2008 SuperConference Presentation by Evans Barba PDF

XW
The 2008 Construction SuperConference

San Francisco, California
December 11 and 12, 2008
Session E03
Evans Barba’s Peer Review

of
AACE International
Recommended Practice No. 29R-03
FORENSIC SCHEDULE ANALYSIS
I didn’t get to review it before it was

published, so I thought I’d do it now.
XW Copyright ©2008 Barba Consulting, Inc.
1
XW
Session E03
Evans Barba’s Peer Review
of
AACE International
Recommended Practice No. 29R-03
FORENSIC SCHEDULE ANALYSIS
I didn’t get to review it before

it was published, so I thought
I’d do it now.
2
XW
Evans Barba is the Chairman and CEO of Barba Consulting, Inc.
He specializes in providing construction program management
and disputes resolution services on domestic and international
projects.
Mr. Barba has over 35 years experience in engineering design,

construction program and project management, contract
administration, critical path method scheduling, and claims and
disputes resolution.
He has directed hundreds of program management and disputes

resolution assignments across a broad range of infrastructure,
commercial, environmental, transportation, healthcare,
hospitality, power, detention, and industrial projects, as well as
complex development and acquisition programs.
He has testified as an expert witness regarding schedule delay

and disruption analysis, construction and project management
standards of practice, contract administration, time impact Evans M. Barba, PE, PSP
analysis, and concurrent delay, among others. Chairman and CEO
He has authored numerous works on Program Management and Barba Consulting, Inc.
Disputes Resolution topics and lectured internationally on these Five Greentree Centre
topics for over thirty years. 525 Route 73 South
Marlton, N.J. 08053
856-985-0500
Mr. Barba is a Registered Professional Engineer, a Registered
ebarba@barbaconsulting.com
Professional Planner, a Certified Planning and Scheduling
Professional, and a Certified Forensic Claims Consultant.
3
XW
Opening Remarks
The “Forensic Schedule Analysis RP” was developed for the stated
purpose of providing a “… unifying” technical reference for the
forensic application of critical path method (CPM) scheduling.
Based on my review of this purported “Recommended Practice” I

have concluded that notwithstanding its positive attributes, there are
a number of significant issues/problems that need to be resolved
prior to viewing or embracing this document as a bona fide Forensic
Schedule Analysis “Recommended Practice.”
Recognizing that AACE has published Practice No. 29R-03, labeling

it a “Recommended Practice” relative to the forensic application of
CPM scheduling, as a professional who has served and continues to
serve as a testifying expert relative to the performance of forensic
schedule analyses, I have reviewed this document with a critical
eye.
4
XW
Opening Remarks (cont’d)
It is with respect for the effort exerted by those involved in the

preparation of Practice No. 29R-03, and out of deep concern for
the manner in which this document, in its current state, can be
“used” and “misused,” “interpreted” and “misinterpreted” by those
involved in the forensic schedule analysis arena (including
practitioners and legal counsel who advocate on behalf of their
clients) that I offer my “Peer Review Critique” of Practice No 29R-03.
5
XW
History of Schedule Delay Analysis
CPM has been utilized as a forensic tool since the claims explosion
in “the seventies”
Numerous different approaches to analysis were developed
Hundreds of articles and publications have been written regarding

different approaches to analysis
Some books describe how to perform some of the analyses
Inconsistency in application and “naming” of various methods
Courts and Boards have found some approaches to analysis

acceptable and others not acceptable
There has not been any industry wide recognized set of guidelines
and principles
6
XW
The first set of guidelines…the SCL Protocol
In October 2002, the British Society of Construction Law published

its “Delay and Disruption Protocol”
The Protocol sets forth various recommendations regarding

schedule development, updating and the performance of Forensic
analyses
The Protocol recommends that TIA’s be used prospectively and,

forensically, retrospectively to evaluate delays and the right to an
EOT
The Protocol takes the position that forensic TIA’s should not take
advantage of actual, as-built knowledge, but should be based on
what the parties knew at the time of the “risk event(s)” in question.
7
XW
The Need For Guidelines
In the 2002/2003 timeframe, both AACE International and the

Project Management Institute College of Scheduling undertook
efforts to establish a set of forensic schedule analysis guidelines.
In June 2007 AACE International published the “Forensic Schedule

