Matthew DeVries | Best Practices Construction Law | October 13, 2016
This past week, I came home to a complete mess in our backyard—it was littered with debris, trash, plates and utensils, and overturn patio furniture. My instruction to the kids yesterday morning was stern: “Clean up this mess by the time I get home…or else!”
One kid fixed the furniture in 15 minutes. One kid picked up the plates, bowls and utensils in 30 minutes. And one kid wasted six hours with an empty trash bag wandering, playing, napping, etc. The trash is still there because of the significant delays on the job. My son had every excuse, but I was not buying any of them.
It almost goes without saying that if you have to pursue or defend a delay claim, you are going to need some evidence (whether by expert or otherwise) to establish or to challenge entitlement to the damages sought. And we all know that there can be different routes to the same goal. However, the different methods of schedule analysis can lead to varying results. So, which method is correct?
According to a great Construction Law International article by my friends Don and Rob, there are eight guidelines that any schedule delay analysis comply with, including:
- Compare the planned work before and after each delay. Practically, this means that you should compare the plan to perform the remaining work before each delay and the plan to perform the remaining work after that delay, which will require a review of the schedule updates during the project. This will also involve looking at the estimated impact, as well as the actual impact, of the delay.
- Identify the critical delays. Generally, the delay must affect the critical path of the work to be compensable. If the delay absorbs the “float” in the schedule, then it is not compensable. According to the authors, “If an activity does not have any float, by definition it is critical as it would impact the required contract completion date.”
- Evaluate the delays in both a chronological order and a cumulative manner.If you do not look at the delays in sequence, it can “mask” what actually occurred on the project.
- Adjust the completion date to reflect excusable delay as it occurs. This will assist in finding the actual float values and determining which activities are actually critical at any point during the project timeline.
- Include accurate as-built information. Again, it is important analyze the actual progress of construction, which can best be achieved through accurate as-built data.
- Minimize projected future delays. If you include projected future delays in the schedule, they should be minimized because projected delays can alter float calculations and possibly change which activities are critical.
- Correct any logic flaws. If you correct any logic flaws found in the schedule, make sure to document and explain the changes at the time they are made. Understand that judges and arbitrators can be skeptical when substantial changes are made after construction is complete.
- Tie causation to each delay. Ultimately, you will have to show whether the delay is non-excusable, excusable/compensable, or excusable/non-compensable.
Using these guidelines, any contractor can begin to evaluate and prepare a potential delay claim as the conditions on project causing the delay occur. If the claim turns to a dispute, you will have done a significant amount of preliminary work that an attorney and/or consultant will need to assist you in the claim. As for my child’s delay claim, this dad is not buying it!