The Future Of Forensic Schedule Delay Analysis

INTRODUCTION 

It is safe to assume that contractors have been asserting delay claims or their effective equivalents on projects since before recorded history commenced. While we have no record of delay claims  on the Pyramids, I am sure that King Djoser’s architect Imhotep, hoped the funerary pyramid he  designed would be completed prior to, or at least near to the time of death of the king in 2670 BCE, even though it took dozens of years to complete. 

Similarly, we do know that in medieval times the popes who built the Duomo in Florence and St. Peters Basilica in Rome complained to their master-builders Brunelleschi and Michelangelo about the very long time and the cost overruns these projects took to reach completion. Much more recently, Courts in Malaysia have reported delay claims very commonly for more than 2 years, with the proof of delay based on variations of the As-Planned vs As-Built methodology. 

Since the mid-20th century and the advent of Critical Path Method (CPM) scheduling, that  invention has not only revolutionized both the planning and execution of construction projects,  but also the claims for delays asserted by contractors. These claims are different than their  predecessors only in the potential for “scientific” proof of delay. CPM schedules came into existence in the late 1950s with the development of the UNIVAC computer and the work of J. 

Mauchly and J. Kelley on behalf of DuPont. 

Those initial trials of activity-on-arrow schedule systems proved almost immediately that CPM schedule development could save considerable time. Shortly thereafter, theNavy’s Polaris Program  developed PERT (activity-on-node) such that by the end of the 1960s, CPM scheduling

fundamentals were essentially in place, albeitworking on computerswe would consider unbearably  slowtoday. 

This article will set forth my thoughts on how forensic schedule delay analysis will be done in the future  and what is actually needed in a forensic schedule delay analysis report for use in a court proceeding.  

CONFUSION ABOUT DELAY ANALYSIS 

Different techniques may provide different results when applied to the same set of circumstances 

Delays are a common cause of difficult-to-resolve disputes in the construction industry. Over the  past decades, scheduling experts and lawyers have developed many delay-analysis methods, and  they continue to refine them while new ones are devised. One big problem is that names for  different techniques have been and continue to be applied loosely and inconsistently. 

When we look to court decisions to answer this question, we find no consensus. There are good  reasons for this. No single method or application of a given method can be applied in every  situation. There are practical realities and circumstances that may render certain methods and  applications inaccurate, infeasible or inappropriate. The method and application must be  appropriate to a dispute’s situation and circumstances. 

In the past two decades, several organizations have sought to provide clarity and structure to the  specialized discipline of delay analysis. In 2002, the Society of Construction Law published a  Delay and Disruption Protocol; in 2007, the AACEI published a Recommended Practice of  forensic delay; and in 2017, the ASCE published a Schedule Delay Analysis standard. 

The titles of the documents contain the words “standard,” “protocol” or “recommended  practice.” Does this mean the contents represent official procedures established by general  consent and that a departure from the contents automatically represents a failure to comply with  a standard of care? 

The answer is no. These documents were created to be used as a reference based on a specific  application, but they are often misunderstood or misrepresented as definitive and prescriptive  standards for all circumstances. This is particularly so in the legal community and the contentious  environment of a dispute resolution. A contributing reason for the potential misunderstanding or  misrepresentation must be the titles of the documents themselves. Words such as “standard,”  “protocol” or “recommended practice” imply definitive procedures and processes when in fact  that is not the case. 

“Ultimately, the question as to which method of delay analysis is best and what is the correct way to apply that  method must always be considered in light of the circumstances of the case in question. There is no universal fit for  delay analysis.” 

There have been and will continue to be dissenting views and challenges to the contents of each  of these documents. There are some inconsistencies among the documents themselves. There are 

times when the contents are appropriate for the matter at hand and other times when they are  not applicable. In hindsight, alternative titles such as “guidelines” or “principles” may have been  more appropriate for these documents. 

We must be careful not to make perfect the enemy of the good. These commendable documents  offer useful guidance. Each of these peer-reviewed documents is honest and clear about its  purpose. Each contains a caveat that acknowledges it cannot be definitive and prescriptive in  every situation. Each is clear that facts and circumstances may require departing from the  guidance or recommendations. 

