Issues of time impact analysis

Hi Shahul

Time Impact analysis is a very complex precedure that is used for forensic delay analysis after the work is completed.

It works best if there are good quality As Built records.

Every event has to be impacted into the programme in strict chronological order and then the impacted result has to adjusted to re allign with the As Built data.

If the work is in progress then an Impacted As Planned method will show the likely delay effect on the completion dates.

Again every event has to be impacted in strict chronological order and the cause and effect of each one recorded.

All types of events have to be impacted:

1. Employer risk
2. Contractor culpable
3. Neutral causation

So that concurrency can be applied.

Best regards

Mike Testro.

Shahul

Time impact analyses have many definitions and seems to me the USA definition is quite different to the UK standard. In the US TIA is generally intended to be used before the work is completed although it can be used after. On the other hand the Windows method is to include all impact events for a short span period, usually a month, the commonly required updating period in our contracts.

The following links can provide you with some of the US definitions.

TIME IMPACT ANALYSIS – AS APPLIED IN CONSTRUCTION

From the above link:

The TIA procedure is performed while a project is on-going, and thus has a ‘forward-looking’ or a “prospective analysis” perspective in near-real time. Retrospective (hindsight) forensic research and analysis is not desired or required as a TIA is a forecast designed to facilitate a timely contract adjustment prior to the actual work being completely preformed.

Beware of the dark arts

From the above link:

I’ve devoted a greater part of this paper to the Time Impact Analysis method than the others because it is the method recommended by the SCL Protocol4, and it is presently enjoying extensive use in the various dispute resolution forums. Like the Impacted As-Planned method (discussed above) this is also both a ‘prospective’ and ‘dynamic’ method.

Is SCL in the UK?

Techniques and Methods for Assessing Delays

Best regards,
Rafael

Hi Rafael

SCL is the Society of Construction Law based in the UK but with branches in many countries.

They published the Protocol in 2002 and it is now out of date.

I am a member and I attend some very useful seminars to keep up to date.

Best regards

Mike Testro

Thanks Mike

I downloaded the Protocol from the SCL site, and found the following under section 3.2.11 :

The methodology described in this section is known as ‘time impact analysis’. The Protocol recommends that this methodology be used wherever the circumstances permit, both for prospective and (where the necessary information is available) retrospective delay analysis. The methodology will not be capable of being used contemporaneously unless a proper programme has been prepared, accepted and updated as recommended in Guidance Section 2 above.

Agree 100+%.

Best regards,
Rafael

Hi Rafael

Me too.

Now look at what the Protocol considers to be a "proper programme" particularly para 2.2.8.

Best regards

Mike Testro

Hello Mike,

Pls tell me if its correct...

For our TIA, I used the Clause 14 and add some fragnets activities then make a progress update..recording of 2 parties delays..(Clause 14 VS Progress Update)

What else should I show to our schedule?

Can you give me a step by step procedures?

Sooooo confused....


Thank you,

Mike

Regarding Lag, if this is what you are referring to, I found SCL to be deficient as it leaves too much for interpretation when it says that excessive leads and lags should be avoided. Maybe 10,000 days is what they mean as excessive!

Our specifications and protocols do not prohibit the use of lead and lags as well but in addition provide more specific guidance with reference to the scale of the schedule as to what is excessive. It is common in our practice to consider lags and leads over 10 days as “suspicious” when the schedule scale is set for 20 days max activity durations.

Best regards,
Rafael

Hi Rafael

In my terms of reference any lead lag is execessive and should be avoided.

I come across the problem every time I reveiw a contractors flawed programme for delay analysis.

Do it right or get it wrong.

Best regards

Mike Testro.

Hi Mervyline

You wrote

For our TIA, I used the Clause 14 and add some fragnets activities then make a progress update..recording of 2 parties delays..(Clause 14 VS Progress Update)

What else should I show to our schedule?

Can you give me a step by step procedures?

No I can’t give you a step by step procedures without telling you everything that I have learnt over the last 12 years in delay analysis.

Best regards

Mike Testro


Thank you,

Mike

The SCL should ban all software that have the functionality for lag and leads in favor of the software of the 60”s. Yes like those who would like to go back to the activity on arrow networks and the Dummy activity and prohibit PDM, with only finish to start relationships. Delay Analyst like the idea as it fit their needs, most are lazy and don’t want to get into the new functionality that makes their work harder.

