FORENSIC DELAY

ANALYSIS TRAINING

2) Observational Methodologies
Doha November 2019

1
Last Session

▪ Purpose of forensic scheduling

▪ Types of delay analysis
▪ Selecting the appropriate methodology
▪ Modelled methodologies
▪ Demonstration of the application of
modelled methodologies
▪ Problems with modelled methodologies
2
This Session
▪ Focus on observational methodologies
▪ As-Built v Actual critical path
▪ Retrospective delay impact determination
▪ Concurrent delays
▪ Application of observational methodologies
• Time slice Windows Analysis
• Project Wide AP v AB Analysis
• AP v AB Windows Analysis
• Identifying the critical path using observational
methodologies
▪ Problems with observational methodologies

3
Recap
▪ Modelled methodologies
• Rely on computer software simulation to model the
impact of pre-defined delay events
• Cause>Effect
• Dynamic
▪ Observational methodologies
• Rely on the “discovery” of delays through
investigation of project records
• Effect>Cause
• Typically static

4
Critical path and delay impact
assessment in observational
methodologies
▪ Modelled methodologies rely on computer
simulation to tell us the critical path and delay
▪ But we do not rely solely on software
simulation in observational methodologies
▪ This means that accurate critical path and
delay impact determination is central to the
proper application of observational
methodologies

5
Types of critical path
▪ Prospective critical path
• The forecast or forward looking critical path
▪ Actual critical Path
• The contemporaneous critical path prevailing at different
points in time during a project
• May change relative to progress at site
As-built critical path
• The longest sequence of activities through the as-built
programme
• Ignores float and relative progress during the project
• May differ from the actual critical path

6
9

Actual critical path v As-Built critical

path
Contemporaneous

APvAB

Review of progress/
common sense suggests
first path critical, changed to
second through project
LPA

Retrospective

Retrospective view suggests

second path critical
throughout project
 Prospective critical path
Week
-2 -1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

Substructures, 14
• The forecast critical
Steel frame, 33
path runs through
the plant building
Cladding, 5
• Ignores the impact
of actual progress
Equipment install/commision, 5

Handover,

Pipeline connection, 42

8
 Actual critical path
Week
-2 -1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

• The actual critical

Substructures, 14
path initially ran
through the plant
Steel frame, 33
building
• But at this point, the
Cladding, 5
actual critical path
switched to the
Equipment install/commision, 5
pipeline connection
due to delays in the
Handover,
pipeline connection
works
Pipeline connection, 42

9
 As-built critical path
Week
-2 -1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20

The As-Built /
Substructures, 14
retrospective critical
path runs through the
Steel frame, 33
pipe line connection
Cladding, 5
This being the longest
chain of activities
Equipment install/commision, 5
through the As-Built
Handover,

Pipeline connection, 42

10
 As-Built v Actual Critical path
• Changes to the critical path of a project can and do occur

• Retrospective as-built critical path determination often fails to take

account of changes to the critical path

• May identify earlier activities as critical as a result of future, unrelated

delays

• May not correspond with actual events / common sense

• Therefore, preference is normally for contemporaneous critical path

determination in forensic delay analysis – the actual critical path

11
 Retrospective delay impact
determination
• We normally deploy observational methodologies after delay
events have taken place

• Therefore we ought to be able to determine the actual delay

impact of an event by understanding what actually happened

• This is determined on a case by case basis by comparing the

planned intent to what actually happened

12
 Did that event really delay completion?

Delay Event Key:

Baseline
Progress
As Built
1.5m Critical

3.2m

• The importance of retrospective delay impact

determination
Concurrency and EOT
▪ Contractor normally entitled to EOT where two events
occur at the same time and cause critical delay

• Henry Boot Construction (UK) Ltd v Malmaison Hotel

(Manchester) Ltd [2000] EWCA Civ 175 (28 July 2000)

▪ Standard position can be amended by contract:

“(b) any delay caused by a Relevant Event which is

concurrent with another delay for which the Contractor is
responsible shall not be taken into account”.

