After-the-Fact Delay Analysis: Judging the Methods, One Practitioner’s Views

Abstract

Let’s start with what we know and can all agree on. The amount and causes of delay can be very contentious topics during the construction of major capital projects. This is particularly true for projects that finish late. In my experience, the financial consequences of delay on these projects usually remain unresolved at completion. While the extent of the delay is no longer an issue at this point, those that believe they incurred additional costs owing to the delays of others still often have to go through the process of sorting out who will pay those costs. This process is unsuccessful in many cases and can result in costly construction delay claims and rancorous lawsuits. Usually, many small and not so small delays caused by more than one of the project participants, or events or circumstances beyond one’s control, combine to cause a project to finish late. At the same time, many other work activities may start later or take longer than originally planned without affecting the project’s completion date. In my experience, troubled projects also generally suffer from poor scheduling and inadequate documentation. As a result, it is usually very difficult for decision makers in these situations, particularly judges and juries unfamiliar with construction, to make fact-based, technically-reasoned decisions as to who should pay whom, how much, and why. After-the-fact delay evaluations, now also called forensic schedule analysis, often provide the basis for these decisions. Most major construction projects nowadays utilize critical path method CPM scheduling, which has given project scheduling and forensic schedule analysis an aura of preciseness not possible before the computer. Even with this relatively new tool, forensic schedule analysts, particularly in adversarial situations, often reach different conclusions using the same set of facts. When this happens, many assume the differing opinions arise because the delay analysts structure their evaluations to support the competing positions of their respective clients. This may be true in some cases; however, in my experience, significant differences can also arise from well-meaning, inexperienced practitioners who use a delay analysis method that is not appropriate for a particular situation or who improperly implement a particular analytical method. In other situations, seasoned and skilled delay analysts simply disagree, legitimately and honestly, about both. From my nearly 30 years practicing forensic schedule analysis, I know this to be true even in nonadversarial discussions between forensic schedule analysis experts. I was reminded of this firsthand by my involvement as a contributor to the Associa-