Analysis Recommended Practice No. 29R-03.”
The Project Management Institute College of Scheduling is nearing

completion of its efforts in this regard.
8
XW
The stated purpose of the RP “…is to provide a unifying technical

reference for the forensic application of critical path (CPM)
scheduling.”
9
XW
The RP defines the word “forensic” as:
1. Relating to, used in, or appropriate for courts of law or for public
discussion or argumentation;
2. Of, relating to, or used in debate or argument; rhetorical;
3. Relating to the use of science or technology in the investigation

and establishment of facts or evidence in a court of law: a forensic
laboratory.
10
XW
Overview Of The RP
Peer Review Group Composition
30
136
11
XW
The Intent Of The RP
Identify and quantify
Compensable delay
Excusable delay
Inexcusable delay
Schedule variances
Schedule Acceleration
Schedule disruption, and
Apportion delay between contracting parties
On the basis of these analyses, legal conclusions

concerning monetary damages flow.
12
XW
Overview of the RP - Structure
Contents
Organization and Scope
Source Validation
Method Implementation
Analysis Evaluation
Choosing a Method
13
XW
14
XW
15
XW
Review Comment No. 1
As it stands, Practice No. 29R-03 should not be entitled a

“Recommended Practice.” It is would be more accurate to
characterize and title this document:
“Forensic Schedule Analysis Guidelines: Definitions, principles,

and a description of the steps involved in performing various
methods of forensic schedule analysis.”
16
XW
Review Comment No. 1 (cont’d)
As it stands, this document should also include introductory

language similar to that AACE uses in its other “Practice” documents
it issues, which states:
“This Document is intended to provide certain guidelines, not to

establish a standard. This Document provides an overview of
principles and guidelines applicable to the performance of certain
methods of forensic analysis in current use, irrespective of whether
said methods have been deemed “acceptable” or “unacceptable” by
various Courts of Law.
17
XW
A publication that purports to be a “Recommended Practice” should

incorporate “legal Input” in the context of discussing what has been
and is currently deemed acceptable and unacceptable by Courts and
Boards relative to the performance of forensic schedule analyses.
Such a publication should also periodically issue updates regarding
significant developments in the Courts and Boards relative to the use
of these analyses.
AACE’s Practice NO.29R-03 does not include any discussion

relative to the methods of analysis that have been deemed acceptable
and unacceptable by Courts of Law.
18
XW

identify the methods of analysis set forth therein that have been
deemed acceptable by Courts and those that have been
rejected/deemed unacceptable by Courts.
AACE’s Practice NO.29R-03 does not include any discussion

whatsoever relative to whether the methods of analysis discussed
therein have been deemed acceptable or unacceptable by Courts of
Law.
19
XW

“rank” the various methods of analysis discussed therein on the
basis of the accuracy, quality and availability of source
documentation and information available to an analyst undertaking
the performance of a forensic schedule analysis.
AACE’s Practice No. 29R-03 does not rank the various methods of
analysis discussed therein.
20
XW
While Practice No. 29R-03 carries the title “Recommended

Practice,” it does not address any of the aforementioned matters.
As result, Practice No. 29R-03 should not be “entitled” or “viewed"
as a bona fide Forensic Schedule Analysis “Recommended
Practice” manual.
As discussed hereinafter, as it stands, Practice No.29R-03 is

misleading and can be used as (i) a “weapon” to undermine the
credibility of methods of analysis that have historically been deemed
acceptable by Courts and Boards, and (ii) a “vehicle” “resurrect”
and give credence to other methods of analysis that have been
deemed unacceptable by Courts and Boards.
21
XW
22
XW
DELETE
23
XW
Organization and Scope
24
XW
25
XW
26
XW
27
XW
I take exception to the statement “… validation for forensic purposes

may be fundamentally different than validation for purposes of
project controls. What may be adequate for project controls may not
be adequate for forensic scheduling, and vice versa.
I likewise take exception to the statement that the initial focus in

validating a baseline schedule is “… in assuring the functional utility
of the baseline data as opposed to assuring the reasonableness of
the information represented by the data or optimization of the
schedule logic. So for example, the validation of activity durations
against quantity estimates is probably not something that would be
performed as part of this protocol.”
28
XW
With respect to the statement:
“The test is, if it is possible to build the project in the manner indicated
in the schedule and still be in compliance with the contract, then do
not make any subjective changes to improve it or make it more
reasonable”
I agree that “subjective” changes should not be made to a

