How to Evaluate

Impacts on Schedule
 Overview

• Definitions
• Methods of Delay Evaluation
• Best Practices

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Classification of Project Delays
(Risk Point of View)

•Non-excusable

•Excusable
–Compensable
–Non-compensable

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 Non-excusable Delays
• Contractor culpable delays impacting
the schedule

• Contractor not entitled to either time

extension or compensation
• Examples:
– Late Submittals
– Late Material Delivery
– Insufficient Manpower
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Excusable Non-compensable
Delays
• Uncontrollable events such as weather,
strikes, etc. sometimes referred to as
“Force Majeure”
• Contractor is eligible for time extension
• Contractor not eligible for extended
“General Conditions” costs
• Contractor has to meet burden of proof

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Excusable Compensable
Delays
• Owner or owner’s agent problems result
in schedule impacts
• Contractor eligible for time extension
• Contractor eligible for extended
“General Conditions” cost
• Contractor has to meet burden of proof

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Concurrent Delays
Definition:
• “Concurrent Delay” is experienced on a
construction project when two or more
separate delay events occur during the same
time period.
• Multiple causes to a critical path delay with
both contract parties involved. In the
absence of one party’s cause, the other
party’s cause will govern.
• The schedule has more than one critical path
with a separate delay affecting each at the
same time (very rare)
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Concurrent Delays
• Significance
Determines compensability
• Apportionment:
Where both parties contribute to the
delay neither can recover damages
unless there is clear evidence by which
we can apportion the delay and the
expense attributable to each party
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Concurrent Delays
Elements:
• Two or more delays occur during the same time period
• Both delays impact the critical path
• Delays may be caused by either or both parties, or
unforeseen events
• In the absence of one delay event, the other delay
event will govern.
Governing Rules:
• The float belongs to the project
• Both parties have the right to use any additional float
• The Critical Path with respect to a specific milestone is
the path with the least total float
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Concurrent Delays:

• Concurrent delay by owner and contractor is

excusable but not compensable
Contractor Delay: 5 days lost in
fabrication
✓ Delay events occur
during the same time
period
✓ They impacted the critical
path

Critical Path Activity ✓ In the absence of one

delay event, the other
delay event will govern.
Owner Delay: 5 days lost in reviewing the installation procedure

Concurrent cause of Critical Path Delay of 5 Days

Result:
5 excusable (non-compensable) days to contractor

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 Concurrent Delays:
• Concurrent delay by contractor and an uncontrollable
event is excusable but not compensable
Critical Path Activity
✓ Delay events occur
during the same time
Contractor period
5 Days of CP Slippage
Delay: 5
days lost ✓ They impacted the critical
due to path
productivity Critical Path Activity
issues ✓ In the absence of one
delay event, the other
3 days of Rain delay event will govern.

Concurrent cause of Critical Path Delay of 3 Days

Result:
3 excusable (non-compensable) days
2 non-excusable days

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 Concurrent Delays:
•Concurrent delay by owner and an uncontrollable event
is excusable but not compensable
Critical Path Activity
✓ Delay events occur
during the same time
period
Owner Delay: 15 Days of CP Slippage
15 days lost ✓ They impacted the critical
Critical Path Activity path
resolving a
design issue
✓ In the absence of one
10 days of Rain delay event, the other
delay event will govern.

Concurrent cause of Critical Path Delay of 10 Days

Result:
10 excusable non-compensable days
5 excusable compensable days

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 Example: Delays Concurrent
Owner Delay Impacting
Framing Activity (12 days)
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WF L1 WF L2
5
TF=5 days
Submittal/Fabrication L2 ✓ Delay events occur
during the same time
7 period
Contractor Delay Impacting
Fabrication (7 days)
✓ They impacted the critical
path

WF L1 7 WF L2 ✓ In the absence of one

delay event, the other
5 delay event will govern.
Submittal/Fabrication L2

Result:
7 days of Concurrent Delay
(Excusable, Non-compensable)

