PRESENTING A “TOTAL TIME” DELAY CLAIM IS NOT SUFFICIENT

Posted on August 13, 2022August 13, 2022 by Edward Garber

When presenting a delay-type of claim on a construction project, a claimant MUST be in a position to properly PROVE the claim. Trying to present a delay claim loosey-goosey is not a recipe for success. In fact, it can be a recipe for an easy loss. This is not what you want. To combat this, make sure you engage a delay expert that understands delay methodologies and how to calculate delay and do NOT present a total time claim. Presenting a delay claim using a total time approach, discussed below, makes it too easy to attack the flaws and credibility of the approach. Per the discussion of the case below, a total time claim with a contractor that used its project manager, versus a delay expert, to support its claim turned the contractor’s claim into a loss.

In French Construction, LLC v. Department of Veteran Affairs, 2022 WL 3134507, CBCA 6490 (CBCA 2022), a contractor submitted a delay claim to the government for almost $400,000. The contractor was hired to construct a two-story corridor to connect hospital buildings. The contractor was required to be complete within 365 days. It was not. The contractor was seeking 419 days of delay from the government. The contractor’s “delay expert” was its project manager who compared the contractor’s as-planned schedule to an as-built schedule he prepared for the claim.

“To show how the critical path of contract performance evolved over the life of the contract and how excusable delays impacted that path, a contractor, at a minimum, needs a reasonable ‘as planned’ schedule and an ‘as built’ schedule, which it can incorporate into an analysis to show ‘the interdependence of any one or more of the work items with any other work items’ as the project progressed.” French Construction, supra (quotation and citation omitted).

Unfortunately, because the project manager was not a true delay expert, there were material flaws in his methodology from a critical path causation standpoint and a calculation of delay standpoint. Basically, which is a big no-no, the project manager did a total time claim by simply taking the delta between as-planned and actual completion dates and focusing on durations while skipping the causation.

Under the ‘total time theory,” the contractor simply takes the original and extended completion dates, computes therefrom the intervening time or overrun, points to a host of individual delay incidents for which defendant was allegedly responsible and which ‘contributed’ to the overall extended time, and then leaps to the conclusion that the entire overrun time was attributable to defendant. The [total time] theory of proving delay is insufficient to meet the contractor’s burden to prove that government-caused delay actually delayed the overall completion of the project. [The contractor’s project manager] testified about the drawing delays and other problems that delayed demolition of the building without providing a sufficient showing that all the days of delay were attributable to this cause….

The remainder of [the contractor’s] delay claim suffers from the same problem. [The project manager] simply subcontracted the planned duration from the actual duration and identified that as the period of delay. [The project manager], in his report, then generally describes challenges or issues that [the contractor] faced during periods…without any specifics, to those issues. [The project manager’s] opinions regarding the causes of delay amount to ‘broad generalities and inferences” that are insufficient to carry [the contractor’s] burden to prove compensable delay.

French Construction, supra (internal quotations and citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

A RETROSPECTIVE AS-BUILT SCHEDULE ANALYSIS CAN BE USED TO SUPPORT DELAY

Posted on May 8, 2022May 8, 2022 by Edward Garber

Delay claims are part of construction. There should be no surprise why. Time is money. A delay claim should be accompanied by expert opinions that bolster evidence that gets introduced. The party against whom the delay claim is made will also have an expert – a rebuttal expert. Not surprisingly, each of the experts will rely on a different critical path as to relates to the same project. The party claiming delay will rely on a critical path that shows the actions of the other party impacted their critical path and proximately caused the delay. This will be refuted by the opposing expert that will challenge the critical path and the actions claimed had no impact on the critical path (i.e., did not proximately cause the delay). Quintessential finger pointing!

This was the situation in CTA I, LLC v. Department of Veteran Affairs, CBCA 5826, 2022 WL 884710 (CBCA 2022), where the government terminated the contractor for convenience and the contractor claimed equitable adjustments for, among other things, delay. The contractor’s expert relied on an as-built critical path analysis by “retrospectively creating updates to insert between the contemporaneous updates.” Id., supra, n.3. The government’s expert did not do a retrospective as-built analysis and relied on only contemporaneous schedule updates. Id.

The government’s expert testified he was not a fan of a retrospective (after-the-fact) as-built analysis because this analysis can lead to manipulation. He testified that he prefers to rely on contemporaneous schedule updates versus an as-built analysis where activities are added. The contractor’s expert countered by saying the government’s expert wants to ignore as-built facts which would warrant adjustments to contemporaneous project schedules to account for what actually occurred in the field.

Who is right? Is a retrospective (after-the-fact) as built analysis credible? YES, it is. But, in an answering this question, let’s bullet point some key aspects as articulated by the Civilian Board of Contract Appeals, which need to be underscored for importance:

 The contractor “has burden of proving the extent of the delay, that the delay was proximately caused by government [owner] action, and the delay harmed” the contractor. CTA I, supra (citation omitted).

 “Only delay on a project’s critical path results in overall delay.” Id.