On the other hand I know of no Contractor that would go back to the 60’s. Their business is making money where professionals manage their jobs and not rookies that after learning a few software commands pretend to manage million dollar jobs. They need serious but easy to use software that model their way of planning; they do not need others to tell them how to plan. Sorry ladies this is serious stuff as you said at another thread, if you don’t know how to build it you cannot plan it.

Even better to finally check mate on the schedule and completely take it away from the Contractor why not let the Owner play the Contractor and prohibit Lump Sum Contracts, only Cost Plus allowed and everyone will be happy. Prequalify your Contractors and at Bid opening just throw the dices and select the Contractor. Forget about the Contractor using the tool to model the schedule the way he thinks of it, let the Owner think about it 100%.

Mike, I love Planning Planet because here we are able to openly debate the issues and hope ORACLE will never take over and not let us debate as we have being doing it for so long.

You know I don’t mean every word it is just a debate, like politicians do. Throw me your best punch.

Best regards,
Rafael

When it comes to doing a TIA or even window slicing method of analysis, the toughest issue that i have always faced was the availability of a properly updated program. In most cases there were reasonably good baseline programs, but the updates were not reflecting the ’real updated intentions of the Contractor at each updated point of time’.

Unless there are updated programs which really reflect the changes in construction logics, it is very difficult to go for a TIA analysis, especially when it is tried to be used as a prospective method in the middle of the project.

Hi Rafael

Progress does not necessarily equate to improvement.

Doing it properly the first time is not the lazy way.

Hi Sreejish

You are quite right that the biggest obstacle to demonstrating cause and effect of delay is lack of records.

Best regards

Mike Testro.

We discussed using lags previously. There are projects that could not be properly simulated without using lags.
One example - pipeline construction.
Regards,
Vladimir

Sreejish

You are right, but at the Data Date of a TIA, just prior to the impact, you just need to have the remaining work correct as TIA in a prospective mode will only consider the impact events over the remaining work.

You don’t have to be so picky about the past.

Updating precision is usually more reliable when you schedule with activity durations smaller than your update periods, this to determine with more precision the remaining duration of started but not finished. These you got to pay particular attention as they are part of the remaining work. A scheduler might be tempted to assign low remaining duration to in progress critical activities as to increase the effect of delaying events on the projected finish duration.

Best Practice guidelines are useful, regarding duration, use of lags and everything else. Of course they are not intended to be interpreted literally but to be applied wisely.

Mike,

“Progress does not necessarily equate to improvement.”- You are right just consider P3 vs. P6.

“Doing it properly the first time is not the lazy way.” – Again you are right I merely used the word lazy just for fun as in a few of our previous discussion on the lag issue you labeled as lazy those who use lag.

I believe use of lag or splitting an activity into two different activities does not eliminate the arbitrary time/duration factor but instead will increase the occurrence as at only the lag you will have it at the activities, with the effect that it will show twice, on the first and second activity.

P3 by keeping splitting the activity within the same activity record will show you the out-of-sequence event until you correct the logic in the right way. Asta by splitting the activity into two different activity records hides the out-of-sequence event which might be wrongly rescheduled as the fix is not always the correct one is a two sided knife.

When you eliminate lag through the use of discrete activities you hide true logic, the logic as a Delay Analyst you would like never happens. By making use of discrete activities you hide the linear flow that must be maintained between the activities. A dynamic relationship that is not fixed at a single point, fixing it at a single point is in error.

Vladimir,

There are linear projects where lag is the order of the day. In order to communicate, to keep them manageable and understandable you need software that provides the appropriate reports while keeping the rigor in the logic. Here I got impressed with the functionality of Spider Project.

Best regards,
Rafael

Hi Rafael

In my mind there are two ways to sequence activities.

1. You can have 1 activity spread over several locations.

> Plastering split into multiple floor levels

2. You can have several locations with all the activities in it.

> Level 4 with plastering in the cascade.

I prefer Nr 2 which suits my Basic Priciples of planning.

You can keep the logic flow of plastering through the levels by filtering and group linking FS to all plastering activities - takes 20 seconds.

Best regards

Mike Testro

Mike

You are tracking plastering vs. plastering, but what about CMU (Masonry Units) vs. plastering or any other group of activities where the continuous flow relationship is also hidden when using discrete activities.

How are you going to represent a continuously movable link? Sorry I don’t know CPM software that can do this, lag is even short, is an approximation. At times the best option is to multiply by two what you oppose, use two links with lag to create laddering. Even Microplanner many years ago created a special type of activity for this purposes, it was great.