contractor’s baseline schedule. However, to the extent the
contractor's baseline schedule has not been approved, is not in
compliance with the contract, has objective logic errors and/or
durations that are unreasonable, it is appropriate to “correct” the
baseline so as to establish a “reasonable baseline schedule” for
purposes of analysis. A review of case law reveals the necessity to
establish a “reasonable baseline schedule” when performing a
forensic schedule analysis. Practice No. 29R-03 does not appear to
support this position.
29
XW
30
XW
The Baseline Schedule: What do you do if……
The Contractor's Baseline Schedule was not approved by the
Owner due to the fact that it did not comply with the express
requirements of the Contract Documents.
Contemporaneously, the Owner had advised the contractor of

issues of non-compliance that were never addressed completely by
the contractor; yet the schedule was “updated” monthly and was
used to generate the contractor’s monthly payment applications.
A review of the Contractor’s Baseline Schedule reveals objective

mistakes in logic and a lack of relationships between many
activities that bring into question the “reasonableness” of the
schedule.
31
XW
The Baseline Schedule (cont’d): What do you do if……
If making corrections to the Contractor’s Baseline Schedule to bring

it into compliance with Contract requirements results in extending
the Project duration and/or altering the critical path from that in the
Contractor’s “non-compliant schedule,” what do you do?
If a review of the Contractor’s bid information in conjunction with

schedule resource information reveals that certain durations in the
schedule are not “reasonable,” what do you do?
Do you perform your analysis using the baseline schedule as

originally prepared by the Contractor?.... use the “corrected”
contractually compliant schedule as the baseline schedule? ….or
do something else, such as perform multiple analyses?
32
XW
Review Comment No.3
Practice No. 29R-03 should include a discussion of the above

matters.
In a dispute situation, the parties should consider working together

to agree on a Baseline Schedule for purposes of analysis by their
respective “Experts.”
33
XW
34
XW
35
XW
If the source of your as-built data comes from monthly schedule

updates, or the “last update” on the project (which in many
Government Contracts is referred to as the “As-Built Schedule”), it is
important to determine whether the updates in question were
accepted, rejected, or challenged by the Owner.
Experience indicates that actual start and actual finish dates in

updates that were contemporaneously determined, submitted, and
accepted by an Owner, are typically acknowledged as being correct
by Trier's of Fact .… regardless of what the daily reports might
otherwise suggest.
36
XW
To the extent that given dates are not supported by the daily reports,
do not simply assume the dates are incorrect … explore the matter
in discovery and “nail the dates down.”
As-Built Schedule data is something the parties should be able to

mutually agree to. In the interest of narrowing the issues to be
addressed in a given dispute, the parties should consider having
their respective experts agree on an As-Built Schedule.
The “winners” in such a situation would be the parties to the dispute,

their respective counsel, as well as the Trier of Fact.
37
XW
38
XW
I disagree with the recommendation that “… the start of an activity

“…be considered the first date associated with a series of
substantive work days on the activity.”
Adhering to this recommendation could result in an analyst “missing”

the occurrence of a delay in the work, which is potentially “solely
critical” or “concurrent” with another delay.
A demonstrative graphic depicting this situation follows.
39
XW
As-Planned Critical Path
0 10 20 30 40
MOBILIZATION EXCAVATION FRP SLAB FRP WALLS

10 10 10 10
Data
Date
Note: Planned relationships

are “Finish to Start” (F/S)
As-Built Schedule
Differing Condition Work
19 26 28
MOBILIZATION EXCAVATION
8
10 2
FRP SLAB FRP SLAB

10
16 17 26
FRP WALLS
10
32 41
40
XW
41
XW
42
XW
Comments relative to the use of schedule updates in performing a
forensic analysis are set forth hereinafter.
43
XW
44
XW
45
XW
46
XW
Page numbers 33 and 34 identify nine steps related to the application of
this methodology
47
XW
Factors to Consider.
Misleading & Incorrect
Subjective
Irrelevant
48
XW
Review Comment No.6
While this method discusses basics relative to performing an as-

planned vs. as-built analysis, performing such an analysis using a
“single time period approach” should be avoided.
Analyses performed in such a manner oftentimes result in the

establishment of an as-built critical path some have referred to as
the “fuzzy” as-built critical path determination, which is based almost
exclusively on an Expert’s “opinion” and “feeling” as to where the as-
built critical path ran on the project.
49
XW
50
XW
As-Planned Critical Path
Overall
Delay
As-Built Critical Path
I II III IV
51
XW
52
XW
53
XW
Factors to Consider
??? Confusing statement
Incorrect & Misleading
Subjective & Misleading
54
XW
I disagree with the statement that this method is not suitable to
projects of extended duration, or where the sequence of the work
varied from that originally planned.
I disagree with the statement that this method is not applicable to

projects built in a manner significantly different than planned.
I disagree with the statement that the use of multiple windows of

time provides the “illusion” of greater accuracy than 3.1 where none
exists.
Properly implemented this method of analysis is inherently more

accurate and substantially increases the overall accuracy and
credibility of the analysis.
55
XW
Contrary to the statements included under Section L. 2 of Practice No.

