Success in winning delay claims begins with a few basic rules. In addition to giving notice in accordance with the contract specs and maintaining proper documentation, there are generally accepted practices commonly used to demonstrate causation and quantity the duration of project delays. According to Scott Lowe, principal of Trauner Consulting Services Inc., the use of reliable contemporaneous schedules when available provides the best chance of success, so basic rule number one is for contractors to submit timely monthly updates and follow through on having them reviewed and approved by the owner.
Lowe points out that as-planned schedules are a dynamic planning tool and subject to work sequence changes as the job progresses. The critical path may shift from one part of a building to another, and delays should be looked at in context of what was actually happing on the job at the time of the delay. The basic rule here is to evaluate delays based on the status of the project at the time the delays occur, according to Lowe. “In other words, look at the schedule in place at the time the delays occur. Use the contemporaneous schedule. And finally, it’s really only delays to the critical path that can delay the project completion date, so your focus, when you’re doing this kind of analysis, is on those critical delays.”
Another basic rule is to avoid trying to manipulate schedules after the fact in anticipation of supporting one delay theory or another. The best support for proof of a delay will lie in the as-built data, whether it is within the schedule or within the various project documents, such as daily reports, time cards, superintendent diaries or other records maintained on the project. By combining the knowledge of what happened at the time of a delay with what the schedule(s) in use at the time show, the more likely a contractor will be able to successfully support a delay claim. This is crucial for a retrospective analysis, that is, analyzing delays that have occurred in the past. Prospective analysis, that is, forecasting the impact of a current or future action that may result in a project delay, will also more likely succeed with schedules that are up-to-date and actively used on the project. Typically, the insertion of a fragnet into a computerized CPM schedule and understanding the impact on the schedule is the starting point to determine possible future delays.
Because of the fast-pace nature of most construction projects, and the efforts needed to update and submit schedules for approval, the ideal scenario of having usable contemporaneous schedules for the purpose of supporting a delay claim is not often encountered. This increases the importance of keeping good records, and in some cases, developing specific documentation practices to track actual or potential delays. This might include creation of job cost accounts and/or time card codes to capture information on work efforts impacted by a delay.
It is easy to observe and record work activity that is occurring in the field, including work that is impacted by a delay. Not so obvious is recognizing where work is not being performed. Project staff should similarly make notes on their daily reports of areas that, but for delay or project impacts, are not being worked on. It is not infrequent that a foreman or superintendent will leave time cards blank when no work is done. If bad weather has stopped work, it should be noted what time the work was stopped and what trades showed up and were unable to work, for example, rather than just noting the fact that it rained and no work was performed. Specificity pays.
Both prospective and retrospective analyses have their challenges, particularly dependent upon the quality and status of the CPM schedules in use. In an upcoming live webinar on Tuesday, November 15th, Mr. Lowe will review the points, as well as discuss different types of delay analysis methods, including a review of legal cases supporting contemporaneous schedule analysis and how to resolve delay claims without the need for litigation. Click here to learn more.