The responsibility for these documents is now more with the readers than it is with the authors.  It is the reader who is responsible for how the document is applied. It is the reader who must  understand that the documents are necessarily generic. It is the reader who must consider that  circumstances may require a modification to some principles or processes. 

Ultimately, the question as to which method of delay analysis is best and what is the correct way  to apply that method must always be considered in light of the circumstances of the case in  question. There is no universal fit for delay analysis, and the process will always involve  professional judgment, experience, opinion and subjectivity. 

GET THE DELAY ANALYSIS THAT YOU WANT 

In so far as there can be trends among construction lawyers, it is, “trendy” to question  whether delay is an area of “expertise”. Whether or not you use the evocative term “expert” or  stick to my preferred, “analyst”, it is interesting to explore why the area of delay evidence is  contentious and engenders so much frustration for those involved in construction disputes.  

My view is that this due to a mismatch of expectations in what is being offered. 

Shrouded in mystery? 

There is a mystery to delay analysis by virtue of the complex scheduling software, the endless  programmes and diagrams, and some industry jargon. Lawyers, blinded by the mystique and  typically shy of anything diagrammatic, may fall into the trap of sending delay analysts away with  boxes of documents and no further instructions. They may hope that the analysts will magically  generate an answer to inform a case theory, only to be frustrated when the end product does not  match their expectations. 

What does the tribunal require? 

Courts and tribunals are often faced with the situation where competing delay analysts, proffered  as independent experts, come to the same set of objective facts and generate entirely different  answers based on different theoretical frameworks, methodologies and critical paths. Recently,  some courts and tribunals, apparently becoming increasingly sceptical of highly theoretical  approaches to delay, have preferred to undertake their own examination of the facts. This is 

hugely frustrating for the delay analysts, lawyers and particularly clients who have spent large  amounts of time and money to produce delay evidence only to have it disregarded. In Walter Lilly & Company Ltd v Giles Patrick Cyril Mackay and another, Akenhead J carried out his  own analysis and assessment of what actually caused the overall delays in a project. He said: 

“In so doing, I will proceed on a month-by-month assessment because both experts accept that this would be  relevant and helpful. As a tribunal, let alone a delay expert, one has to get a handle on what was delaying the  project as it went along.” 

He had previously commented that “[t]he debates about the ‘prospective’ or ‘retrospective’  approach to delay analysis was also sterile because both delay analysts accepted that, if each  approach was done correctly, they should produce the same result”. He was also critical of the  subjective approach taken by one of the delay analysts, noting that it is not for the expert to make  statements as to whether he believes the other side has demonstrated this or that, or made out its  case; that is for the tribunal to assess. 

Better communication 

It seems to me that better communication is needed to demystify the process and ensure that all  participants work towards a solution that can be sensibly used to assist dispute resolution. Delay  analysis can add considerable value in this regard, but perhaps a few ground rules are needed: 

1. Separate matters of law from matters for delay expertise. Take questions such as: 

• whether to use a retrospective or prospective analysis: 

• when an extension of time should be calculated; 

• what constitutes a concurrent delay; and 

• whether extensions of time should take into account what subsequently  occurred on a project. 

These are legal questions. They should be a matter of interpretation of the agreement  between the parties and form part of the legal submissions. While delay experts can  offer a sensible view based on their experience of particular contracts, these questions  should be considered and discussed with the legal team from the outset, before any  delay analysis is carried out. 

2. Decide who is best placed to navigate the factual matrix of the dispute. 

Construction disputes are highly fact intensive and must be properly investigated and  understood. Huge costs are incurred by delay experts carrying out their own detailed  factual investigations in parallel with the lawyers. If they have not had the benefit of  contact with the factual witnesses or technical experts their understanding of the facts  may be incomplete or incorrect.

While both lawyers and delay analysts are capable of undertaking the investigation,  duplication should be avoided and, to this end, communication is key. Regardless of  who is the principal investigator of fact, the delay analyst must work with the factual  witnesses to test the programme logic links and durations, so that their analysis is  robust under cross examination. 