29R-03, “ Weaknesses and disadvantages,” As-Planned vs. As-Built
analysis is a recognized method of analysis that has been deemed
acceptable by Courts and Boards of Contract Appeals.
The statements in Practice No. 29R-03 to the effect that as-planned

vs. as-built analyses are not suitable for projects of extended duration,
etc., should be eliminated from the document.
The misleading and erroneous statement included under the

56
XW
57
XW
[ Factors to consider ]
modeled analysis. an
Updates depict projected
58
XW
Barba Comments
The implementation of this method relies on the validity of the

contemporaneous schedule updates. What if, however, …
The Contractor’s updates were not approved/accepted by the Owner

due to the fact that they failed to comply with the express
requirements of the Contract Documents, or
The Contractor unilaterally added activities to the schedule, revised

schedule logic, and changed activity durations in the schedule
updates without providing any explanation or justification for the
changes, or
59
XW
Barba Comments (cont’d)
During construction the Contractor asserted that the updates did not
represent its plan for the work due to the fact that the Owner had
allegedly failed to timely grant extensions of time for changes and
delays that occurred in the work. What do you do?
Do you “correct” the projected plan of performance in the updates,

or use them “as is.”
What if the “corrections” alter the projected critical path or extend the
projected date of completion of the Work?
These are extremely significant issues that go to the heart of being

able to use MIP Nos. 3.3, 3.4. Practice No. 29R-03 does not
discuss these matters.
60
XW
Schedule updates contain information to the “left” and “right” of the
data date.
While it may be that the “projected plan” information in given

schedule updates may not be suitable for purposes of analysis, the
as-built data behind the data date is typically of significant value …..
especially as relates to the “progress achieved/percentage of
completion” data related to work performed.
In conjunction with a “Reasonable Baseline Schedule,” this

“progress achieved” data can be used to perform a “chronological
and cumulative” forensic delay analysis, which for discussion
purposes I will refer to as a “Contemporaneous Approach” to
analysis.
61
XW
“Contemporaneous Approach”
(also referred to as a “Time Impact Analysis” or “Windows Analysis”)
The “Contemporaneous Approach” is a chronological and

cumulative approach, which marches through time measuring the
impact of critical delays upon the performance of the work as of
various “milestone” points in time.
Milestones can include the commencement or completion of given

activities, such as excavation, foundation, superstructure, execution
of a subcontract, etc.
The analysis is fundamentally a comparison between what was

originally planned to happen on a Project and what actually
happened.
62
XW
“Contemporaneous Approach” (cont’d)
The analysis is geared towards determining the status of completion

of a Project both prior to and after the occurrence of delays or
changes in the Work, and measuring the effect of the changed work
or delay on the as-built critical path and the projected date of project
completion.
The performance of the analysis entails utilizing an “ As-Planned

(Baseline) Schedule,” “As-Built Schedule Performance Information”
and a series of “Statused and Updated Schedules.”
The analysis facilitates the identification of changes in the projected

critical path, as well as the identification of the as-built critical path.
Reference SAE/Americon-Mid Atlantic, Inc. v. General Services Admin, GSBCA

No.12,294 et al., 98-2 B.C.A.
63
0 5 10 15 20 25 30 35 40 45 50 55 60 65 70 75 80 85 90 95 100 105 110 115
XW
NTP Substantial
60 Completion
As-Planned (Baseline) Schedule
TF I Overall Delay
TF II
TF III
TF IV
TF V
TF VI
115
TF VII
Actual
Substantial
Completion
As-Built Schedule XW Copyright ©2008 Barba Consulting, Inc.
64
XW
65
0 5 10 15 20 25 30 35 40 45 50 55 60 65 70 75 80 85 90 95 100 105 110 115
As-Planned Schedule
NTP Update #1 SC
“A” “B” “C”

20 20 20
10 Day
Projected
10 Completion
“Statused” Delay
Projected Plan
NTP SC
“A” “A” “A” “B” “C”

