§14.5 Forensic Schedule|Delay Analysis

• Jurisdiction: Washington

§14.5 FORENSIC SCHEDULE/DELAY ANALYSIS

In today's complex construction projects, most contractors have access to the modern scheduling software needed to produce accurate construction schedules. This software enables the contractor to successfully plan and track project progress and measure, forecast, and mitigate delays.

The problem that follows the standard use of modern scheduling software is that many contracts fail to address the use of the scheduling software and what practices are unacceptable. Unscrupulous contractors may use scheduling practices that deflect blame for a project delay from activities within their control. In response, owners have had to increase their skills, knowledge, and apprehension of scheduling practices to understand scheduling, schedule analysis, and techniques used in the proof of delay.

When projects are faced with delay disputes, contractors and owners often engage forensic schedule analysts to review the cause of the delays on the project. Often times these scheduling experts are retained as

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consultants but may later be designated as testifying experts. This section deals with forensic, or after-the-fact, analysis methodologies.

(1) Choosing a methodology

The most common delay analysis techniques used on today's construction delay claims by forensic schedulers are set forth below. There is no single methodology that serves as the standard, but the underpinning of each method is CPM scheduling. Each of them can be further broken down and individualized based on the information available, specific techniques applied, and the circumstances of the project and the schedule. The further refinement of these common techniques are beyond the scope of this chapter. The basic types, in no particular order, are

(1) As-Planned versus As-Built Analysis

(2) Impacted As-Planned Analysis

(3) Collapsed As-Built Analysis

(4) Windows Analysis/Contemporaneous Period Analysis

The forensic scheduling consultant typically is the one who determines what type of analysis to use, after reviewing the contract, the project schedule information, and available documentation. Attorneys retaining a delay analyst or expert should understand the contract requirements and be prepared to ask the expert if the methodology being used will satisfy the contract requirements. Moreover, perhaps the first issue an attorney should consider in selecting an expert and methodology is the likelihood the analysis will survive judicial scrutiny and be admitted at trial. See Anderson v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 603, 260 P.3d 857 (2011) (noting that Washington courts consider "(1) whether the underlying theory is generally accepted in the scientific community and (2) whether there are techniques, experiments, or studies utilizing that theory which are capable of producing reliable results and are generally accepted in the scientific community," (citations omitted)); see also ER 702. In Washington, the likely result is that any of the above methods is likely to be admitted into testimony, with any criticisms of the methodology or how the methodology has been implemented by the expert going to the weight of the testimony.

Below are some issues that are generally considered in determining what methodology is used:

(1) the contract's scheduling requirements;

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(2)	whether an as-planned, or initial plan based on the contract drawings, schedule exists, and whether it accurately reflects a reasonable plan to complete the work;
(3)	the contractor's baseline schedule;
(4)	the extent, accuracy, and reliability of the schedule updates during the project;
(5)	the extent of the owner's participation in the schedule update process;
(6)	whether schedule updates reflect the actual progress (logic and actual start/finish) of the work; and
(7)	whether an as-built schedule exists and, if not, the availability of project records to construct an as-built schedule.

(2) Basic methodologies

The various basic methodologies for forensic schedule analysis are discussed below.

(a) As-planned versus as-built analysis

As-planned versus as-built analysis is generally performed when there is an initial plan and accurate as-built information, but incomplete or nonexistent contemporaneous updates. It is important that the following can be determined from the record and project information:

• accurate as-built start and finish dates

• accurate as-built relationships

This method is used to compare an initial plan or baseline schedule to the time frames as performed for the actual work and provide an activity comparison to determine when delays occurred and quantify their impact. An advantage of this method is that it is based upon the actual start and completion dates of the various activities on the project and can be...