By Ryan D. DeMotte, K&L Gates, Pittsburgh
For construction attorneys looking for guidance in navigating the often confusing world of forensic schedule analysis ("FSA"), Patrick Kelly’s and William Franczek’s article in the Fall 2013 edition of The Construction Lawyer, "Clearing the Smoke: Forensic Schedule Analysis Method Selection for Construction Attorneys" provides a useful overview. The article describes the controversies over the legitimacy of FSA, and then evaluates the pros and cons of the various FSA methods and discusses the factors that analysts and attorneys should consider in selecting an FSA method for a particular case.
The authors point out that FSA methods go by a number of different names, and they helpfully provide a four-family classification of the main methods: (1) as-planned vs. as-built, (2) contemporaneous period analysis, (3) retrospective time impact analysis, and (4) collapsed as-built.
As-Planned vs. As-Built: As the name suggests, this method compares the baseline schedule to the actual as-built schedule using the same planned network logic. Analysts may take into account the contemporaneous understanding of criticality in developing the critical path, but it is not necessary to the analysis. The authors caution that the method must use analytical techniques to apportion responsibility for the delays between the parties to avoid becoming a "total time" claim.
Contemporaneous Period Analysis: This family of methods uses project update schedules to reconstruct the critical path and track critical path changes through the project. This method breaks the project down into a series of periods or "windows" and analyzes the critical path in each window. The size of the window varies by project; they can be either a set time period (i.e. monthly) or defined by project events. By analyzing each window, this method tracks the gains and losses to the project completion date through time. The virtue of this method is that it considers the contemporaneous views of the project team through the use of project update schedules.
Retrospective Time Impact Analysis: This is one of the most common methods for evaluating the time impact of project changes. As used by the project scheduler, this is a prospective method that takes the un-impacted schedule and compares it to a second "impacted" schedule that includes the changed activities and logic. In this way, the project team can estimate the likely impact of certain events to support a request for a time extension. According to the authors, although this method is widely accepted for prospective change management, the use of a TIA retrospectively by a schedule analyst is more controversial. A retrospective TIA basically re-creates the impacted schedule after the fact. As the authors point out, this can lead to manipulation and selective modeling of only the other party’s delays. This method also does not consider contemporaneous views of criticality.
Collapsed As-Built: This method starts with the as-built critical path, using the actual logic and durations from the project. The analyst than proceeds to eliminate selected delay activities and recalculate the schedule as if the delay event had not taken place. Unlike the As-Planned vs. As-Built method, this method does not refer back to the planned schedule, and so avoids the trap of becoming a "total time" claim. Another advantage of this method that the authors point out is that it naturally considers both parties’ delays since delay events not specifically removed remain in the analysis for comparison. This method does not consider contemporaneous views of criticality.
The authors emphasize that there is no one method that is always better than another method. The appropriate method depends on a number of project-specific factors. The selection of the FSA method is within the professional judgment of the analyst, guided by technical references such as AACE’s "Recommended Practice on Forensic Schedule Analysis" or RP 29R-03.
The authors discuss several basic legal and technical factors that should guide the selection of a method.
Contract Requirements: The first step is to see if the contract specifies a particular FSA method. Contract requirements will define the options available to the analyst.
Case Law: Attorneys and analysts should also be familiar with any case law addressing FSA methods in the relevant jurisdictions, especially in situations where the admissibility of expert evidence may be subject to a Daubert challenge.
Quality of Schedule Data: The authors emphasize that the most important technical factor in FSA method selection is the quality of the schedules and project records. For example, without reliable and regular project updates, a contemporary period analysis becomes much more difficult.
Complexity of the Project: Finally, analysts should consider what level of analysis is necessary for a particular project. For straightforward projects with few delay events, a less-involved (and less expensive) method may be sufficient. For more complex projects, more sophisticated methods will likely be required.
The delay analysis is a key part of most construction disputes. Selecting the right FSA method (and analyst) at the start will go a long way to ensuring a quality and persuasive analysis that will best serve your client’s interests. Reading Kelly’s and Franczek’s article will help attorneys make sense of FSA method selection.