• North Midland Building Ltd v Cyden Homes Ltd [2018] EWCA

Civ 1744
But true concurrent delay rare in
practice
▪ True concurrent delay is the occurrence of two or
more delay events at the same time, one an
Employer Risk Event, the other a Contractor Risk
Event, and the effects of which are felt at the same
time.
▪ True concurrent delay will be a rare
occurrence.
▪ A time when it can occur is at the commencement
date (where for example, the Employer fails to give
access to the site, but the Contractor has no
resources mobilised to carry out any work), but it
can arise at any time.
SCLP DDP 2nd Ed. p 30
Is it really a concurrent delay?
▪ In construction claims, the current position is that a
concurrent delays are only relevant to the extent they
affect the critical path of the project

• Saga Cruises BDF Ltd and another v Fincantieri SPA [2016]

EWHC 1875 (Comm)

▪ Delays consumed in float in the programme are not on

the critical path, have no impact on the completion
date, and are therefore irrelevant for the purpose of
determining EOT

▪ For true concurrent delay, causation in fact must be

considered & established
Sequential delays
▪ Concurrent delays rarely occur in practice

▪ In most cases, the use of programming and

factual investigation confirms that the delay
was not a concurrent delay, but a sequential
delay
Sequential delay
Delay

Employer delay

Delay

Delay

Contractor delay

Employer delay: Late drawing approval

Contractor delay: Late completion of RC frame

True concurrency
Delay

Employer delay

Delay

Delay

Contractor delay

Employer delay: Late drawing approval

Contractor delay: Late completion of RC frame

True concurrency
Delay

Delay

Float

Employer delay: Late drawing approval

Contractor delay: Late completion of RC frame

Concurrency Prolongation Costs
▪ The approach sometimes adopted in defence is the “but for”
argument – not “true” concurrency applicable to EOT.
“Even if those events did not occur, you would have completed late
anyway”

▪ On current case law this is not “true” concurrent delay,

because the non-excusable events had no impact on
completion

▪ But this argument may be relevant to cost assessment, if it

can be shown that specific resources were tied up
managing the part of the project without excusable delays
But for concurrent delay using
multiple float paths
But for concurrent delay using
Total Float values
Update 1 2 3 4 5 6 7 8 9 10 11 12

Substructure A 25 24 15 3 -20

Superstructure A -25 -30 -31

Envelope A -31 -32 -33 -33

Fitout A -34 -35 -35

Substructure B 0 -10 -11 -11 -15

Superstructure B -16 -30 -30

Envelope B -30 -30 -29 -29

5 to 10 days of float on
path 2 – maximum
Fitout B prolongation cost? -29 -29 -25
But for concurrent delay using
CAB Analysus
▪ You can also use the collapsed as-built
analysis to identify but-for concurrent delay
▪ This normally shows only a marginal amount of
“collapse”
▪ Useful for a defensive position
▪ See Week 1 slides and forthcoming case
studies

24
Observational methodologies

25
 Time Slice Windows Analysis
As-Planned
WINDOW 1 WINDOW 2 WINDOW 3

Window 1 As-Built 1

Window 2 As-Built 2

Window 3 As-Built 3

Total As-Built 1 2 3

Delay
1. Inspect programmes in window to identify critical path / delay
2. Repeat step 1 for each window
3. Investigate causes of delay

26
TSWA - Identifying the critical
path
▪ For all programme updates:
• Check programmes for accuracy and incorrect logic
• Make corrections if neccassary
• Re-schedule and group critical and near critical paths
▪ For each programme
• Review and record critical and near critical paths
• Record shifts in completion dates
• Compare for consistency with previous and subsequent
programmes
• If neccassary, make further corrections, adjustments to
produce reasonable critical path
▪ Apply common sense – with hindsight, it is not unusual to find
that the programmes (planner) produces unreasonable
forecasts 27
 2019 2020 2021
Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep OctNov
Mixed Use Scheme - B1

Milestones
As-Planned
Substructures

Podium
Critical path runs through TB
Tower B
substructure
RC Frame
Envelope
Fit-out
Mixed Use Scheme - W1

Milestones

Substructures
Window 1
Podium
Critical path through TB
Tower B

RC Frame
substructure
Envelope
Fit-out
Mixed Use Scheme - W2....

