Chapter Five: Using the Schedule to Prove Time - Construction Schedules - Fifth 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.
§ 5-1 Introductory Thoughts
Establishing the responsibility for delay(s), the length of the delays and what they meant to the economics of the various parties or stakeholders in a construction job or any project is difficult. It is more difficult when one has to begin without a reasonable scheduling effort at the job start and then throughout the project. Forensic scheduling analyses to determine and prove delay and its responsibility are a different task than scheduling a project though they are more successful when the planning and scheduling before and during the project were capably done.
There is a difference between the project’s scheduler and a forensic schedule analyst. The project scheduler approaches the schedules and delay analysis in a prospective manner. The project scheduler relies on judgment and expertise to estimate and predict events, and is usually in a position to affect the updating and quality of the schedules. A forensic delay analysis does not approach the evaluation in the same way the project scheduler would. A forensic delay analyst takes what is available, documents any corrected errors or omissions, adds or corrects as-built dates, and creates new versions of the old schedule or prepares supplemental schedules using project schedules as a resource.
There is no one way to approach this task in Forensics, and while all the attempts so far have come down to a handful of recognized methods, each method will not necessarily repeat what was done the last time that approach was chosen. And each method depends on both the circumstances of the time extension request or delay claim. No method is recognized as the one to follow in the industry, although some are preferred more than others.
We start off by recognizing that no Forensic method is exact. Moreover, they all depend on the quality of the information available in the job record, the quality of the input by the delay analysis, how that input is processed to produce persuasive output, and how the analyzer judges and presents her findings.
The Recommended Practice for Forensic Schedule Analysis is a technical document published by the Association for the Advancement of Cost Engineering, International (AACE). The Recommended Practice was prepared to represent a consensus of most schedule delay professionals as to the best way to perform nine particular delay analysis methods. The nine identified methodologies in the Recommended Practice were intended to reflect the consensus of how each delay analysis method should be performed.
"The new edition of Construction Schedules is a welcome update to the Construction Industry. Construction Schedules is a practical and useful guide to the practitioner in addressing construction delay claims. This treatise will provide a much needed discussion of alternative scheduling methods. In light of recent case law that seems to open the door to alternative schedule analysis, Callahan's and Hohns' most recent effort should be a welcome library addition to Owners, Contractors, Designers and their counsel."
--H. James Wulfsberg, Senior Principal with Wulfsberg Reese Colvig & Firstman, and nationally recognized expert in construction law