechnique is similar to other techniques that rely on both thecompleted and uncompleted portions of the work toassess delay. However, unlike Window Analysis and

Schedule Update Analysis, TIA does not necessarily relyon the contractor’s periodic schedule updates.

WINDOW ANALYSIS AND CONSTRUCTION SCHEDULE UPDATE

ANALYSIS

Window Analysis focuses on identifying and quantifyinggains and losses to critical path activities and projectcompletion over sequential periods of projectperformance. Like the Schedule Update technique,

window analysis relies on data contained in monthly orperiodic schedule updates. Window Analysis focuses onactual performance versus the as-planned critical path,while the Schedule Update technique relies on a broaderanalysis of actual performance of all schedule float paths.



Such analyses again highlight the importance of the

http://www.disputesinconstruction.com/wp-content/uploads/2011/09/Time-Impact-Analysis.jpg



schedule update process in construction projectmanagement. Ideally, each schedule update willincorporate as-built activity start/finish dates, work

sequence changes, logic and duration revisions, andknown delays occurring since the prior update. In thismanner, the contractor contemporaneously creates an as-built schedule during the project that allows it to moreaccurately schedule and complete the remaining activities.In the absence of progress data, the schedule updates areless likely to reflect an accurate plan for the incomplete orremaining work. For example, if contractor-caused delays,

which are not incorporated into the schedule updates,have pushed the projected completion beyond thecontract completion date, the contractor may be unable torecognize and mitigate its own delays (for example, byadding crews, extra shifts or overtime), thereby potentiallysubjecting 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 areoften not available to the analyst, delay analysistechniques that utilize the schedules prepared periodicallyduring the project to manage and control the work are thepreferred delay analysis tools in today’s dispute resolutionforums.



AS-BUILT BUT-FOR SCHEDULE ANALYSIS

http://www.disputesinconstruction.com/wp-content/uploads/2011/09/Asbuilt-but-for-analysis.jpg



The former popularity of the as-built but-for, which hasobvious similarities to the collapsed and impacted as-builttechniques, was attributed to its relative ease of

preparation and presentation. With this technique, the as-built construction schedule is developed in CPM formatand excusable and non-excusable events are identifiedand tied to affected activities. The as-built critical path ofthe project is then identified to determine which delays, ifany, affect critical path activities. After all delays causedby the first party are removed from the analysis, theremaining schedule allegedly depicts the date the project

would have been completed “but-for” the delays of the firstparty.

This technique is similar in some ways to the WindowAnalysis technique, except that the entire project is mostoften treated as a single “window”, or period of time. Inspite of its decline in popularity, this method remainspopular and has various potential applications; for

example, in situations where the contractor did notprepare any updates of the baseline schedule. As with thecollapsed as-built, if not properly performed, this methodmay not quantify concurrency and may assume thatconcurrent delay is the other party’s responsibility.

RETURN TO SCHEDULE DELAY TABLE OF CONTENTS 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

08807081801

delay analysis helping material

Documents