2019 Supplement - Construction Schedules: Analysis, Evaluation and Interpretation of Schedules in Litigation and Dispute Resolution - 5th Edition
Michael T. Callahan is President of CCL Construction Consultants, Inc. He maintains an active international consulting practice in the measurement and responsibility of delay, along with the quantification of additional performance costs and other construction and design-related matters. He earned a B.A. from the University of Kansas and both a J.D. and L.L.M. from the University of Missouri-Kansas City. Mr. Callahan has written or edited Termination of Construction and Design Contracts; Procurement of Design and Construction Contracts; Construction Change Order Claims—2nd Edition; and, is the co-author of Construction Delays Claim. He also prepares a monthly newsletter summarizing current design and construction case decisions for Construction Law Digest. Mr. Callahan was an adjunct professor at the University of Kansas and has lectured throughout the United States, Europe, the Middle East and Far East on design and construction-related topics. He is a member of the Kansas, New Jersey, and Missouri bars by examination. Mr. Callahan is also a frequent arbitrator, negotiator, mediator, and a regional advisor to the American Arbitration Association.
H. Murray Hohns, PE, Fellow ASCE, was a Construction Consultant, Mediator and Arbitrator in private practice. He began to work out of Honolulu in 1987 and his specialty was construction delay, those responsible, and its consequences. Mr. Hohns founded Wagner-Hohns-Inglis-Inc. in 1965 and built it into one of the country’s 250 largest Consulting Engineers. He had two degrees in Civil Engineering and an MA in theology. He wrote or contributed to eight books on dispute resolution, worked on projects in all 50 states and overseas, and managed major construction projects for their owners. Mr. Hohns also wrote a monthly expert commentary for a compilation of reported construction cases for over seven years. He was former President of the Project Management Institute, the National Academy of Forensic Engineers, a member of the Board of Directors for the American Arbitration Association and a thirteen-year member of the national investment committee for a major religious denomination.
Juris Publishing is pleased to present the 2019 supplement to CONSTRUCTION SCHEDULES, Analysis, Evaluation, and Interpretation of Schedules in Litigation and Dispute Resolution, 5th Edition, a comprehensive source for planning a claim presentation or a defense. This publication is an eminently practical reference source, providing both case reviews and citations. The 2019 supplement includes updates to chapters 2, 3, 5, and 7 including the following:
· Chapter 3
In Critical Path Resources, Inc. v. Cuevas, the scheduler was held liable for negligent preparation of a schedule that omitted key safety steps in a critical path schedule for a refinery maintenance during a shutdown. The court found that because of the omitted steps, mechanics did not properly seal off another pipe causing an explosion, death and serious injury to the employees. Possibly the first court decision that deals with a negligently prepared network schedule used to make a scheduler liable for personal injury. The case demands detailed evaluation.
In District of Columbia v. District of Columbia Contract Appeals Board, court found that the contractor’s monthly schedule updates provided owner sufficient notice of delay and satisfied the contract’s 30-day notice requirement.
In Fortney & Weygandt v. DMEP, the Maine Supreme Court accepted contractor’s updated schedules as notice for the contractor’s time extension request and claims. The contractor’s project managers had documented delays on the projects and sent to the owner updated project schedules that anticipated completing the building after the substantial completion date and requesting extensions of the substantial completion date. The owner did not object to the proposed extended substantial completion dates on the updated project schedules. The contractor had believed that through silence, the owner had agreed to the substantial completion later dates reflected in those updated schedules. The court agreed with the contractor.
In Classic City Mechanical, Inc. v. Potter South East, LLC, contractor explained one of its subcontractors had delayed the project. Instead of a schedule evaluation, contractor offered the opinions of two experts. The subcontractor’s expert pointed out to the court that the contractor or its experts had not done a schedule analysis. The Tennessee court found the absence of a schedule analysis persuasive and ruled against the contractor and its delay claim.
· Chapter 5
MW Builders, Inc. v. United States, involved two experts utilizing two different methods to evaluate project delays on an Army Corps of Engineers project. MW Builders, the contractor, had an expert that performed an “Observational/ Dynamic/Contemporaneous As-Is” analysis, part of the AACE’s taxonomy of observational schedule analysis. The expert: (1) “observed” MW Builders’ contemporaneous project schedules; (2) “dynamically” considered changes in schedule “logic,” the order in which activities must be performed, that were incorporated in the schedules, as they were updated; and (3) reviewed the contemporaneous schedules “as-is,” without any after-the-fact changes.
· Chapter 7
The Federal Claims court in RMA Engineering S.A.R.L. v. United States, rejected a contractor’s delay claim, not because the contract had required a CPM schedule, but rather because the contractor’s delay claim was not properly supported. The decision suggests that industry standard now requires a proper critical path analysis to support a delay claim regardless whether the contract had required one.