Forensic Schedule Analysis Chapter 2: Delay Analysis On .
Forensic Schedule Analysis – Chapter 2:Delay Analysis on Non‐CPM Scheduled Projects1James G. Zack, Jr., CCM, CFCC, FAACE, FRICS, PMP2&Steven A. Collins3Abstract – AACE’s Recommended Practice 29R‐03 – Forensic Schedule Analysis,provides detailed insight into how CPM based schedule delay analysis should beperformed. This RP provides thorough and detailed protocols for each of thenine methodologies identified.However, industry surveys from around theglobe indicate that a substantial portion of construction projects do not employcritical path method scheduling techniques. Other industry studies indicate thata large percentage of projects complete later than planned. Therefore, it can onlybe concluded that there are a large number of delays and delay claims onprojects that do not use CPM schedules.RP 29R‐03 offers no guidanceconcerning the performance of schedule delay analysis if there are no CPMschedules on the project.This paper presents recommendations on howschedule delay analysis can be performed on projects using nine different non‐CPM scheduling techniques.The paper also discusses the five types ofconstraints present on most, if not all, construction projects and how theseconstraints must be used in non‐CPM schedule delay analysis. The goal of this1The opinions and information provided herein are provided with the understanding that the opinions andinformation are general in nature, do not relate to any specific project or matter and do not necessarily reflect theofficial policy or position of Navigant Consulting, Inc. Because each project and matter is unique and professionalscan differ in their opinions, the information presented herein should not be construed as being relevant or true forany individual project or matter. Navigant Consulting, Inc. makes no representations or warranties, expressed orimplied, and is not responsible for the reader’s use of, or reliance upon, this paper, nor any decisions made based onthis paper.2Executive Director, Navigant Construction Disputes Forum, the industry’s resource for thought leadership and bestpractices on avoidance and resolution of construction project disputes globally, based in Irvine, CA.3Director, Navigant Consulting, Inc. located in Boston, MA. Navigant Consulting, Inc. - 2012Page 1
paper is to initiate Chapter 2 of RP 29R‐03 – Forensic Schedule Analysis onProjects without CPM Schedules.IntroductionAACE’s Recommended Practice (“RP”) 29R‐03 was issued initially on June 25, 2007. Ithas been twice revised, the first time on June 23, 2009 and more recently on April 25,2011. The purpose of this RP, however, has never changed. The stated purpose is setforth in Section 1.1 as follows:“The purpose of AACE International’s Recommended Practice 29R‐03Forensic Schedule Analysis is to provide a unifying reference of basictechnical principles and guidelines for the application of critical pathmethod (“CPM”) scheduling in forensic schedule analysis.”The RP provides detailed insight into the performance of schedule delay analysis andthorough protocols for forensic scheduling using CPM schedules. However, the currentRP 29R‐03 does not contain any discussion concerning schedule delay analysis on thoseprojects executed without CPM schedules nor could the authors locate any currentliterature on forensic schedule analysis on non‐CPM schedules.Industry surveys indicate that a substantial percentage of projects executed globally donot use CPM scheduling. The Chartered Institute of Building (“CIOB”) in their surveyof the U.K. construction industry found that only 14% of the respondents hadexperience with fully linked critical path networks on their projects. Another 8% of therespondents had experience with “ a partially linked network to show some of thepriorities and sequence of tasks, but without the benefit of a dynamic network.” Theremaining 78% of the survey respondents used Bar Charts (54%); Time ChainageDiagrams (1%); Line of Balance Diagrams (1%); Flow Charts (3%); meeting minutes(11%); and correspondence (8%) to manage time on their projects. The CIOB report alsonoted that a similar survey in Australia found that in over 1,000 construction schedules Navigant Consulting, Inc. - 2012Page 2
examined, less than 10% had fully developed schedule logic.4 In a similar wide rangingsurvey of the construction industry and how it views CPM scheduling it wasdetermined only 47.6% of the owners responding to the survey indicated that CPMscheduling was always required on their projects. Contractors participating in thissurvey reported that when CPM scheduling is not required in their contractsapproximately 33% do not use the CPM scheduling methodology.5In a construction industry survey released in December 2011 84% of the respondentsreported that they had experienced delayed completion on their projects. The averagedelay was 17% over the planned or contracted time of completion. Further, 76% of therespondents had experienced disputes and claims on their projects.6 Thus, it can beconcluded that there are a