10 20 20
As-Built
10 Day
10 Anticipated
Update #1 “Gain”
“Re-sequenced
and “A” “B” “B” FF 5
Updated” 10 10 10 Projected
SC
On-Time
“C” Completion
20
Copyright ©2008 Barba Consulting, Inc.
66
320 340 360 380 400 420 435
Update #17 Update #18
“A”
“B”
“C”
Updated
Using
Progress “D”
Override
“E”
Projected
“On-Time” “True”
“F” Completion Projected
Completion
Date
Anybody’s
Updated Update #18 Guess
Using “A” “B” “C” “D” “E” “F”
Retained
Logic
67
Contemporaneous, Split Method
Baseline Delay
Time
Frame I
Gain
Update #1 Delay
TF II
Gain
Update #2 Delay
TF III
Gain
Update #3 Delay
Project
TF IV Complete
Overall Delay
68
XW
Similar to MIP 3.3, to the extent the “projected plan” information in

the project schedule updates may not be suitable for purposes of
performing a “split-type” analysis, the as-built data behind the data
date may still be of significant value ….. especially as relates to the
“progress achieved/percentage of completion” data related to work
performed.
As previously stated, this data can be used in performing a

chronological and cumulative forensic schedule delay analysis.
69
XW
70
XW
Too seemingly “contrived.”
Would not include this approach in a “Recommended Practice.”
71
XW
72
XW
[ Factors to consider ]
Is a method that does not consider

what actually happened on the project.
73
XW
This method of analysis should not be included in any forensic

schedule analysis “Recommended Practice.”
The manner in which this method is presented in Practice No. 29R-

03 elevates it to a level of apparent “credibility,” which represents a
giant step backwards in the application of CPM scheduling in the
performance of a forensic schedule analysis.
74
XW
Practice No. 29R-03 should clarify the fundamental difference
between a bona fide Prospective “Time Impact Analysis,” which is
used to estimate the effect a given change or delay may have on
the performance of the work, in advance of performance of the
changed work or occurrence of a delay, and an Impacted As-
Planned Analysis, which is a theoretical/modeled “after-the-fact”
method of analysis, which purports to establish the duration of delay
and number of days of time extension due a contractor based on
inserting an “as-built fragnet” into the schedule in effect at the time
the change was issued or delay occurred.”
In this regard, a bona fide Prospective “Time Impact Analysis”

involves inserting an “estimated fragnet” comprised of activities and
logic that represent the contactors best estimate of future events
related to the performance of the changed work or occurrence of a
delay into the schedule in effect at the time the change was issued
or delay occurred – NOT an “as-built” fragnet.
75
XW
In an effort to legitimatize the use of the Impacted As-Planned

Method and circumvent the objections to said analyses that have
been levied by industry practitioners, Courts and Boards of Contract
Appeals, various analysts “describe/label” their Impacted As-
Planned Analyses: “Retrospective Time Impact Analysis:” or
“Schedule Time Impact Analysis.”
This is a “wolf in sheep's clothing” approach to analysis.
Assigning the label/name “Time Impact Analysis” to the performance

of an Impacted As-Planned Analysis does no change the fact that
such analyses are and have been deemed fatally flawed in terms of
attempting to establish a contractors right to an extension of time.
76
XW
The “Impacted As-Planned Approach” is an inherently theoretical
analysis, which purports to establish what would, could, should or
might have happened based on inserting an as-built fragnet into the
projected plan of performance of the schedule update in effect at the
time the change was issued or the delay initiated/occurred.
The result of such an analysis is a theoretical/hypothetical projection

of the point in time to which the project completion date “would have
been pushed” had the Work on the Project in question actually been
performed “as projected” in the “Impacted schedule.”
The fatal flaw in such an analysis is that it fails to take into

consideration the actual, as-built performance of all of the work, fails
to take into account all excusable delays, contractor problems and
delays, and does not establish the as-built critical path to project
completion.
77
XW
Just because you can do it, doesn’t mean you should do it!
This method of analysis has been widely rejected by Courts and is

generally recognized throughout the Construction Consulting
Profession as a fatally flawed method of forensic analysis (see the
following page of this presentation).
78
XW
Impacted As-Planned Method
(Quoted from “Construction Scheduling : Preparation, Liability, and
Claims,” Wickwire. Driscoll, Hurlbut and Hillman)
“This approach, which purports to present a fair picture of

responsibility for owner delays on the project by impacting the
original CPM on the project solely with owner delays encountered
during performance, suffers from one fatal flaw: it ignores what
actually happened on the project, including excusable delays and
delays by the contractor. Actual performance by all parties must be
considered.”
“… appellants fragnet analyses did not reflect the actual start and
finish dates of the impacting and impacted activities (finding 40).
Hence those analyses are not sufficiently credible to show the
duration of delays. See Youngdale & Sons Construction Co. v.
United States, 27 Fed. Cl. 516, 552-53 (1993).”
79
XW
How Practice No. 29-03 can be misused and misinterpreted
Notwithstanding all of the above, “disturbingly,” Practice No. 29R-