5 7
Non-critical Delay
7 CP Delay
WF L1 WF L2
5 7

Submittal/Fabrication L2

7
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 Example: Delays not Concurrent
Owner Delay Impacting
Foundation Activity
15 ✓ Delay events occur
TF=5 during the same time
Foundation Steel Erection
period

Steel Fabrication × They impacted the critical

Contractor Delay path
7 Impacting Steel
Fabrication × In the absence of one
delay event, the other
Delay not during same time frame: delay event will govern.
1st CP Slippage
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5
10 Foundation Steel Erection

Steel Fabrication
Contractor has the right to
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Added Float use the added float
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Delay during same time frame: 2nd CP Slippage

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10 5 Foundation Steel Erection Result:

Total Critical Path Slippage of 10 days is
Steel Compensable.
Fabrication 7 3
Added Float
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Delay Mitigation
• Contractor has an implied obligation to
accelerate to mitigate delays, when
possible.
• Further or additional acceleration might
be possible, but might also have a price
tag.
• The cost of further or additional
mitigation needs to be evaluated
against the cost of time extension.

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Recovery Schedules &
Proposals
• Requesting a Recovery Proposal to
recover from an Owner-caused delay
limits the Contractor’s right to the added
Float in non critical paths created by the
owner-caused delay.
• Unrealistic Recovery Schedules can be
used to hide Contractor delays and
delay concurrency.

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 Methodology for Delay
Quantification
• Total-Time Schedule Approach

• Adjusted As-Planned Schedule Approach

• Adjusted As-Built Schedule Approach

• Contemporaneous Time Frame Analysis

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Total-Time Approach

Owner-
As-planned Duration caused
Project
Delay

As-built Duration

To use this approach, the Contractor needs to show:

(1) As-planned schedule reasonable and constructible
(2) It manned the job as planned and deployed the resources prudently
(3) It did not cause any delays
(4) There is no other reasonable way to quantify the delay

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 Adjusted As-Planned Approach
Owner-
As-planned caused
Project
Delay

Owner-
caused
Delay
Adjusted
As-planned
Owner-
caused
Delay

As-planned duration and logic unchanged (Too hypothetical)

Baseline Critical Path is the basis for the analysis
Ignores Concurrency of delays

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 Collapsed As-Built “But For”
Approach
As-planned

Owner Delay
As-Built
Contractor Delay

Owner-caused
Collapsed Project Delay
As-built Contractor Delay

As-Built schedule is used as the base for the analysis

Ignores the timing of the delay (what was the critical path at the time of delay?)
Does not evaluate concurrent delays

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 Contemporaneous Approach
2 Delays

As-planned

Contractor-caused
Contractor-
Update Project Delay
caused
Date
Delay
1st Delay

Owner-caused
Owner-
Contractor- Project Delay
caused
caused Delay
Delay
2nd Delay

Update
Date
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 Contemporaneous Approach
Same but Owner Delay Happened First

As-planned

Owner-caused
Owner-
Update Project Delay
caused
Date Delay
1st Delay

Owner-
caused
Delay No Project
Delay
2nd Delay

Contractor-
Update caused
Date Delay

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Contemporaneous Approach
“TIA Event Update Analysis”
“ Fragnet Analysis”
• The importance of timing: When the delay-causing
events occurred
• What was the Critical Path when the delay-causing
events occurred
• Using current schedule updates as the basis for
analysis
• Takes into account the dynamic nature of the
schedule
• Concurrency and therefore compensability of delays
can be evaluated.
• The most preferred method

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LAUSD Scheduling Specification
• Calls for contemporaneous Fragnet
approach
• Requests supporting elements:
Baseline schedule, weekly and monthly
schedule updates
• Baseline and monthly schedule
submittals reviewed/accepted for quality

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LAUSD Scheduling Specification;
Steps
• Contractor recognizes an impact
• Contractor notifies District of actual or
potential impact in a timely manner
• Pre-delay schedule prepared by Contractor
• Pre-delay schedule approved by District
• Delay Fragnet prepared by Contractor
• Delay Fragnet approved by District
• Net impact calculated/negotiated

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Projected Delays
• Projected delays are delays or portions
of a delay that extend into the future
• They are time estimates
• They affect the Critical Path
• LAUSD Specifications calls for the
approval of projected delays (Fragnets)
before they can be incorporated into the
schedule
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Projected Delays

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 Risk!!!!