Best regard,
Rafael

Hi Rafael

In each location the trade cascades are each linked FS so the logic flow goes from trade to trade.

In a typical simple finishing sequence this would be something like:

Blockwork > BWIC > M&E Drops > Joinery 1st Fix > Plaster > Ceiling Grid > etc etc to Clean Clear & Lock up.

Between each location the trades are linked in sequence FS.

There is no "continuous moving link" just lots of FS links between individual trade sections.

If you want to call this a ladder then so be it.

It is very quick and simple when using copy - paste and trade filters.

Best regards

Mike Testro

Mike,
we returned to the same question:
Using SS and FF with Volume Lags we created Caspian pipeline construction schedule consisting of more than 8000 activities (with 1145 resources).
Using your approach we should divide most activities to the small sections and thus multiply the number of project activities.
Is it practical?
Besides it is too rough if the sections are not very small.
Rafael’s definition "continuously movable link" is true reflection of reality.
Best Regards,
Vladimir

Hi Vladimir

Can you answer the question that I posed to Rafeal.

What happens to the logic when progress on the bar goes over the lead lag link?

Best regards

Mike Testro.

Mike,
you remember that it is necessary to set both SS and FF links with lags. And FF link can help when SS is broken.
In Spider Project everything is easier - you can set volume lags like 500 meters distance between crews but this is specific to Spider Project.
So I think that both SS and FF can help with retain logic option.

Vladimir

Sure that FF helps when SS is broken. I would like to add it is not just redundancy, is more than that, it keeps logic. True ladders have equal steps (durations) and equal legs (SS and FF lags) but at times durations, SS or FF lags are or become not equal and one takes control over the other, at other times a change in remaining durations change the finish date of the successor and the FF relationship is a must to keep true logic, the FF relationship.

Shahul

I don’t think use of lags is going to invalidate your TIA, the wrong use of any functionality whatever it is might. But yes pay attention to lag, it is sometimes abused and can be used as a float suppression technique especially if your software is not good at filtering and reporting for float. Usually file comparison software like Digger for P3 is handy; unfortunately it is no longer available for sale.

When I was a Project Manager I had my character, at that time if a scheduler on my jobs would come with the idea of not using lags I would rather send him home instead of having in our team a scheduler thinking in the opposite way we at the jobsite plan our jobs. Before taking such a radical approach you should investigate how your team do their planning.

Best regards,
Rafael

Many thanks to all planners who has shared their worthy experience.
Please check the way i did TIA analysis and your suggestions and advises are required

Step 1- Delay event identification from the project happened on 1 Jan 09 due to major HV {High Voltage } design changes
Step 2- Introduction of Delay event {HV Design changes} in to the programme which is updated as of 5 Jan 2009
Step 3-Checking from the baseline the design HV activity initially connected to what all activities using jump command in P3
Step 4-Checking baseline critical path
Step 5-Linking delay event{HV Design changes} to HV design activity in updated 5 jan 2009 Programme
Step 6- Followed by F9
Step 7-Checking is there any changes in float of project completion due to delay event
Step 8-If float changes occurs it will be noted as delay of project if not no impact on project completion

Hi Shahul

You have followed the correct procedure for what we in the UK call an Impacted as Planned analysis.

Just because there is no overall delay the loss of float may have financial effects which should be investigated.

Plant standing for longer than planned for instance.

When you are faced with a number of events they have to be impacted in strict chronological order and the key to accuracy is calculating the date of impact.

A written instruction is often issued retrospectively and the starting date for the event would have been earlier.

You must also account for the period between start of the event and the impact date which is the earliest date that you could have started the work after processing the changes.

If the event impacts on more than 1 task you have to impact the event on all of them.

Best regards

Mike Testro

Hi Rafel,

sorry that i took a little long to get back.

The updating precision was a real problem for me for two main reasons

1. The horizontal nature of projects – the programmed logic was not really honored by the Contractor’s construction guys. Moreover when there was a delaying event, the construction guys shifted the workforce to a new available work front. Doing this had caused disruption to the Contractor, but it reduced the impact of delay no project finish. Because the Contractor was still able to continue with works on a different work front which was initially planned to execute at a later date.

But these changes in construction logic (which Contractor adopted at site due to the delaying event) were not reflected in their updates. Instead they maintained the original baseline logic and just updated with actual start and finish dates. So unless an activity is started (actual start) it showed expected start dates as per original logic. Since the client delayed activity was in the middle of the path, the updates always showed an inflated delay on project finish.