03 can be read to support the proposition that AACE views the
Impacted As-Planned Method of analysis as an “accepted” method
of analysis that can be used prospectively or retrospectively to
support and establish a contractors right to an extension of time.
In this regard, under Section 1.1, “Introduction,” of Practice 29R-03

the following is stated:
“It is hoped that the implementation of the recommended Practice

will result in minimizing disagreements over technical
implementation of accepted techniques and allow the providers and
consumers of these services to concentrate…” (Emphasis added)
80
XW
Thereafter, under Section 3.6, A, the following is stated:
“3.6 can be used prospectively and retrospectively. Prospectively it

can be used to forecast future impacts. Retrospectively, it relies on the
forward looking calculations to the right of the date date.” (Emphasis
added).
Not only does the above statement appear to “endorse” the use of
the “Impacted As-Planned Method” in performing a retrospective
forensic analysis, but by stating that this method can also be used
“prospectively,” AACE has equated the terminology “Impacted As-
Planned” with the performance of a bona fide Prospective “Time
Impact Analysis,” which serves to further confuse and foster the
notion that the Impacted As-Planned Method is an “accepted,” valid
method of Forensic schedule analysis.
This is a serious issue which AACE needs to address and

rectify as quickly as possible.
81
XW
82
XW
Same comments as those related to the “Single Base” application of

the “Impacted As-Planned Method.”
83
XW
84
XW
[ Factors to Consider ]
Is
Irrelevant
85
XW
This is also a theoretical type of analysis, which in my opinion

should not be included in a “Recommended Practice”
Comments similar to those related to use of the “Impacted As-

Planned Method”
86
XW
Barba Suggested Ranking of Methods
Discussed in Practice No. 29R-03
MIP 3.4 - Valid approach if updates are “valid”… if the “projected

portions” of the updates are not valid, use “Contemporaneous
Approach.”
MIP 3.3 - Valid approach if updates are “valid”… if the “projected

portions” of the updates are not valid, use “Contemporaneous
Approach.”
MIP 3.2 - Valid approach to the extent there are no updates or the
“projected planned portions of the available updates are not “valid.”
MIP 3.1 - Would only use MIP 3.2.

________________________________________________________
MIP 3.5 - Too seemingly “contrived.”
MIP 3.6, 3.7 and 3.8 - As discussed, Not recommended for use
87
XW
Summary Findings and Conclusions
Practice No. 29R-03 represents a step forward in terms of

attempting to establish a unifying technical reference for the forensic
application of critical path (CPM) scheduling. However, it has not
yet achieved that goal.
In its current state, the “RP” should not be viewed as a

“Recommended Practice” or “standard” relative to the performance
of Forensic Schedule Analyses; rather it should be viewed as a work
in progress, whose ultimate goal is establish a set of guidelines that
will serve as a technical reference for the forensic application of
critical path scheduling.
88
XW
Summary Findings and Conclusions (cont’d)
As discussed in this presentation, notwithstanding its positive

attributes, there are a number of significant issues/problems, which
I believe AACE should move quickly to address and resolve.
As it stands, Practice No. 29R-03 should not be entitled a

“Recommended Practice.” It would be more accurate to characterize
and title this document:
“Forensic Schedule Analysis Guidelines: Definitions, principles,

and a description of the steps involved in performing various
methods of forensic schedule analysis.”
89
XW
As it stands, this document should also include introductory

language similar to that AACE uses in its other “Practice” documents
it issues, which states:
“This Document is intended to provide certain guidelines, not to

establish a standard. This Document provides an overview of
principles and guidelines applicable to the performance of certain
methods of forensic analysis in current use, irrespective of whether
said methods have been deemed “acceptable” or “unacceptable” by
various Courts of Law.
90
XW
While Practice No. 29R-03 carries the title “Recommended

Practice,” it does not “rank” the methods of analysis discussed
therein, nor does it provide any “legal input” or guidance in terms of
identifying whether the methods of analysis discussed therein have
been deemed “acceptable” or “unacceptable” by Courts of Law. Due
to these factors alone, Practice No. 29R-03 should not be “entitled”
or “viewed" as a bona fide Forensic Schedule Analysis
“Recommended Practice” manual.
91
XW
It would be more appropriate and accurate to describe Practice No.

