When delays are alleged in a construction dispute, those charged with resolving the dispute must look for the most credible way to identify and quantify the delays. As an industry, little has been done to formally define appropriate schedule analysis methodology. However, that is changing.

MANGINELLI

In 2007, the Association for the Advancement of Cost Engineers International (AACEI) attempted to change the landscape with the publication of its Recommended Practice No. 29R-03, Forensic Schedule Analysis (FSA). While the FSA’s intent may have been noble, it has caused quite a stir among schedule analysts and the attorneys and clients who hire them.

Why all the fuss? The FSA’s stated purpose is “to provide a unifying technical reference for the forensic application of [the] critical path method (CPM) of scheduling.” This is a laudable goal. As schedule analysts often act as expert witnesses in legal proceedings, who wouldn’t agree that these practitioners should come together to define the proper approach to the analysis of delay?

Unfortunately, the FSA falls short of this challenging goal. Perhaps a better question for the industry is whether the goal of a uniform protocol is attainable. While it is true that the courts have helped guide delay experts, the current state of the practice is so undisciplined that it will take the coordinated effort of many willing participants to create something approaching “unity.”

One example of the industry’s lack of agreement concerns the basic terminology used to describe analysis methods.

The FSA uses its own unique taxonomy to describe eight methods of forensic schedule analysis. To highlight the gap between the industry’s terminology and the FSA’s taxonomy, note that five of the methods in the FSA list “windows analysis” as a common name. In this case, the FSA’s disciplined terminology describes five distinctly different methods, while the industry terminology loosely assigns the same name to all five. I don’t fault the FSA for trying to bring clarity to the terminology, but its attempt to redefine it may prove to be a huge challenge. Despite the fact that the FSA has been out in the industry for three years, I hear very little acknowledgement of this “new” terminology.

One concern with the FSA is that it gives equal credibility to the eight methods it describes. For example, the “modeled/subtractive/single simulation” method (MIP 3.8) describes a method known in the industry as the “collapsed as-built.” In this method, the analyst begins with a network that models the project as it was built and then removes selected “delays” to demonstrate their impact. This method has been discredited for several reasons, such as its disregard for the original and updated plan and its reliance on logic created after the fact. Yet, the FSA makes no distinction in terms of credibility and reliability between the collapsed as-built and a contemporaneous schedule analysis that uses the project schedules to identify critical path delays objectively.

Another concern is that the FSA characterizes the “modeled/additive/multiple base” method (MIP 3.7), also known as “time impact analysis,” as being a retrospective analysis method. The FSA defines “retrospective” as an analysis “performed after the delay event has occurred and the impacts are known.” Yet, in the AACEI’s Recommended Practice No. 52R-06, “Time Impact Analysis—As Applied in Construction,” this same method is properly described as a “forward-looking, prospective analysis technique,” stating expressly that it is not recommended for retrospective analysis.

Are these and other flaws enough to deem the FSA a failure? Not yet! AACEI currently is revising the document, and a draft will be available for industry comment in the near future. Time will tell if the current document’s flaws will be overcome.

For those who see the importance of establishing standards for forensic schedule analysis, the FSA will be their chance to have input. Perhaps the success of this document will demand persistent revision for some time. Regardless, this train has left the station. My advice to anyone who dislikes the FSA is to climb aboard and help guide the effort.

Bill Manginelli, a qualified expert witness, is president of Trauner Consulting Services. He can be reached at bill.manginelli@traunerconsulting.com and at 215-814-6400.