2. The large number of delaying events – Due to this if I had to consider correcting the program updates at the start of the events I had to practically re-do the entire updates.

I think shahul has impacted the updated program with the delaying event, in that case will you call it as ’As Planned Impacted method’. I think for ’As Planned Impacted’ method the Baseline program needs to be impacted with delaying events.

Hi Mike,

I think shahul has impacted the updated program with the delaying event, in that case will you call it as ’As Planned Impacted method’. I think for ’As Planned Impacted’ method the Baseline program needs to be impacted with delaying events.

Hi Rafael,

Sorry, the last part of my previous post was in response to what Mike said

Warm Regards

Sreejish

Hi Sreejish

It depends on what the contract says but usually the last accepted updated programme should be used to impact events.

An impacted event in itself creates an updated programme.

Best regards

Mike Testro

Mr.Mike for AS planned impacted method can we use updated program .would it be mentioned in the contract?

Hi Shahul

For work in progress then an event should be impacted on the programme that is being worked to - and agreed - at the time of the event.

For forensic analysis the original baseline is the starting point.

Best regards

Mike Testro

Hi Shahul

For work in progress then an event should be impacted on the programme that is being worked to - and agreed - at the time of the event.

This is key, although prior historical dates are fixed and do not affect the computations you cannot obviate including the effect of prior delays, Owner and Contractor as these might be opening or absorbing float on the remaining schedule. You still got to be very picky about the inclusion of prior delaying events and their true dates in the order they occur.

If the update does not show prior delays then these can be used but in a retrospective way to apply delaying events in sequence as per SCL Protocol.

"The methodology described in this section is known as ‘time impact analysis’. The Protocol recommends that this methodology be used wherever the circumstances permit, both for prospective and (where the necessary information is available) retrospective delay analysis."

If this is the case then, determination of relevant chains and true remaining work status at the various data dates becomes more difficult, therefore in this case you should be picky about all update dates.

I have used the methodology only in the prospective and have my doubts about using it into the retrospective. Two or three updates periods behind will not make it a retrospective analysis but many definitively will. It is impossible to perform a TIA in a purely prospective way as you cannot predict the exact moment in time it will happen in order to apply it at this precise moment. Almost all literature I have read calls this procedure to be applied in the prospective and question the use of the methodology in retrospective way.

That I have my doubts does not means I am ruling out the validity of applying the procedure in the retrospective, I would even like it to be valid (not perfect but valid), is just that for the moment I am not ruling out opposing views.

Best regards,
Rafael

Shahul,

For your knowledge.

In our practice those that make de decision for awarding EOT’s are usually the Architect, and the Owner’s Rep, these are not expert on CPM procedures and usually go by analyzing just what they perceive to be the relevant chain. Frequently they are close on target but not always. My recommendation to the Contractors is to always do the scientific analysis and discuss it at the simplified level; well almost never they follow my recommendation.

I believe this practice almost always goes against the Owner as Owner Caused Delays, the ones you can make a claim against can occur in parallel and some delay time might be awarded in duplicate. You miss the effect of concurrency.

In less than 10% of the jobs I have been involved TIA was correctly applied as per CPM theory.

Best regards,
Rafael

Rafael,
you wrote:
"Two or three updates periods behind will not make it a retrospective analysis but many definitively will."

Spider Project keeps the history of the project performance and can show trends of all project parameters.
We recommend to insert in the archived schedule models the meeting minutes with the decisions made at the moment. So you are able to track the history of all project delays and decisions that were made.

Best Regards,
Vladimir

Yes Vladimir,

These records are of utmost relevance to unveil true plan intention at the time of impact, no doubt about it. That you have a cross reference to relevant documents tied to your activities is a good thing, few software can do that, P6 can do it but I don’t like it, so in my list of software I would consider, only Spider Project can do that, got to find out about Powerproject. Keeping track of relevant documents at the click of the mouse is great.

How you do it by creating a link to the document or by making the document part of the data within your database, as a graphics field? I believe P6 like Expedition uses links; the problem is that if you move the database the links are lost unless you follow cumbersome procedures; a change in drive name is enough to make you lose the links.

In court cases documentation is key.

Best regards,
Rafael

There are two options - to create a link or to insert the document in the project file. So sending the schedule model elsewhere you will also send the embedded documents in the original formats. We recommend to insert only those documents that are part of the project history like meeting minutes and change requests. Other documents like drawings, etc. shall be linked. Project archive is kept as a number of project files with the same name but different version (001, 002, ..., 999). You can also change the file name but shall remember all names when restore history and trends. You can compare any two versions with each other, any of them can be used as the baseline, you can open past project files to study the situation at the past moments. Best Regards, Vladimir

Vladimir,

Two options, THIS IS GREAT!!!!!

