15.4 Measuring the Delay
Library | Virginia Construction Law Deskbook (Virginia CLE) (2019 Ed.) |
15.4 MEASURING THE DELAY
15.401 Schedule Delay Analysis Methods.
A. Choice of Method. According to the AACE Recommended Practice 29R-03, 56 there are 11 factors to be considered when choosing a forensic schedule analysis method:
• | Contractual requirements; | ||
• | Purpose of analysis; |
[Page 628]
• | Source data availability and reliability; | ||
• | Size (value) of the dispute; | ||
• | Complexity of the dispute; | ||
• | Budget for forensic schedule analysis; | ||
• | Time allowed for forensic schedule analysis; | ||
• | Expertise of the forensic schedule analyst and resources available; | ||
• | Forum for resolution and audience; | ||
• | Legal or procedural requirements; and | ||
• | Custom and usage of methods on the project or the case. |
While all of these factors can be appropriate considerations, they are not always equally applicable to every delay claim.
Moreover, as evidenced by the AACE Recommended Practice 29R-03, there are many different and varied methods of schedule delay analysis, and these include some that the courts do not look on favorably or have rejected outright as unreliable. It is important that the method you choose for schedule delay analysis and the witness can stand up to a Frye 57 or Daubert 58 challenge. (It appears to this author at this time that the Virginia Supreme Court has left open whether a proffered expert and opinions should be subject to the Daubert standard employed by the federal courts.)
B. Relevant Contract Provisions. Under Virginia law, the parties' contract is the law of the case between the parties and must be enforced unless the contract is repugnant to public policy or law. 59 Courts in Virginia have enforced parties' agreements for liquidated damages in lieu of
[Page 629]
common law damages in the event of project delays. 60 The Virginia Supreme Court has also enforced a termination-without-cause contract provision as a bargained-for protection in the event that a court or jury finds a termination for cause to be unjustified. 61 In that case, the court observed that "[c]ontracting parties are certainly free to agree ahead of time upon the measure of damages that will apply in the event of a breach, and once a certain measure is agreed upon, it controls the extent of recovery." 62
Under such principles, it seems likely that a Virginia court would enforce any contract terms that specify a particular remedy for delay, or analysis technique for measuring delay, unless a legal excuse exists.
While there does not appear to be a published Virginia case on the issue of delay analysis, one federal appellate court has reversed a decision of a federal board of contract appeals when the board did not follow the contract's language specifying the method of schedule delay analysis. 63
C. Burden of Proof.
1. Causation. To be claimable, a delay must be the result of action or inaction by the other party, or the other party must have assumed the risk of delay. The party claiming delay bears the burden of proving causation, 64 and the standard of proof is "a reasonable degree of certainty." 65
Outside of Virginia, various courts have ruled on a delay claimant's burden of proof. For example, if a federal government contractor asserts a claim based on government-caused delay, "the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by government action, and that the delay harmed the contractor." 66
[Page 630]
2. Critical Path Delay. Another element in the proof of delay is showing that the delay was to activities on the "critical path." By definition, a delay to a critical path activity will affect the contract completion date. 67
In George Sollitt Construction Co. v. United States, 68 the Court of Federal Claims stated:
In order to prevail on its claims for the additional costs incurred because of the late completion of a fixed-price government construction contract, "the contractor must show that the government's actions affected activities on the critical path [footnote omitted] of the contractor's performance of the contract." . . . "'The reason that the determination of the critical path is crucial to the calculation of delay damages is that only construction work on the critical path had an impact upon the time in which the project was completed.'" . . . "One established way to document delay is through the use of Critical Path Method (CPM) schedules and an analysis of the effects, if any, of government-caused events upon the critical path of the project."
. . . .