What if Contractor and District could not

reach an agreement regarding the
amount of time extension and/or the
compensability of the delay?

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 Risk!!!!

What if the District wrongfully rejects the

Contractor’s request for time extension
and/or compensation?

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 Risk!!!!

What if the Contractor does not provide

the specified backup to support the time
extension/compensation request?

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Elements of Constructive
Acceleration
• Based on the owner’s unjustified
refusal to grant a time extension or
failure to act
• Requires that:
– A cause exists that would justify a time extension
– A proper request for a time extension
– Denial of that request
– Demand (express or implied) that performance be
completed on time
– An actual acceleration

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 Best Practice
• Enforce the contract requirement for a
good baseline schedule and schedule
updates with a narrative for each as
required
• Enforce the contract requirement for a
formal notice announcing a potential delay
• Enforce the contract requirement for a
Fragnet showing Critical Path impact
• Enforce the contract requirement for
timely submittal of all the above
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 Best Practice

• Do not waive the contract requirements

by your act or failure to act
– Do not give up on sending a letter
requesting the schedule submittal
– Do not give up on sending a letter
requesting a Fragnet as backup for a COP
requesting time extension
– In your requests, always explain the
reasons why you need the schedule or the
Fragnet.
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 Best Practice

• Use the “Notice of Event” tool to establish

a track record of communication on
potential delays. This will reduce
surprises at the end of the project
– District has contractual right to know so it
can make decisions to mitigate and/or
evaluate options
– Investigate the criticality of the issue and act
on it
– Respond to the notice until closed
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 Best Practice

• When scope is added to the Critical

Path, shift the risk to the contractor as
soon as possible
– District has no control over the execution of
the added scope and therefore should not
be assuming the risk

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 Best Practice

• When scope is added to the Critical Path,

shift the risk to the contractor as soon as
possible
– Request the time estimate and schedule
analysis
– Negotiate time
– Contractor has right to reasonable
contingency, not sandbagging
– Consider recovery schedules, if applicable
– Make them commit
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 Best Practice
• Analyze and negotiate delays on a monthly
basis.
– Calculate the net monthly Critical Path
slippage, if any
– Request Fragnets, if not submitted yet
– Allocate/proportion delaying factors (owner,
contractor, concurrent)
– Schedule a meeting to understand/negotiate
– Always take the initiative to document/issue
the results of the meeting even if only partial
or no agreement is reached
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 Best Practice

• Analyze and negotiate delays on a

monthly basis.
– Negotiation meetings must address all
claimed delays that affected the project
within a specific time frame
– The objective is to resolve delays up to the
end point of the time frame
– Assumptions on projected portions of a
delay must be documented as part of the
agreement
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 Best Practice

• Demonstrate good faith even if the

Contractor is not cooperating
– In case the Contractor does not provide the
appropriate backup/analysis for a delay that
you recognize, run your own analysis, put it
on the table for discussion and present the
Contractor with an offer for resolution.
Issue a letter documenting your effort

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 Best Practice
• Demonstrate good faith even if the
Contractor is not cooperating
– If you’re able to reach only partial resolution
with the Contractor, isolate the disputed
portion and issue a separate unilateral CO
for this portion
– If you’re unable to reach any resolution with
the Contractor, issue a unilateral CO for
time extension
– Avoid constructive acceleration by
discussing recovery options
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 Key Points to Remember
• Communicate

• Document

• Enforce the requirements of your contract

• Do not waive the requirements by your act or lack of action

• Shift the risk to the Contractor, for work that you have no control over,
as soon as possible

• Negotiate time impacts on a monthly basis

• Demonstrate good faith even if the Contractor is not cooperating

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