I understand the issue on file size, like most in this community.

Best regards,
Rafael

Hi Rafael

In Powerproject you can create an OLE file link annotation from any external document supported by windows and connect to any task.

It works fine for internal documents but if you are submitting the file to an adjudicator you have to send all the other files and make sure the link paths are still valid.

Best regards

Mike Testro

Mike,

Thanks for the clarification about Powerproject, linking to relevant documents are a functionality SureTrack does not have. It is handy when updating your schedule so you can go directly to the documents at the click of the mouse.

I would like to have your opinion about TIA as defined by the SCL in the retrospective. I have my doubts, but maybe is an acceptable compromise. Even in the prospective is not perfect (none is perfect) here believe it to be a good approximation in favor of more sophisticated methodologies. Shahul should be aware of the issues.

Best regards,
Rafael

Hi Rafael

I said earlier that the SCL is now out of date.

5 years ago I was presenting Impacted as Planned analysis in retospective delays and getting away with it.

Adjudicators have started to wise up a bit.

Today if you have not got As Built Records AND a responsive programme as a baseline there is a very small chance of success.

Just recently I put together an EoT claim with no charts at all - just a narrative with dates - because the original contract programme was useless - I am waiting for a response.

Best regards

Mike Testro

Mike,

Here, in our jurisdiction, yesterday, the day before yesterday, today and the day after, if you have no As-built Data you got nothing, here this is nothing new.

On the other hand the lack of a formal schedule in our courts does not prevent you to create your missing schedules from the As-Built data to which you can apply prospective Delay Analysis tools including TIA.

In our Courts if your contract does not requires you to submitt a CPM schedule, this does not prevent you to make your claim. The same way if the Baseline is questioned you can use the same methodology as if no CPM was ever required.

There is a tool to automate the procedure to create your missing schedules within Ron Winter Schedule Analyzer Forensic, is called Schedule Rebuilder, there is a version for P3 files and a version for P6 files.

http://scheduleanalyzer.com/forensic_over.htm

From the above link:

_"Schedule Rebuilder changes copies of later schedules into ones that are accurately and objectively modified to reflect what the schedule would have indicated as the current status for any given data date."

This is a tool as an action scheduler I hope will never have to use, to those of you into forensics I would recommend to take a look at it. Rebuilding a schedule, when necessary, is an area where a Forensic Analyst should shine. There is a non forensic Suite for the rest of us.

That the SCL is outdated with regard to UK practice and have not been able to keep up with the times is something I don’t know nor dare to comment.

Best regards,
Rafael

Hi Rafael

Lucky you in USA that have an axiomatic method of creating a new baseline that will be accepted if the right software is used.

When I try it in the UK I am immediately accused of rigging it to suit the case.

This is why if I start a new analysis I insist on redrawing the original - and useless - programme BEFORE I study any events.

Best regards

Mike Testro.

Mike

This is most probably only in a few Continental US cases because of the complexity of it.

USA has 50 states each with its own State Supreme Court, also each territory its own. I doubt this methodology has been tested in my territory, if submitted I believe can pass the test. That it have not occurred as of today do not invalidate the procedure. I believe it is good to any Delay Analyst to explore it and document it has been used and accepted.

I agree on your approach for redrawing the original as the analysis shall be based on the most appropriate schedule depiction no matter if it was used or not as the official schedule. If the official schedule was wrong just burn it, but don’t go on vacation, now is when this thing is just starting in the right direction. The facts with appropriate documentation are what matters.

Why not asking the other part if your schedule is fully accept with no exception taken, most probably they will have some objection, and then you agree with the other part and submit your corrected schedule the same way they are to submit their corrected version.

In our system I believe this must be disclosed very early othewise it will not be accepted.

Are you going to present your case with a schedule you know wrong from the very beginning? Would it be fair justice to deny you to present your case based on the true facts and force you to use the wrong schedule?

Best regards,
Rafael

Thanks to all for your advise .
Would you please clear a doubt, in the approved baseline from consultant some relationships were illogical or never thought that a delay event "X" would affect a particular activity "A".Now we are linking delay event "X" with "A" and naming it as revised logic.
Does it correct?,will it withstand for any argument purpose in the courts .
*we are doing it to reflect actual condition of project*

Hi Shahul

In a delay situation the Contractor is obliged to mitigate any delay effects provided it doesn’t cost any money.