 “As as-built critical path that reconstructs schedule updates is an acceptable methodology” “[A] rigorous ‘as-built’ approach- reviewing contemporaneous evidence in hindsight to trace the activities on the actual, longest path to completion-has been endorsed by government contracts tribunals.” Id.

 “Because we must determine why a project lasted as long as it did, we [the Board] want to know the path to the latest work – including the critical work immediately preceding that work, and just before that, and so on.” Id.

 “We reject [the government’s] accusation that retrospectively adjusting as-built schedules based on project documentation or other evidence necessarily turns the schedules into ‘fiction.’ There is, to be sure, a heavy presumption that regularly updated, contemporaneous schedules are the best evidence of project progress.” Id.

 “[F]orensic schedule analysis is ‘both a science and an art’ and ‘not a magic wand’ but a set of techniques requiring ‘the application of an expert’s well-considered judgment in evaluating the logic of underlying the various pieces of information that support the analysis.’” Id.

 Even if relying on an as-built analysis, there needs to be persuasive contemporaneous project documents – “[e]xpert opinions offered on certain matters that…are not supported by the record tend[] to cast a shadow on the value of other opinions concerning issues where the underlying factual matters were less clear.” Id. (citation omitted) (discussing aspects of contractor’s experts opinion that relied on an unknown extent of hindsight with interviews of the contractor’s project team which the government and the Board were not privy, and where there was not persuasive contemporaneous evidence).

CONSTRUCTION DELAYS: WHICH METHOD SHOULD BE USED TO CALCULATE DELAY?

Posted on July 4, 2021July 4, 2021 by Edward Garber

If you need to prove and allocate construction project delays, you should engage a scheduling consultant qualified with CPM (critical path method) analysis. You should also engage counsel to assist in preserving your rights, as well as presenting and maximing your arguments for delay.

There are numerous methodologies used to quantify and allocate delay. You want to discuss the most effective analysis for your case and facts including whether you want/should use a forward-looking prospective analysis or a backward-looking retrospective analysis that factors in as-built data. In doing so, you want to make sure you understand the pros and cons of each methodology including the bases to attack the methodology that will be subject to cross-examination. The five primary CPM methodologies are as follows:

As-Planned Versus As-Built. This methodology compares the as-planned baseline schedule to an as-built schedule reflecting progress to assign delay. An as-built schedule that reflects progress includes actual start dates, finish dates, and durations. The actual dates and durations are compared with the as-planned dates and durations on the baseline schedule to determine delay. Under this methodology, the delay impact is determined retrospectively.

Windows Analysis. This methodology divides the project into windows of period of time and focuses on an as-built critical path analysis that relies on progress schedule updates and as-built data. The as-built critical path is then quantified for each of the periods (or windows). The methodology compares the as-planned baseline schedule’s critical path to the as-built schedule (and as-built conditions) during the window to quantify delay. Under this methodology, the delay impact is determined retrospectively.

Collapsed As-Built. This methodology is the “but for” methodology as it analyzes the earliest date the project would have been completed “but for” identified delays. This methodology removes delay events from the as-built schedule to determine when the project would have been completed “but for” the delay event(s). Under this methodology, the delay impact is determined retrospectively.

Impacted As-Planned. This methodology inserts potential delay events/activities into the as-planned baseline schedule to determine impacts. By inputting new delay activities into the baseline as-planned schedule, new logic and a new critical path is created to result in a new completion date (i.e., an impacted, as-planned schedule). The difference between the completion date in the impacted, as-planned schedule and the (unimpacted) as-planned baseline schedule represents the delay. This methodology does not rely on as-built data and prospectively determines delay.

Time Impact Analysis. This methodology analyzes delay events individually based on the schedule update immediately prior to the delay event. The difference between the project’s completion date before and after the delay event quantifies the delay. Under this methodology, the delay event is added into the updated schedule closest to the event to see if the project completion date changes based on the event’s impact to the completion date. This methodology does not rely on as-built data and prospectively determines delay based on when the event occurred.

It is not uncommon for parties to use different methodologies to quantify and assign delay. It is also not uncommon for the parties to attack the other methodology as unreliable– whether not focusing on what actually occurred or not focusing on an event the moment it occurred based on the schedule or plan in-place as of the delaying event(s). As an example only, in K-Con Building Systems, Inc. v. U.S., 131 Fed.Cl. 275 (Fed.Cl. 2017), a contractor asserted claims relative to the government’s delay. The contractor claimed the critical path should be analyzed with a prospective analysis predicated on its as-planned performance. The government disagreed claiming the critical path should be analyzed based on a retrospective as-built analysis. The Court of Federal Claims agreed with the government “that the proper way to determine what activities were on the critical path of performance in this case is to examine what actually occurred during contract performance.” K-Con Building Systems, supra, at 329. The Court reached this conclusion because: (1) “a critical path schedule that relies solely on the [baseline] schedule set forth in the contract specifications does not account for subsequent changes to the schedule authorized by the contracting agency” and (2) “the use of a contractually based critical path schedule does not reflect that the [contractor] did not actually perform in accordance with the [baseline] schedule set forth in the contract specifications.” Id. at 329-330. Stated differently, the as-planned approach that the contractor employed did not “fully reflect the reality of what occurred on the project.” Id.