ConstructionPro Week, Volume: Construction Advisor Today - Issue: 91 - 01/21/2011

Can Compensable Delay Be Established Without Critical Path Analysis?

A critical path method schedule has long been a fundamental tool not only for scheduling and managing work, but also for supporting claims for delay damages. An analysis of these schedules can isolate activity delay which affected overall project completion. Once such a delay has been identified, the cause of the delay can be established. But is critical path analysis always a prerequisite to recovery of delay damages? A federal appeals court recently answered in the negative.

 

A contractor had supported its delay claim with expert testimony from a scheduling witness. The expert presented a baseline, as-planned schedule he had prepared. It did not distinguish critical path activities from activities not on the critical path. The expert testified that in his experience on similar projects, nearly all activities were on or near the critical path. The “float” in the contractor’s schedule was negligible. A federal district court judge admitted this testimony and the contractor prevailed in its delay claim.

 

The project owner argued on appeal that the scheduling evidence should not have been admitted because it was inherently unreliable. Without a critical path for construction activities, it was impossible to verify the accuracy of the expert’s delay conclusions. The U.S. Court of Appeals for the Eighth Circuit disagreed. The failure to establish a critical path did not render the evidence inadmissible. The lack of a critical path related only to the weight or persuasiveness of the evidence. The expert’s conclusion was subject to cross-examination and to criticism at closing argument. But it could be considered.

What do you think? Admissibility in a court of law aside, do you think best practice allows evaluation of delay claims without the use of critical path analysis? Does the answer depend on the nature of the particular project? I welcome your comments.

 

Featured in Next Week’s Construction Claims Advisor:

  • Contract Retainage Used to Secure Separate Obligation
  • Past Performance Questionnaire Must Be Submitted Directly by Reference
  • Contractor May Have Waived Right to Delay Damages

 

Bruce Jervis, Editor
Construction Claims Advisor

 

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