If the delay can be mitigated by simply changing the planned logical sequence then the Contractor must do it.

No EoT is available if he refuses to comply.

Best regards

Mike Testro

Hi Rafael

The disadvantage of the Impacted as Planned is that the results are purely theoretical with very little resemblance as to what happened.

When this is laid over a reconstructed baseline then the accusations that the whole excercise has been rigged for a purpose is very strong.

In recent cases (Skanska v Egger > Laing v Great Eastern > Shepherd v City Inns) it was found in court that the logic had been re-arranged and was flawed.

All the cases were lost when the trick was discovered.

Best Regards

Mike Testro

Mike

I don’t believe in the Method of Impacted as Planned, it is flawed as soon as the dynamics of the schedule makes it obsolete. For this reason the argument that was rigged for a purpose has no meaning to me.

Regarding the cases you mentioned, each case is unique and should be analyzed by its own merits. That in a particular case it was found that re-arranged logic was flawed does not means in other cases it could be otherwise; original schedule flawed and revised schedule not. Obviously the other party will claim anything you submit is wrong, original and any revised schedule.

I still believe you are right in correcting wrong schedules to be submitted to court of law, not doing so is lying, a criminal offense. We all know some Contractors don’t pay attention to the CPM and submit whatever just to comply with a contractual requirement. Yes they are wrong, but they don’t think so until there is a Claim in Court.

Shahul

Any delay analysis should be based on valid schedule logic at the time of impact. If you found the logic to be wrong then a correction is in order.

I agree with Mike’s statements about delay mitigation, what at time shocks me is that the Owner is not required to mitigate.

Best regards,
Rafael

I AM NOT A LAWYER so take all this with a pinch of salt and don’t rely on it!

And my memory is fading but I am pretty sure that the majority of standard forms of construction contract do not use the word ‘mitigate’.

Again, as far as I know (in English Law) there is a common duty to mitigate damages and in that context the Owner does have a duty to mitigate.

Before going too far it is also useful to remind ourselves what mitigation means, ’to make something less harmful, unpleasant or bad’. It does not mean, ’to do away with altogether’. There is also an overarching principle that it should be reasonable, practicable and proportionate.

However, it is generally wrong to say (subject to the precise contract wording) that there is a contractual obligation to prevent and/or mitigate delay’. Generally, JCT contracts for instance say something like ‘shall use constantly his best endeavours to prevent delay…’. In simplistic terms I think this means that the contractor is to attempt to prevent delay not to prevent delay.

Some say that ‘best endeavours’ requires the contractor to do more than the lower standard of ‘reasonable endeavours’. I am aware of no case law that actually states this. However, the SCL Protocol says (at paragraph 1.5.2):
Note that the requirement in the UK Joint Contracts Tribunal (JCT) contracts for the Contractor to use ‘best endeavours’ to prevent delay to the progress of the works and prevent completion of the works being delayed beyond the completion date may place a higher burden on the Contractor than the normal duty to mitigate. …

The obligation does not require the contractor to expend substantial sums to reduce the delay. In Midland Land Reclamation -v- Warren Energy it was held that the best endeavours obligation was not the next best thing to an absolute obligation or guarantee. In Terrell -v- Mabie Todd it was held the obligation does not extend to a situation where a company should put itself at risk of financial ruin to fulfil its obligation. It does seem clear however that it should carry out such actions that are commercially practicable and incur any reasonable associated cost in order to fulfil its responsibilities.

The more recent case Rhodia International Holdings -v- Huntsman International attempts to differentiate between ‘reasonable endeavours’ and ‘best endeavours’ but there remains little guidance of what is expected by way of example in the construction industry. The consensus appears to be that ‘reasonable endeavours’ oblige the contractor to take only one reasonable course of action, not all of them. ‘Best endeavours’ is likely to oblige the contractor to investigate and/or take all reasonable courses of action. In either case the emphasis is on a reasonable course of action.
The SCL Protocol is helpful in this regard (okay, not everyone likes the Protocol!):
1.5     Mitigation of Delay
1.5.1     The Contractor has a general duty to mitigate the effect on its works of employer Risk Events. Subject to express contract wording or agreement to the contrary, the duty to mitigate does not extend to requiring the Contractor to add extra resources or to work outside its planned working hours.
and
1.13.4     The limitations on the Contractor’s obligations to mitigate Employer Delay are set out in Guidance section 1.5. The Contractor does not have a duty to carry out any change in scope any more efficiently than the original scope. Neither is the Contractor obliged to expend money in order to mitigate the effect of an Employer Risk Event. If the Employer wishes the Contractor to take measures to mitigate the Employer Delay (whether by adding extra resources, by working outside its planned working hours or otherwise), the Employer should agree to pay the Contractor for the costs of mitigation of those efforts.
1.13.5     It is the obligation of the Contractor to proceed with the works so as to complete on or before the completion date. However, the method, sped and timing of the activities forming the contract scope are generally left to the Contractor’s discretion, subject to any stipulated prior process of acceptance of method and/or programme.
1.13.6     In the event that changes are made to the scope of the works, the Contractor has a similar obligation as to efficiently in relation to the changed scope as it has to the original scope.