large number of delays on projects that were completedwithout CPM schedules. It can be further concluded that there are a large number ofrequests for time extension and/or delay claims on projects executed without CPMschedules.Forensic schedule analysis is a retrospective – backward looking – schedule analysis.That is, an event occurred that delayed the project. Under most contracts, the affectedparty (typically the contractor) is required to provide written notice of potential delay tothe other party (typically the owner). Once a delay event has arisen the contractor istypically required under the contract to submit a time extension request (eitherexcusable or compensable) and document liability, causation and damages related tothe delay. The contractor’s project manager or scheduler prepares the time extension asthe time the impact is defined. This paper deals exclusively with the delay aspect of theconstruction claims equation; that is, how to prove the extent of the delay arising froman event.4“Managing the Risk of Delayed Completion in the 21st Century”, Chartered Institute of Building, Englemere,Kings Ride, Ascot, Berkshire, U.K., 2008.5Galloway, Patricia D., “CPM Scheduling and How the Industry Views Its Use”, AACEI International Transactions,CDR.07, 2005.6“Mitigation of Risk in Construction: Strategies for Reducing Risk and Maximizing Profitability”, McGraw HillConstruction Research & Analytics, Bedford, MA, 2011. Navigant Consulting, Inc. - 2012Page 3
Since forensic scheduling is retrospective, forensic schedulers typically are not retaineduntil the delaying event or even the entire project is complete. Once on board, if theforensic scheduler finds that the project was executed without any CPM scheduling,then RP 29R‐03 offers no guidance concerning non‐CPM delay analysis. This paperoutlines some procedures for performing schedule delay analysis in the absence of CPMschedules. It presents an outline of how to perform schedule delay analysis in thefollowing situations where no schedules or non‐CPM‐based schedule only informationis available. No project schedules Bar Chart/Gantt Chart Schedules Milestone Schedules S Curves Linear Schedules Critical Chain Schedules Line of Balance Schedules Pull Planning or Location Based Schedules Rolling Wave SchedulingForensic schedulers are typically required to deal with schedules that were preparedduring project execution.If a forensic scheduler is retained to perform a forensicschedule analysis on a project that had no CPM schedules the scheduler must deal withthis fact and derive a method for analyzing delays on the project. The problem facingthe forensic scheduler in this situation is that non‐CPM schedules generally do notshow the logical relationships between activities. Thus, on a Bar Chart, for example, ifActivity A is delayed in its start or completion this does not necessarily mean thatActivity B is subsequently delayed or even impacted. The forensic scheduler must finda way to define logic relationships between activities in order to demonstrate (1) thatthese relationships actually existed on the project even though they were not explicitlyshown on a schedule and (2) that a delay to a specific activity or set of activities actuallyresulted in an impact to the end date of the project. Navigant Consulting, Inc. - 2012Page 4
Forensic schedulers recognize that the fundamental weakness of a Bar Chart or a non‐CPM schedule is that a critical path cannot be readily identified. Likewise, the criticalpath cannot be ascertained by normal scheduling methods. Therefore, to identify acritical path and analyze delays along this critical path forensically, the forensicscheduler has to employ special methods. This paper outlines the special methods to beused when defining the logic relationships between activities on a non‐CPM schedule inorder to ascertain a critical path and analyze delays to the project’s end date.A Theory of Constraints Applied to Non‐CPM Schedule Delay AnalysisEvery project is faced with constraints. These are factors, either internal or external,which affect when various activities on the project can be scheduled.AACEInternational defines the term “constraint” as follows –“CONSTRAINT – In planning and scheduling, any external factor thataffects when an activity can be scheduled. A restriction imposed on thestart, finish or duration of an activity.The external factor may beresources, such as labor, cost or equipment, or, it can be a physical eventthat must be completed prior to the activity being restrained. Constraintsare used to reflect project requirements more accurately. Examples of dateconstraints are: start‐no‐earlier‐than, finish‐no‐later‐than, mandatory start,and as‐late‐as‐possible.”7There are five types of constraints that may affect a project schedule.They arepresented below in the order that they should be applied to forensic scheduling – that isfrom “hard” or mandatory logic to “soft” logic. The application of these constraints inthe order presented is critical as they move from a “must comply” status to a “may beable to change” status as the forensic scheduler applies them to a schedule. The fivetypes of constraints a forensic scheduler must consider, and the order in which they7AACE Recommended Practice 10S-90 – Cost Engineering Terminology, AACE International, Morgantown, W.V.,December 13, 2011, page 21. Navigant Consulting, Inc. - 2012Page 5