A government delay which affects only those activities not on the critical path does not the [sic] delay the completion of the project. As the Claims Court stated in G.M. Shupe:
If work on the critical path was delayed, then the eventual completion date of the project was delayed. Delay involving work not on the critical path
[Page 631]
generally had no impact on the eventual completion date of the project. 69
3. Measurement Methods. As of mid-2019, the Virginia Supreme Court has not identified or accepted a particular method of schedule analysis for the measure of schedule delay. In TechDyn Systems Corp. v. Whittaker Corp., 70 the court referred to "critical delay" that TechDyn's expert attributed solely to Whittaker's performance and no other cause. The court continued:
[O]nce TechDyn met its prima facie burden of producing evidence to show within a reasonable degree of certainty the share of damages and delay for which Whittaker was responsible. . . . 71
In Blake Construction Co./Poole & Kent v. Upper Occoquan Sewage Authority, 72 the Virginia Supreme Court noted in its opinion that "[t]he contract also limits delay damages to delay that is part of the 'Critical Path.' No issue has been raised as to this provision and we express no opinion thereon." 73
In a Virginia circuit court case, W.M. Jordan Co. v. Sielaff, 74 the plaintiff contractor used a critical path method of schedule analysis to measure the delays caused by the Commonwealth's acts and omissions. The court wrote of the critical path method of schedule analysis:
The Court accepts the critical path method as a method to measure the impact of the alleged acts and omissions of the Commonwealth on the building sequence and schedule. 75
[Page 632]
Courts outside of Virginia have looked to critical path method schedule analysis as the preferred method to measure delay. 76 For example, in Southern Comfort Builders, Inc. v. United States, 77 the Court of Federal Claims wrote:
In a classic delay claim, one established way to document delay damages is through the use of Critical Path Method (CPM) schedules, combined with an analysis of the effects of government caused events upon the critical path of the project. In establishing the causal link between the government's alleged wrongful acts and the delay, "the contractor must show that the government's actions affected activities on the critical path of the contractor's performance of the contract."
. . . .
A general statement that disruption or impact occurred, absent any showing through use of updated CPM schedules, logs or credible and specific data or testimony, will not suffice to meet that burden. 78
In United States ex rel. CMC Steel Fabricators v. Harrop Construction Co., 79 the federal district court stated, in regard to the critical path method of claims delay analysis, "[t]his method of analysis is the formal approach by courts and experts alike in determining the cause and extent of construction delays." 80
Generally, the courts and boards of contract appeals are not receptive to a schedule analysis based on bar charts. 81
[Page 633]
15.402 Industry Methods to Measure Time Delay.
A. In General. Over the years, courts and boards of contract appeals have been asked to consider many different methods of analysis to measure schedule delay on a construction project. In 2007, the AACE 82 International issued its Recommended Practice No. 29R-03: Forensic Schedule Analysis with the stated purpose of providing a unifying technical reference for the forensic application of the critical path method of scheduling. The fact that the AACE produced this Recommended Practice is an acknowledgment that many different methods of schedule analysis exist. Some of these methods the courts and boards currently favor, and some they do not. The current AACE Recommended Practice No. 29R-03 was revised in April 2011.
As earlier mentioned, Virginia courts have yet to express in a published opinion an acceptance or rejection of any particular method to measure schedule delay. Consequently, the discussion on measuring delays will center on federal court rulings and federal board of contract appeals decisions.
A further point of observation is that, over the years, industry methods for measuring delay have come to fall into three general categories: as-planned methods, as-built methods, and contemporaneous methods. These measures are discussed below.
B. As-Planned Methods of Measure. The two primary as-planned methods of measure are the "Impacted As-Planned Method" and the "What-If Method." Although both methods were favored in the past, they have fallen from favor in recent years.
The Impacted As-Planned Method and What-If Method are based on the claimant's as-planned schedule (typically the approved or accepted as-planned schedule). The schedule analyst adds delays claimed and time extensions granted to the as-planned critical path activities affected by the delays charged to the defendant and any granted time extensions. The schedule is recalculated after incorporating the delays.
The What-If Method compares the original as-planned end date to the recalculated end date based on the defendant's delays and time
[Page 634]
extensions, and the difference is the "measure" of delay attributed to the defendant. The Impacted As-Planned Method is more sequential, calculating each delay's impact to the as-planned...
To continue reading
Request your trial