On the subject of Impacted As-Planned I think we are all pretty aware of its shortcomings. However, whatever technique one uses to demonstrate delay one has to make the most of the information available. There is a useful table in the SCL Protocol (at paragraph 4.13) that shows what records/information is required to undertake one of their four methods of analysis. For instance, to carry out an all singing all dancing Time Impact Analysis you need a networked as-planned programme or updated as-planned networked programme plus as-built records. But for a simple Impacted As-Planned all you need is networked as-planned programme.

So, now tell me all you who sneer at Impacted As-Planned what are you going to do if there are no records other than the original as-planned programme (and that might not even be networked, you might have to use your expert skill to create a network). You could throw your hands up and stamp and say I want to carry out an As-Planned –v- As-Built analysis and go home and leave your client in the lurch or you could do your best with the information you have available. Remember, all we have to show is the cause of delays on the balance of probabilities given the evidence we have and how we can present it. If you had to give a ruling with one side having carried out an As-Planned –v- As-Built analysis and the other side having done nothing (both sides having access to the same records) would you make a decision on what is presented to you or would it be another case of throwing your hands up, stamping your feet and going home?

As an aside I think we are getting a little too hung up on technique titles. In my experience I have never used a single technique alone, the data is not always there, there is too much of it, there is insufficient time, so on and so on. Depending on what the forum is, from a contractual claim to a formal civil litigation, depends on the manner on which the evidence is presented; either acting as an advocate or as an independent expert. That may also mean that you have to present the evidence in a way which supports your company’s commercial necessities or in an unbiased way in support of the court.

What we seem to be finding recently, for instance in the cases that Mike mentioned, is not a failing of methods or techniques but of seemingly failings on the part of those who applied them. Critical path methods, some would say (Beware of The Dark Arts), are discredited in the eyes of the courts, I am not sure if I support that view. If it is the situation it is not the technique per se but the unfortunate misapplication of the techniques in some high profile cases by some high profile experts that has resulted in the mistrust. In my opinion that has resulted in a great disservice to our discipline and a step backwards in scientific management techniques.

Rant over (for the time being).

David

Another quick one…

Time Impact Analysis was originally developed as a retrospective method (by that I mean carried out at the end of the project).

The original philosophy of the technique still holds true:

“The majority of the existing methods identified earlier involve a retrospective look at the project once it has finished. This is probably as a result of the techniques having been developed to determine and attribute delays after the project is complete and when a claim has been submitted and perhaps the contract is in dispute and subject to alternative dispute resolution, arbitration or court proceedings.

Whilst it is an untested hypothesis, it is fair to assume that many of the projects that end in disputes do so as a result of the contract not having been administered properly during the currency of the project. In respect of construction project delays, this is a result of individual activity delays and their causes not being identified, analysed, determined and attributed contemporaneously. The proposed methodology uses this premise as its basis; to analyse the delays in the chronological sequence reflecting the manner in which they would have been analysed if the analysis had been carried out at the ’correct’ time. The simplistic view being that the additional restraints (or impacts) that are added to the as-planned network during the simulation would have formed part of the as-planned network if they had been known at the time of its production.

The techniques proposed therefore are not novel. These are the techniques of dynamic planning and scheduling, of keeping the as-planned network up to date throughout the currency of the project. This simple approach allows assessment to he made of three important aspects that are largely ignored by previous methods:

> The progress of the project at the time the delaying event occurred.
> The changing nature of the critical path:
> The effects of action taken, or that should have reasonably been taken, to minimise potential delays.

The proposed technique is critical path method based and is described as ’the simulation of construction project delays using network techniques`.