29R-03 as a “Manual” that discusses (i) basic principles and
guidelines relative to the performance of forensic schedule analyses,
and (ii) suggested steps to be utilized in implementing the various
methods of analysis discussed therein (recognizing that there are
and may well be other methods of analysis used by others that are
not discussed in the Manual).
92
XW
In addition, given AACE’s decision not to “rank” or include any “legal

input” in Practice No. 29R-03 relative to whether the methods of
analysis discussed therein have deemed acceptable or
unacceptable by Courts, it should be made clear that nothing in the
Manual should be viewed as an endorsement or condemnation of
the use of any one of the methods of analysis discussed therein
over another. In this regard, the “Advantages and Disadvantages”
sections set forth under each of the “MIP” sections should be re-
named: “Factors to Consider.” As it stands, the wording under the
various section headings “Advantages and Disadvantages,” are
extremely misleading, in some instances incorrect, and in any event
are subject to being misinterpreted.
93
XW
As it stands, Practice No.29R-03 is misleading and can be used as

(i) a “weapon” to undermine the credibility of methods of analysis
that have historically been deemed acceptable by Courts and
Boards, and (ii) a “vehicle” “resurrect” and give credence to other
methods of analysis that have been deemed unacceptable by
Courts and Boards.
94
XW
In closing, I would ask that if you share any of the concerns raised
in this presentation that you immediately let your voices be heard.
Contact AACE and let them know what you think.
WHAT YOU THINK MATTERS!
I intend to contact AACE regarding all of the above.
To the extent you agree or disagree with any of the above, I would
welcome hearing from you ………… I can be reached at
ebarba@barbaconsulting.com.
95
XW
THE END
Thank you for attending this Session
and Have a Great Day!
96

2008 SuperConference Presentation by Evans Barba PDF

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

2008 SuperConference Presentation by Evans Barba PDF

Uploaded by

Copyright:

Available Formats

XW

The 2008 Construction SuperConference

Evans Barba’s Peer Review

I didn’t get to review it before it was

I didn’t get to review it before

Mr. Barba has over 35 years experience in engineering design,

He has directed hundreds of program management and disputes

He has testified as an expert witness regarding schedule delay

 Based on my review of this purported “Recommended Practice” I

 Recognizing that AACE has published Practice No. 29R-03, labeling

 It is with respect for the effort exerted by those involved in the

 Numerous different approaches to analysis were developed

 Hundreds of articles and publications have been written regarding

 Some books describe how to perform some of the analyses

 Inconsistency in application and “naming” of various methods

 Courts and Boards have found some approaches to analysis

 In October 2002, the British Society of Construction Law published

 The Protocol sets forth various recommendations regarding

 The Protocol recommends that TIA’s be used prospectively and,

 In the 2002/2003 timeframe, both AACE International and the

 In June 2007 AACE International published the “Forensic Schedule

 The Project Management Institute College of Scheduling is nearing

The stated purpose of the RP “…is to provide a unifying technical

The RP defines the word “forensic” as:

2. Of, relating to, or used in debate or argument; rhetorical;

3. Relating to the use of science or technology in the investigation

 On the basis of these analyses, legal conclusions

 Organization and Scope

 As it stands, Practice No. 29R-03 should not be entitled a

“Forensic Schedule Analysis Guidelines: Definitions, principles,

 As it stands, this document should also include introductory

“This Document is intended to provide certain guidelines, not to

 A publication that purports to be a “Recommended Practice” should

 AACE’s Practice NO.29R-03 does not include any discussion

 A publication that purports to be a “Recommended Practice” should

 AACE’s Practice NO.29R-03 does not include any discussion

 A publication that purports to be a “Recommended Practice” should

 While Practice No. 29R-03 carries the title “Recommended

 As discussed hereinafter, as it stands, Practice No.29R-03 is

 I take exception to the statement “… validation for forensic purposes

 I likewise take exception to the statement that the initial focus in

 I agree that “subjective” changes should not be made to a

 Contemporaneously, the Owner had advised the contractor of

 A review of the Contractor’s Baseline Schedule reveals objective

 If making corrections to the Contractor’s Baseline Schedule to bring

 If a review of the Contractor’s bid information in conjunction with

 Do you perform your analysis using the baseline schedule as

 Practice No. 29R-03 should include a discussion of the above

 In a dispute situation, the parties should consider working together

 If the source of your as-built data comes from monthly schedule

 Experience indicates that actual start and actual finish dates in

 As-Built Schedule data is something the parties should be able to

 The “winners” in such a situation would be the parties to the dispute,

 I disagree with the recommendation that “… the start of an activity

 Adhering to this recommendation could result in an analyst “missing”

 A demonstrative graphic depicting this situation follows.