must be applied, when analyzing schedule delay in a non‐CPM schedulingenvironment are the following –1. Physical constraints (also known as “hard” logic) – These logic constraints haveabsolute priority over all other constraints simply because, as Chief EngineeringOfficer Montgomery Scott frequently stated to Captain Kirk, no one can “ changethe laws of physics.”Physical constraints or hard logic exist on every project.Logical relationships such as one must construct the foundation before erecting thewalls which must be completed prior to constructing the roof are examples ofphysical constraints. Site access may be another example of a physical constraint. Ifthe project is being constructed on a site with only a single access road then this maymandate the manner in which the project is constructed.2. External constraints – External constraints are those constraints imposed on theproject by an outside party over which neither the owner nor the contractor canexert any control. Examples of external constraints may be environmental permitrestrictions requiring that the work of the project may not continue past May 1st norcommence again until after September 15th in order to protect the environment on ornear the project site. Noise ordinances may restrict working hours on the projects to7:00 AM to 5:00 PM, Monday through Friday with no weekend work allowed.3. Contract constraints – Contract constraints are those constraints imposed by theterms and conditions of the contract. Owners have the ability to impose numerousconstraints by including them in their contracts.Contractors, once they haveexecuted the contract, have little ability to change such constraints unless a changeorder is granted. A prison authority may require that “All work on Building 1 shallbe completed within 270 days after issuance of Notice to Proceed (“NTP”). All workon Building 2 shall be completed within 360 days after issuance of NTP ” and so onand so forth. A municipality may require, by contract “All work on the contractshall cease, all open trenches shall be covered entirely and all roads shall be fullyopened to traffic during the period between May 15th and September 15th” in order Navigant Consulting, Inc. - 2012Page 6
to provide vacationers access to the area during the summer season.Suchcontractual requirements force the contractor to proceed in a certain manner or riskbeing default terminated for a material breach of contract.4. Resource constraints – Resource constraints may be caused by internal and/orexternal situations.Some examples of external resource constraints include ashortage of skilled labor in the project area; a shortage of critical materials; availabledelivery periods for critical equipment if the project is in a remote location; and longlead items necessary to complete the work. If the contractor owns only one 100 toncrane and did not include the rental cost of a second 100 ton crane in its bid, this isan internal resource constraint for which the contractor bears the risk.If thecontractor owns two paving machines but one is tied up on another project, which istaking longer than planned, this too may cause an internal resource constraint thatmust be considered in the as‐planned schedule.5. Preferential logic constraints – Preferential logic is defined as the “Contractor’sapproach to sequencing work over and above those sequences indicated in orrequired by contract documents.Examples include equipment restraints, crewmovements, form reuse, special logic (lead/lag) restraints, etc., factored into theprogress schedule instead [of] disclosing the associated float times.”8 This isfrequently referred to as “soft logic” since it is not imposed by physical orcontractual constraints. When this logic is used as part of the contractor’s plan forprosecuting the work, to the forensic scheduler this is a constraint nevertheless.Once the contractor plans their means and methods (based upon this preferentiallogic) it typically commences work following this plan. The plan itself is, therefore,a constraint albeit a self‐imposed one. The forensic scheduler performing scheduledelay analysis must treat preferential logic as a constraint on schedule activities atleast at the outset of a project simply because the initial project planning defined thelogic of the activities in the field.8Ibid, page 78. Navigant Consulting, Inc. - 2012Page 7