3. Understand the software and its output. 

Both lawyers and delay analysts need to understand how software will be used and  the answers it generates. Regardless of who determines the facts, expertise is needed  to: 

• use scheduling software as a tool to present the impact of the delays and the  interaction between multiple causes of delay; 

• understand how to use the software differently for a forensic analysis as  opposed to project management; and 

• understand how any assumptions are input into the programming software and  to challenge the data produced. 

However, such expertise needs to be in the hands of both the lawyer and the delay  analyst to ensure data is used correctly. There should not be any mystery in answers  produced by the software that are not supported by a common sense understanding  of the project. 

4. Explain things in plain English. 

Delay reports need to clearly identify and explain relevant terminology, the  methodology used, any assumptions in the analysis and discuss (in narrative form) what  the programmes are demonstrating in terms of impact of particular delays. Lawyers  and delay analysts must work together to make sure any report does this. 

Delay analysis is a valuable tool in the dispute resolution process, but it needs to be managed with  collaboration and understanding so that courts and tribunals are provided with something that  assists them in navigating the facts in order to resolve the dispute. 

As a delay analyst, I first and foremost always seek to do two things.  

1) Base my assessment on factual contemporaneous records and not opinion of either myself or  others (contradictory witness statements are of limited use),  

2) That the report is to be written such that any willing educated person would understand  everything I have done, concluded and why. 

Lastly, diagrams can articulate concepts of causation extremely well and do it quickly. There is  however a key to how they are prepared, presented and narrated. Admittedly, delay analysts love  the bad habit of frequently punctuating their reports with P6 screen shots – ‘Bad’. 

FUTURE TRENDS IN FORENSIC SCHEDULE DELAY ANALYSIS The improvements in schedule delay analysis are associated with three trends.  

First, court decisions about construction issues, particularly those arcane issues associated with  CPM and delay law, are becoming rare. The increased cost of litigation and the corresponding  rise of cheaper alternative-dispute resolution options mean that fewer court cases address the  legal questions associated with schedule delays. 

While the important court cases decided in the late 20th century do occasionally get updated, the  trend for resolving disputes is toward more arbitration and mediation. These forums have no  public recording of the reasons behind a decision, thereby failing to create precedents as a basis  to resolve future disputes. 

While some cynics in the construction industry may welcome fewer court decisions, the absence  of definitive legal explanations hinders management, administration and resolution techniques  for projects. 

Secondly, since 2005, a steady development of cogent methodologies and guidance, explanation  of underlying considerations and training techniques has helped to systematize forensic schedule  delay analysis. AACE International published the “Recommended Practice on Forensic Delay  Analysis (RP29R-03),” the Society of Construction Law on the delay protocol, the American Bar  Association Construction Forum plans to publish its first book on the subject, thus adding to the  ongoing guidance documents coming into play through the various professional authorities. . 

Thirdly, technology is clearly improving the manner in ways delay analysis is done. An example  can be clearly explained as we move from CPM graphics of Gannt charts to a 2-D graph showing  time on the vertical axis, and location on the horizontal axis, (i.e. a steeper line reflects a slower  activity) and now with the advent of BIM using 3D modelling techniques for clearer interpretation  of the delays caused.

CONCLUSION 

The result of these three trends—less law, more guidance and higher technology —has not fully  stanched the tide of poorly conceived voodoo analysis. But there is hope. More arbitrations and  mediations led by construction lawyers and construction experts, coupled with a better  understanding of delay analysis methodologies by construction professionals, generally means a  continuation of the long-term trend toward better analysis and fairer resolution of disputes.  

End of the day it needs to be clearly understood that forensic schedule delay analysis is not rocket science but a  skill in clear interpretation of construction sequences and the ability to display that in a written, clear and concise  manner. 

Some thoughts on moving forward would be that the Malaysian bar together with the Built  Environment Association comes up with their guidance notes that can incorporate some of the  best practices from the other professional agencies internationally to produce a Malaysian delay  protocol guidance notes which covers both the Malaysian law as well as the best practices and  technology advancement in the construction sector.  

Shaun Kumar is the Principal of 2C Consulting, a construction claims consultancy.