MOBILIZATION EXCAVATION FRP SLAB FRP WALLS

Note: Planned relationships

FRP SLAB FRP SLAB

Misleading & Incorrect

 While this method discusses basics relative to performing an as-

 Analyses performed in such a manner oftentimes result in the

As-Planned Critical Path

Based on my review of this purported “Recommended Practice” I

Recognizing that AACE has published Practice No. 29R-03, labeling

It is with respect for the effort exerted by those involved in the

Numerous different approaches to analysis were developed

Hundreds of articles and publications have been written regarding

Some books describe how to perform some of the analyses

Inconsistency in application and “naming” of various methods

Courts and Boards have found some approaches to analysis

In October 2002, the British Society of Construction Law published

The Protocol sets forth various recommendations regarding

The Protocol recommends that TIA’s be used prospectively and,

In the 2002/2003 timeframe, both AACE International and the

In June 2007 AACE International published the “Forensic Schedule

The Project Management Institute College of Scheduling is nearing

On the basis of these analyses, legal conclusions

Organization and Scope

As it stands, Practice No. 29R-03 should not be entitled a

As it stands, this document should also include introductory

A publication that purports to be a “Recommended Practice” should

AACE’s Practice NO.29R-03 does not include any discussion

A publication that purports to be a “Recommended Practice” should

AACE’s Practice NO.29R-03 does not include any discussion

A publication that purports to be a “Recommended Practice” should

While Practice No. 29R-03 carries the title “Recommended

As discussed hereinafter, as it stands, Practice No.29R-03 is

I take exception to the statement “… validation for forensic purposes

I likewise take exception to the statement that the initial focus in

I agree that “subjective” changes should not be made to a

Contemporaneously, the Owner had advised the contractor of

A review of the Contractor’s Baseline Schedule reveals objective

If making corrections to the Contractor’s Baseline Schedule to bring

If a review of the Contractor’s bid information in conjunction with

Do you perform your analysis using the baseline schedule as

Practice No. 29R-03 should include a discussion of the above

In a dispute situation, the parties should consider working together

If the source of your as-built data comes from monthly schedule

Experience indicates that actual start and actual finish dates in

As-Built Schedule data is something the parties should be able to

The “winners” in such a situation would be the parties to the dispute,

I disagree with the recommendation that “… the start of an activity

Adhering to this recommendation could result in an analyst “missing”

A demonstrative graphic depicting this situation follows.

While this method discusses basics relative to performing an as-

Analyses performed in such a manner oftentimes result in the

I disagree with the statement that this method is not applicable to

I disagree with the statement that the use of multiple windows of

Properly implemented this method of analysis is inherently more

Contrary to the statements included under Section L. 2 of Practice No.

The statements in Practice No. 29R-03 to the effect that as-planned

The misleading and erroneous statement included under the

The implementation of this method relies on the validity of the

The Contractor’s updates were not approved/accepted by the Owner

The Contractor unilaterally added activities to the schedule, revised

Do you “correct” the projected plan of performance in the updates,

These are extremely significant issues that go to the heart of being

While it may be that the “projected plan” information in given

In conjunction with a “Reasonable Baseline Schedule,” this

The “Contemporaneous Approach” is a chronological and

Milestones can include the commencement or completion of given

The analysis is fundamentally a comparison between what was

The analysis is geared towards determining the status of completion

The performance of the analysis entails utilizing an “ As-Planned

The analysis facilitates the identification of changes in the projected

Reference SAE/Americon-Mid Atlantic, Inc. v. General Services Admin, GSBCA

Similar to MIP 3.3, to the extent the “projected plan” information in

As previously stated, this data can be used in performing a

Too seemingly “contrived.”

Would not include this approach in a “Recommended Practice.”

This method of analysis should not be included in any forensic

The manner in which this method is presented in Practice No. 29R-

In this regard, a bona fide Prospective “Time Impact Analysis”

In an effort to legitimatize the use of the Impacted As-Planned

This is a “wolf in sheep's clothing” approach to analysis.

Assigning the label/name “Time Impact Analysis” to the performance

The result of such an analysis is a theoretical/hypothetical projection

The fatal flaw in such an analysis is that it fails to take into

This method of analysis has been widely rejected by Courts and is

“This approach, which purports to present a fair picture of

Notwithstanding all of the above, “disturbingly,” Practice No. 29R-

In this regard, under Section 1.1, “Introduction,” of Practice 29R-03