Forensic Scheduling in Non‐CPM Schedule Delay AnalysisThis paper outlines a methodology for forensic schedule analysis of delays on a non‐CPM scheduled project and discusses some of the documentation that a forensicscheduler should review in order to document that the schedule used for delay analysisis reasonable, reliable and accurately represents the schedule the contractor actuallyfollowed during prosecution of the work.It is critical that the forensic schedulerdocument a baseline schedule to demonstrate that the contractor had a reasonable andachievable plan to construct the project at the outset. Since U.S. Courts recognize thatproject schedules are dynamic in nature, then reasonably accurate schedule updates arealso required in order to properly analyze project delays in litigation.9It isacknowledged that all of the cited cases dealt with schedule delay analysis performedon CPM schedules. However, the logic and thinking underlying these decisions makesit likely that courts and arbitration panels are likely to apply similar rules in non‐CPMdelay situations.Delay Analysis – No project schedulesPerhaps the toughest challenge a forensic scheduler faces is to prepare and present aschedule delay analysis on a project which had no schedules. Since there are noschedules on the project, a baseline schedule and a series of schedule updates must beconstructed in order to demonstrate schedule delay.Methodology – It is recommended that the forensic scheduler employ the followingmethodology.9George Sollitt Construction Company v. U.S., 64 Fed. Cl. 229 (2005); Sterling Millwrights, Inc. v. U.S., 26 Cl. Ct.49, 75 (1992); Fortec Constructors v. U.S., 8 Cl. Ct. 490, 505, aff’d, 804 F.2d 141 (Fed. Cir. 1986); BlindermanConstruction Company v. U.S., 39 Fed. Cl. 529 (1997). Navigant Consulting, Inc. - 2012Page 8
Baseline Schedule –1. Review all contract documents and drawings to determine the scope of work, theconditions of the contract and determine what physical, external and contractualconstraints were applicable to the work.2. Determine how these constraints affected the plan for the work.3. Review the contractor’s bid to ascertain the activities or portions of the work bid andthe cost and resources calculated for each activity or portion of the work.4. Determine whether the bid included the full scope of work and if not, whatportion(s) of the scope of work were left out.5. Document the work left out so that it may be included in the baseline schedule theforensic scheduler will construct for analytical purposes.6. Make a judgment on whether there were sufficient resources to accomplish the fullscope of work within the contractual time of performance.Document allassumptions/bases and analyses thereof.7. Based on availability, interview the estimator(s) who prepared the bid, the projectmanager and superintendent and trade foremen (the project team) to document theinitial “plan” for the work.8. Determine whether the plan was successful at least at the outset and how long thecontractor was able to follow this plan.9. If the plan was not successful initially, determine from interviews why not andprepare appropriate documentation. Navigant Consulting, Inc. - 2012Page 9
10. Review daily, weekly and monthly reports from the first 1 to 3 months after NTP todetermine if there were any changes or delays to the work during this initial period.11. If there were none, and relying on the assumption that the initial period of the workmost likely followed the initial plan, examine project documents to determine whatevents occurred and the duration of each event.12. Establish a list of activities and a work breakdown structure (“WBS”) codingstructure.13. Construct a computerized fully linked CPM baseline schedule based upon theinformation gathered in the previous steps.14. Apply the following constraints, in order, as and if applicable –a. Physical constraints – First, determine what physical constraints affected thework by determining what activities physically had to be complete prior toother activities starting; what activities had to be partially completed beforefollow on activities can start and what percentage the activity had to becomplete; etc.Once physical constraints are identified and calculated,incorporate these constraints.b. External constraints – Second, determine what external constraints affectedthe plan such as local permitting requirements, environmental restrictions,noise ordinances, etc.These constraints come second in the order ofapplication as they are typically imposed by governmental entities overwhich neither the owner nor the contractor has any control. Input theseconstraints into the draft schedule and make appropriate adjustments asneeded. Navigant Consulting, Inc. - 2012Page 10
c. Contract constraints – Third, determine from the terms and conditions of thecontract what constraints were imposed by the owner. Since the forensicscheduler is performing a retrospective schedule analysis, unless it can bedetermined from project documentation that the owner specifically waivedone or more of the contract constraints,
Forensic Schedule Analysis is to provide a unifying reference of basic technical principles and guidelines for the application of critical path method (“CPM”) scheduling in forensic schedule analysis.” The RP provides detailed insight into the performance of schedule delay analysis and
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