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The Panelists
James G. Zack, Jr.
Executive Director, Navigant Construction Forum Irvine, California
Andrew D. Ness
Partner, Jones Day Washington, D.C.
Andrew D. Ness
Partner, Jones Day, Washington, D.C. Assists owners & contractors with troubled projects, complex construction & design related problems Lead counsel on wide variety of major construction disputes -- federal & state courts , domestic & international arbitrations Extensive experience with delay claims and CPM experts solving without
Drafted & negotiated construction and EPC contracts globally Fellow, American College of Construction Lawyers Chair-elect, ABA Forum on the Construction Industry
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Jim.zack@navigant.com
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 & fact 7
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.
Overview of
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
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Nomenclature Correspondence
Industry knows delay analysis methods by variety of names
Usage of names loose, undisciplined, varies by region
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Modeled Methods
Additive Modeling Delays added to a base schedule Subtractive Modeling Delays subtracted from an as-built schedule
Contemporaneous/As-Is or Contemporaneous/Split
Analyze updates in unaltered state or divide progress vs. revisions
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OBSERVATIONAL
MODELED
STATIC LOGIC
DYNAMIC LOGIC
ADDITIVE MODELING
SUBTRACTIVE MODELING
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
GROSS
PERIODIC
CONTEMPORANEOUS AS-IS
CONTEMPORANEOUS SPLIT
FIXED PERIODS
FIXED PERIODS
GLOBAL INSERTION
STEPPED INSERTION
FIXED PERIODS
GLOBAL EXTRACT
STEPPED EXTRACT
PERIODIC MODELING
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CUMULATIVE MODELING
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Sub-network float values must be considered Delay must affect critical path (if float is shared) All available schedules must be considered
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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 baseline
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If schedule activity descriptions too general or vague to ascertain scope, activities may need to be divided into more detailed components
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Baseline Schedules
RP also includes discussion of
Summarization of schedule activities
In order to reduce excessive schedule detail
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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
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If baseline exists but comparison with as-built difficult due to changes to activities, software, IDs, etc.
As-built can be created by progressing planned activities one-byone
Show discrete activities for delay events & delaying impacts If activity descriptions too vague or general to ascertain scope
Subdivide activities into more detailed components
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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
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Cause of variance
Researched independently from schedule delay analysis & rests on other contemporaneous project documentation
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
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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 path
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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
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Identify critical & near critical paths Identify & quantify concurrent & pacing delays 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
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 difficult
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Enhanced Source Validation Protocols As-Built & ID of delay events Minimum Recommended Implementation Protocols
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
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Data preparation process easier than some methods that require as-built
Method can identify & quantify acceleration
Identify critical & near critical paths Identify & quantify concurrent & pacing delays
Determine & quantify excusable & compensable delay Identify & quantify mitigation & constructive acceleration Specific Implementation Procedures & Enhancements
Global insertion or stepped insertion
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Intuitive, easy to understand, does not require as-built schedule, easy to implement
Enhanced Source Validation Protocols As-Built Validation Minimum Recommended Implementation Protocols
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 needed
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Identify critical & near critical paths Identify & quantify concurrent & pacing delays Determine & quantify excusable & compensable delay Identify & quantify mitigation & constructive acceleration Specific Implementation Procedures & Enhancements
Fixed periods vs. variable periods Global insertion vs. stepped insertion
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Can be used to identify acceleration but method cannot distinguish between acceleration & better than planned performance
Enhanced Source Validation Protocols Baseline & Update Validations Minimum Recommended Implementation Protocols
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-built
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Identify critical & near critical paths Identify & quantify concurrent & pacing delays Determine & quantify excusable & compensable delay Identify & quantify mitigation & constructive acceleration Specific Implementation Procedures & Enhancements
Choice of extraction modes Global vs. Stepped Extraction Creating a collapsible as-built CPM schedule Identification of analogous critical path
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Identify & quantify concurrent & pacing delays Determine & quantify excusable & compensable delay Identify & quantify mitigation & constructive acceleration Specific Implementation Procedures & Enhancements
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 extraction
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Involuntary delays
Substantial & not easily curable
Ownership of float
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Legal Considerations
Contractual requirements
What does contract specify?
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Technical Considerations
Purpose of analysis
Need to prove compensable vs. excusable delay, disruption vs. delay, delayed early completion, constructive acceleration, concurrency, etc.?
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Practical Considerations
Size of dispute
$100,000 or $100,000,000 dispute?
Conclusion
Schedule delay analysis process & procedures better defined now
Minimum acceptable protocols for various forensic schedule methods now developed & published Moving beyond black box
Andrew D. Ness
Partner Jones Day Washington, D.C.
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adness@jonesday.com
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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
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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 approximate concurrency by comparing two additive-modeled schedules.
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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
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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.
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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?
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Analytical assumptions/premises (Hindsight vs. Blindsight, definition of criticality, functional vs. literal concurrency)
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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.
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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.
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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).
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QUESTIONS?
Andrew D. Ness, Jones Day
202-879-7675 adness@jonesday.com