Government Contracting Database
A delay analysis is performed by comparing the contractor’s as-planned schedule with the actual as-built information. This process, though it sounds simple in concept, is more difficult in actual execution. See FAR 52.236-15.
The first step in the process is to determine what reasonably represents the contractor’s as-planned schedule. This should be the first approved schedule which the Contractor submitted to the government. Whether this schedule is a critical path method schedule or a bar chart, some determination must be made of those activities which were critical to the project completion. In other words, a determination must be made as to those activities that if delayed would delay the overall completion of the project. Haney v. United States, 676 F.2d 584, 595 (Ct. Cl. 1982); Barry Bramble & Michael Callahan, Construction Delay Claims § 11.08 (6th ed. 2018)
Concurrently with the determination of the as-planned schedule, work must be done to define the as-built schedule or exactly what happened in the context of the actual construction on the job. Normally the government representative or the contractor’s personnel can sit down and utilizing graph paper and the daily reports or the quality control/quality assurance reports on the project, can draw an actual as-built schedule for each of the activities that occurred on the project.
Delay analyses are subject to, “judicial ‘gate-keeping’ scrutiny to determine whether the expert’s methodology is reliable and should be allowed into evidence according to the general principles set forth in Kumho Tire Co. v. Carmichael, and Daubert v. Merrell Dow Pharmaceuticals.” Bramble & Callahan, supra, at § 11.08. Under this standard , industry acceptance is required before the scientific method is used as evidence. Id. at § 11.07
In general, to be accepted, an analysis must be a logical and convincing presentation which is in concert with both the actual events and the method by which the contractor scheduled the construction. See Mega Const. Co. v. United States, 29 Fed. Cl. 396, 427 (1993); G.M. Shupe. Inc. v. United States, 5 Cl. Ct. 662, 729-30 (1984). In order to provide some indicia of liability, any delay analysis must be based on and supported by corroborating evidence, i.e., the project records. Mactec, Inc. v. Bechtel Jacobs Co., LLC, 346 F. App’x 59, 78 (6th Cir. 2009) (citing Youngdale & Sons Constr. Co. v. United States, 27 Fed. C1. 516 (1993)). In a similar vein, a schedule (including the as-planned schedule) underlying a delay analysis must reflect the actual performance and take into account facts that actually existed on-site. Titan Pacific Constr. Corp. v. United States, 17 Cl. Ct. 630, 637 (1989), affd 899 F.2d 1227 (Fed. Cir. 1990).
In addition, project CPM schedules underlying a delay analysis must have been kept current and reflect delays as they occurred. Mactec, Inc. v. Bechtel Jacobs Co., LLC, 346 F. App’x 59, 78 (6th Cir. 2009) (citing Wilner v. United States, 23 Cl.Ct. 241, 245 (Cl.Ct.1991)). Where the project CPM schedules are not properly updated and are revised without regard for the effect of prior delays, they are useless as a gauge by which the parties or finder of fact can evaluate the actual performance of work, the effect of delays on the project, and the responsibility of the parties for such delays. Fireman’s Fund Ins. Co. v. United States, 92 Fed. Cl. 598, 666 (2010):; Pathman Constr. Co., ASBCA No. 23392, 85-2 BCA 18,096 (1985).
A delay analysis is only as good as the data underlying the analysis. Consequently, an expert must be both familiar with the project records and confirm that the data is correct; otherwise, the analysis should be viewed as dubious. Weaver-Bailey Contractors, Inc. v. United States, 19 C1. Ct. 474 (1990); Titan Mountain States Constr. Corp., ASBCA Nos. 22617 et al., 85-1 BCA ‘17931.
Updated: June 21, 2018