Entitlement to time

Look for your specifications for a description on how the Impacted as Planned is to be performed. If you lack such reference I suggest looking the AACEI 23R-03 2011.

I have my disagreements with the AACEI regarding their interpretation that use of available float has no delay effect and that you must claim for it under disruption, this is calling for confrontation as does not allow for an equitable distribution of risk.

The other disagreement is on the application of cumbersome adjustment under negative float criticality. This is not always the contractual condition and is being ruled out in some specifications that call for use of negative float. I believe the recommended practice should leave out the use of negative float as it makes it easier to interpret, expanding on when it is to be applied and when not. Then under separate and completely independent document to include the procedures under negative float criticality, expanding on when it is to be applied and when not.

http://www.arcadis-us-pmcm.com/assets/files/PinnacleOne_Criticality_What_Do_Courts_Say.pdf

Perhaps the owner is not happy with your acceptance of the Impacted as Planned method but triple happy.

http://www.alway-associates.co.uk/legal-update/article.asp?id=14

What are the weaknesses of this method?

It is a very theoretical method.

It relies heavily on the As-planned programme, and can show misleading results if the As-planned programme is incorrect (either in terms of durations for activities or in respect of logic linking).

As the As-planned Impacted programme rarely bears any relationship to what actually happened on site, it is difficult to use the results to ascertain a Contractor's actual extension of time entitlement.

If records are available for an As-built programme , then it is unlikely that a tribunal would accept this theoretical method as being a basis for assessing a Contractor’s Extension of Time entitlement.

Hi John

Welcome to Planning Planet.

I assume you are based in the UK

Impacted as Planned method as described in the SCL protocol should only be used when work is in progress.

Your Employer is currently allowing its use but beware when he gives it a final rejection and you are left with an adjudication based on a flawed analysis.

I agree that its theoretical result makes concurrency uncertain - you have to pay attention to the As Built data to get a reasonable result and that means a Time Impact analysis (UK terminology)

I would reccomend therefore that you head all submissions as "Without Prejudice" until you get a finasl agreement.

Regarding the Baseline programme it is important that it demonstrates the Contractor's original intent. Beyond that it must be dynamic and responsive.

I have never yet in my career as a delay analyst found a contractor's baseline programme that was fit for delay analysis purposes - they all have to be adjusted and sometimes developed into fine detail - for instance a level 3 programme has to come down to level 4.

So missing links have to be added if the programme is to respond dynamically.

In the same way all constraints must be removed and replaced by logic - for instance if you have a task with a "Must Start On" flag then it should be replaced with predecessor tasks and logic.

It is best to get these adjustments agreed before you start to impact any events.

Have a look at Rafaels web addresses - particularly the Alway associates one - I was working with Lorne Alway when that item was drafted.

You will also get good guidance from

www.planningacademy.org

where the tuition module on Priciples of Delay Analysis clearly explains what is required for a succesful delay analysis.

Best regards and Good Liuck.

Mike Testro

Hi Guys thanks for taking the time to reply.

The methodolgy isn't in question as the Employer has their own representative who has carried IAP to determine the entitlement, also the Employers spec is very vague when it comes to EOT and demonstrating entitlement, therefore the Employer could hardly reject our claim based upon the analysis used when they themselves have used the same methodolgy to dermine the entitlement.  A time impact analysis will demonstrate concurrency i am certain of that, we are taking the view that by using IAP we are showing that if the project had of been on time and this was the only delay, then what time extension would the contractor been entitled to.

Also the contractors programme is surprisingly very robust, no constraints, fully logic linked and of sufficient detail to use for analysis.  The programme does therefore show the orignal intent although it is a very tight programme with total float of one week running through the critical path.

So it is now coming down to simple discussions like logic, and as mentioned in original post the employers representative rejecting logic that wasn't present in our baseline but yet does represent reality, the example in my original post is a classic example of this.  On the flip side the Emplyers rep is removing logic to reduce entitlement based upon the fact that its not relasitic and will not represent what will happen on site, ie Activity B is not really dependant on Activity A finishing so remove the link.

So in a nutshell the Emplyers rep is removing logic from the programme to mitigate when it suits on the reasoning that it does not represent reality yet when we try and insert logic on what is reality it gets rejected!!!!

Hi John

My original warning still stands.

If you can't reach agreement by negotiating around a TIA approach and you then go to an adjudication you will find that the TIA analysis will most probably not be accepted by the adjudicator - you may have got away with it 10 years ago but not today.

The employers consultant is being unreasonable in applying logic that suits him but disallowing logic that supports your case.

My antennae is twitching - you are being led into a trap.

Make sure that all negotiations and submissions are conducted "Without Prejudice" until the final agreement is reached.

This will prevent the Employer producing any of the documents in a forthcoming adjudication and you will have a clear field.

Best regards

Mike Testro

Hi Mike,

when you say negotiating around a TIA approach, you mean Time impact Analysis or Impacted as Planned (or do you class these as the same?)

Regards

Hi John

Sorry - silly typo.

You are currently dealing with Impacted as Planned and that is what I was referring to.

You will eventually have to resort to a Time Impact analysis for an adjudication and I would advise that you start getting your As Built programme put together now.

The terms TIA and IAP are sometimes interchangeable in US jurisdictions - I have been advocating a common set of terms for some time now.

Best regards

Mike Testro

Mike,

I agree with you. Unfortunately although AACEI recommended practice adequately calls the attention on how confusing common names are they do not solve the issue by assigning a common name such as Contemporaneous TIA, Contemporaneous Windows, Forensic TIA ..., names that would be more human like and not a long WBS code as they are, they are tongue twisters. The issue is not on what they call taxonomy but on the lack of a common name. Somehow someone came out with the idea of over-complicating what could have been an excellent reference.

Maybe you can call it Retrospective/Observational but partially Static/Modified by rule 23, an easy name to remember, by itself a mnemonic that will prevent future typos, at least seems what they hope. A name that will make it easy to understand on the spot what we are talking about. A name that if Retrospective/Observational but partially Static/Modified by rule 23 is compared against Retrospective/Observational but partially Dynamic/Modified by rule 23 a judge will easily remember and repeat without any typo.

Now we got all methods named by a WBS and not a single common name that makes sense. I do not believe you would present a schedule where activities have no description or name but a unique WBS code as a substitute. You are in the UK but on this side of the Atlantic I will have to swallow this enema more frequently than you. The SCL makes reference to the AACEI in their protocol so you are not completely free of it.

Best regards,

Rafael