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Navigant Expert Insights Audio Webcast

Complex Construction Litigation Recent Developments in Schedule Delay Analysis

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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.

James G. Zack, Jr.


Executive Director, Navigant Construction Forum The construction industrys 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 3 CCM, CFCC & PMP

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
4

Overview of AACE Recommended Practice Forensic Schedule Analysis (RP 29R-03)


Revised April 25, 2011
James G. Zack, Jr.
Executive Director Navigant Construction Forum Irvine, California
Page 5

Jim.zack@navigant.com

Introduction & Opening Remarks

Introduction to Recommended Practice Forensic Schedule Analysis


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 & 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.

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 method
8

Overview of

Forensic Schedule Analysis

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
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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
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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
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Taxonomy of Forensic Schedule Analysis


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. revisions
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Taxonomy of Forensic Schedule Analysis


Layer 4 Basic Implementation(contd)
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

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Taxonomic Classification of Forensic Schedule Analysis


RETROSPECTIVE

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

MODIFIED / RECREATED UPDATES

SINGLE BASE MODEL

MULTIPLE BASE MODELS

SINGLE SIMULATION MODEL

MULTIPLE SIMULATION MODELS

FIXED PERIODS

VARIABLE PERIODS or GROUPED

ALL FIXED PERIODS

VARIABLE PERIODS or GROUPED

ALL FIXED PERIODS

VARIABLE PERIODS or GROUPED

FIXED PERIODS

VARIABLE PERIODS or GROUPED

GLOBAL INSERTION

STEPPED INSERTION

FIXED PERIODS

VARIABLE PERIODS or GROUPED

GLOBAL EXTRACT

STEPPED EXTRACT

PERIODIC MODELING

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CUMULATIVE MODELING

Overview of Schedule Data Validation Protocols

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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

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Baseline Schedules Recommended 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 baseline
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Baseline Schedules Recommended Enhanced Protocol


No schedule activity should carry more than 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 schedules 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

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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

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As-Built Schedules Recommended 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 IDs


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
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As-Built Schedules Recommended 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, 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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As-Built Schedules Special 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 analysis
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Schedule Updates Recommended & 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
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Schedule Updates Special 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

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Discrete Delay Events Identification & 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
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Discrete Delay Events Identification & Quantification


Quantification of delay durations & ALVs
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 delay
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Discrete Delay Events Recommended 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 ALVs

Determine criticality of significant ALVs


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
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Discrete Delay Events Recommended 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

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Overview of Method Implementation Protocols

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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
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Method Implementation Protocol (MIP) 3.1


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 path
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Method Implementation Protocol (MIP) 3.1


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

Method Implementation Protocol (MIP) 3.2


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 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
35

Method Implementation Protocol (MIP) 3.2


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

Method Implementation Protocol (MIP) 3.2


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 acceleration
37

Method Implementation Protocol (MIP) 3.3


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

Method Implementation Protocol (MIP) 3.3


Enhanced Implementation Protocols
Use every contemporaneous update Daily Progress method

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

Method Implementation Protocol (MIP) 3.3


Summary of Considerations Using Minimum Protocol
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 difficult
40

Method Implementation Protocol (MIP) 3.4


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 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
41

Method Implementation Protocol (MIP) 3.4


Enhanced Implementation Protocols
Use every contemporaneous update If logic revisions or schedule anomalies corrected, compare updates with & without changes Daily Progress Method 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 vs. Blocked Periods Bifurcation Creating progress only half step Changing contemporaneous schedules during analysis
Minor corrections allowed but must be identified & justified
42

Method Implementation Protocol (MIP) 3.4


Summary of Considerations Using Minimum Protocol
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

Caveats Using Minimum Protocols/Conditions Requiring Enhanced Protocols


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 difficult
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Method Implementation Protocol (MIP) 3.5


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 Minimum Recommended Implementation Protocols
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

Method Implementation Protocol (MIP) 3.5


Enhanced Implementation Protocols Daily Progress Method Identify critical & near critical paths Identify & quantify concurrent & pacing delays Determine & quantify excusable & compensable delay Specific Implementation Procedures &Enhancements
Fixed vs. Variable periods

Summary of Considerations Using Minimum Protocol


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

Method Implementation Protocol (MIP) 3.5


Caveats Using Minimum Protocols/Conditions Requiring Enhanced Protocols
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; networks 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

Method Implementation Protocol (MIP) 3.6


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 Minimum Recommended Implementation Protocols
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

Method Implementation Protocol (MIP) 3.6


Enhanced Implementation Protocols
List known significant delays not included in model Compare impacted to baseline, explain variances

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

48

Method Implementation Protocol (MIP) 3.6


Summary of Considerations Using Minimum Protocol
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

Caveats Using Minimum Protocols/Conditions Requiring Enhanced Protocols


Hypothetical model, not reliant on as-built data Susceptible to manipulation since only one partys delays included Since reliant on planned schedule, not account for schedule changes Not include delays in chronological order
49

Method Implementation Protocol (MIP) 3.7


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 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
50

Method Implementation Protocol (MIP) 3.7


Enhanced Implementation Protocols
List known significant delays not incorporated in schedule model Compared impacted to as-built schedule & explain variances Use accepted baseline, updates & schedule revisions

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
51

Method Implementation Protocol (MIP) 3.7


Summary of Considerations Using Minimum Protocol
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

Caveats Using Minimum Protocols/Conditions Requiring Enhanced Protocols


Hypothetical model but periodic nature incorporates as-built data Susceptible to manipulation as only one partys delays incorporated Labor intensive compared to MIP 3.6 Extremely sensitive to order of fragnet insertion
52

Method Implementation Protocol (MIP) 3.8


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 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

53

Method Implementation Protocol (MIP) 3.8


Enhanced Implementation Protocols
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

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
54

Method Implementation Protocol (MIP) 3.8


Summary of Considerations Using Minimum Protocol
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

Caveats Using Minimum Protocols/Conditions Requiring Enhanced Protocols


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 acceleration
55

Method Implementation Protocol (MIP) 3.9


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 Minimum Recommended Implementation Protocols
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 extensions

56

Method Implementation Protocol (MIP) 3.9


Enhanced Implementation Protocols
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

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 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
57

Method Implementation Protocol (MIP) 3.9


Summary of Considerations Using Minimum Protocol
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

Caveats Using Minimum Protocols/Conditions Requiring Enhanced Protocols


Summarized as-built variation may miss scope, skew analysis Reconstructing as-built schedule very fact/labor intensive & susceptible to manipulation Not suited for identification or quantification of acceleration More time consuming, more expensive to implement than other MIPs58

Overview of Analysis & Evaluation

59

Excusability & Compensability of 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 & Quantification of 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 delay


61

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 & Constructive Acceleration


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 clients 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
Partner Jones Day Washington, D.C.
Page 70

adness@jonesday.com

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.
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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
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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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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 approximate concurrency by comparing two additive-modeled schedules.
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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
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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

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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.
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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.
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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.

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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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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!!

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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.
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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

James G. Zack, Jr.


949-660-8232
jim.zack@navigant.com

Navigant Construction Forum


www.navigant.com/ncf
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