Simulation is defined in BS 4335:1987 as:

‘The processing of a project model (usually mathematical) to reproduce what would be expected to happen in the project, with different conditions and different starting points’.”

Another quick one…

Time Impact Analysis was originally developed as a retrospective method (by that I mean carried out at the end of the project).

The original philosophy of the technique still holds true:

“The majority of the existing methods identified earlier involve a retrospective look at the project once it has finished. This is probably as a result of the techniques having been developed to determine and attribute delays after the project is complete and when a claim has been submitted and perhaps the contract is in dispute and subject to alternative dispute resolution, arbitration or court proceedings.

Whilst it is an untested hypothesis, it is fair to assume that many of the projects that end in disputes do so as a result of the contract not having been administered properly during the currency of the project. In respect of construction project delays, this is a result of individual activity delays and their causes not being identified, analysed, determined and attributed contemporaneously. The proposed methodology uses this premise as its basis; to analyse the delays in the chronological sequence reflecting the manner in which they would have been analysed if the analysis had been carried out at the ’correct’ time. The simplistic view being that the additional restraints (or impacts) that are added to the as-planned network during the simulation would have formed part of the as-planned network if they had been known at the time of its production.

The techniques proposed therefore are not novel. These are the techniques of dynamic planning and scheduling, of keeping the as-planned network up to date throughout the currency of the project. This simple approach allows assessment to he made of three important aspects that are largely ignored by previous methods:

> The progress of the project at the time the delaying event occurred.
> The changing nature of the critical path:
> The effects of action taken, or that should have reasonably been taken, to minimise potential delays.

The proposed technique is critical path method based and is described as ’the simulation of construction project delays using network techniques`.

Simulation is defined in BS 4335:1987 as:

‘The processing of a project model (usually mathematical) to reproduce what would be expected to happen in the project, with different conditions and different starting points’.”

David As you said the following also applies to me,I AM NOT A LAWYER so take all this with a pinch of salt and don’t rely on it! In our system of law the concept of Common Lay is applied but also there are Exculpatory Clauses commonly used in our contracts targeted toward limiting the Owners’ liability. An exculpatory clause for negligence contained in a contract made between parties who have roughly equal bargaining positions usually will be enforced. This might have the effect of making any claim under the Duty to Mitigate not enforceable. Needless to say I have my issues with this and do not like exculpatory clauses. Best regard, Rafael

David

TIA in the US was always as a prospective analysis method contrary to the UK where it was developed as a retrospective analysis method. Note that there are many definitions for TIA, some quite different to each other. It seems to me they were completely different animals sharing the same name.

Our system of law has a preference for the Contemporaneous Method which hinges on the principle that in order to determine the impact of delaying events, the status of the project must be established at the time those events occurred.

Two approaches are commonly used as part of this method: Time Impact Analysis, which looks at a particular point in time and utilizes a series of chronological time slices to evaluate major scheduling variations that occurred during the project, and Window Analysis, which examines the critical path between two points in time and assesses the delay as it occurs. Courts and boards hold that contemporaneous schedule updates should be considered in evaluating delay. The Contemporaneous Method is favored because it provides a baseline for measuring delay; the status of the project at the time a delay occurs; the impact of delaying events on remaining work; and insight into float, changes to critical path, and revisions to the plan to complete.

Please refer to the following link for a more detailed discussion.

http://www.cpmiteam.com/assets/CauseEffectVol1.pdf

Probably in posting #45 I should have said that what at time shocks me is how exculpatory clauses common in my jurisdiction might relieve the Owner from the Duty to Mitigate Doctrine, sorry I was not clear, is just that I find them so often that I forgot to mention in our construction contracts Duty to Mitigate Doctrine is usually one sided because of these clauses.

Things are changing for the good in some states, as for example Ohio, the problem in Puerto Rico is that our state/territory government and the US federal government abuse these clauses, those who make the laws.

http://www.ralaw.com/resources/documents/Construction%20News%202008.pdf

Best regard,
Rafael

David,

Good rant.

"Whilst it is an untested hypothesis, it is fair to assume that many of the projects that end in disputes do so as a result of the contract not having been administered properly during the currency of the project."

Darn right! But this is more of a theorem proved many times rather than "untested hypothesis", or let’s just call it a fair assertion. How much proof is needed that if projects aren’t planned and run properly the result is going to be a giant mess?
The parties cook the evil brew together and then, surprise, surprise, each bleats that the consequences are all the fault of anyone or anything except themselves.