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:
- 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.
- 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.
- 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.
- 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.