Milestones Window 2
Critical path through TB
Tower B
envelope
Envelope
Fit-out
Mixed Use Scheme - W3

Milestones
Window 3
Tower B Critical path through
Envelope TB envelope/Fit Out
Fit-out
Mixed Use Scheme - W4
Window 4
Milestones
Critical path
Tower B 28
Fit-out
through fit out
Identifying delay
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

Design
Time Slice
Structure Windows Analysis
Envelope / roof
Fit Out
Baseline
Programme Planned Completion

Forecast
5w Delay Impact of
Design Design
Structure progress/delay

Actual prolongation Envelope / roof

Fit Out
Time Slice 1 Planned Completion

Forecast
2w Delay Impact of
Structure
Structure progress/delay
Envelope / roof
Actual prolongation Fit Out
Time Slice 2
Planned Completion
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22
1 23
2 24
3 25
4 26
5 27
6 28
7 29
8 30
9 10
31 11
32 12
33 13
34 14
35 15
36 16
37 17
38 19
39 20
40
2941
21 22
42
The importance of good
programmes (example)
▪ Construction manager appointed to oversee refurbishment
of hotel in London

▪ Drew up a master programme in August 1997.

▪ First update issued in October 1997 showing an 8 week

critical delay.

▪ Updated programme in March 1998 showed the critical

activity as complete. In fact, it was still 17 weeks late with
the corresponding effect on the completion date.

▪ In December 1998, delay reported at 20 weeks when, in

fact, the actual delay was 33 weeks.
30
▪

31
Great Eastern Hotel v John Laing
EWHC 181 (TCC); 99 Con LR 45 TCC

▪ HELD

• Construction manager missed many causes of delay,

responsible for Employer’s delay costs

• Main reason was failure to update the programme and

to accurately report progress

▪ The Construction Manager’s failure to update the

programme properly meant it missed various
delays – same risk applies to delay analyst

32
 Time Slice Windows Analysis
• Strengths
• Relies on contemporaneous records of progress/programme updates
• Relatively simple to perform
• Accounts for non-excusable delays

• Weaknesses
• Dynamic method (if relying on updated programmes) – assumes updated
programmes include correct logic/durations/reasonable forecasts
• Requires complete progress records/programme updates
• Can be time consuming (lot’s of software work)
• Can produce theoretical results unless properly implemented / guided by
common sense
Critical Path Delay Impact
Methodology Anaysis Type Information required
Determined Determined
Observational / >Logic Linked Baseline programme
Time Slice Windows Analysis Dynamic / Contemperanesouly Retrospectively >Updated programmes or progress records
Effect>Cause to recreate them
33
Project Wide APvAB Analysis
2019 2020
Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Jan Feb Mar Apr May Jun Jul Aug Sep Oct N
IFC Information Released,
Project Start, 18-Mar-19 A
IFC Information Released,
See SCL DDP para.
IFC Information Released,
IFC Information Released,
11.7
Site preperation
Piling installation This methodology
Construct Floor raft
does not use
Construct core walls and columns
RC Frame Level 0 to 1
Windows, but can be
RC Frame Level 1 to 2 useful as a first step
RC Frame Level 1 to 2
RC Frame Level 2 to 3
RC Frame Level 3 to 4
RC Frame Level 2 to 3
RC Frame Level 3 to 4
RC Frame Level 5 to 6
RC Frame Level 5 to 6
RC Frame Level 6 to 7
RC Frame Level 6 to 7
RC Frame Level 7 to 8
APvAB Analysis

E.g. contractor claims 70 days of delay to RC Frame due to late Roof

structure drawings. However, delay was already up to 63 days at completion
of Level 9. Hence maximum delay is 7 days
As-Planned vs. As-Built Analysis
• Strengths
• Easy to perform
• Does not require complete programme updates
• Suitable where baseline or updates are defective
• Weaknesses
• Cannot identity the critical path
• Usually based on complicated dataset that is difficult to
analysis in a single step
• Can be impressionistic unless supported by robust
analysis
Critical Path Delay Impact
Methodology Anaysis Type Information required
Determined Determined

Observational / Static >Baseline programme

APvAB Analysis N/A Contemperanesouly
/ Effect>Cause >As-built programme
As-Planned vs. As-Built Windows
As-Planned

Window 1
5d ahead
Window 2 Window 3
25d (30d)
As-Built 30d (5d)

Window 4
35d (5d)

Window 5
37d (2d)

1. Determine baseline
2. Determine as-built/critical path
3. Determine delay/causes of delay

37
The as-built schedule
▪ To understand the actual critical path and impacts
of a delay, it is crucial to identify the actual
sequence and timing of the work

▪ Creation of the as-built does not require detailed

programming knowledge – a simple spreadsheet is
sufficient to record factual information on progress
and delays.

▪ Format of information collected depends on

records available

38
The as-built schedule
▪ Daily record of activities prepared by site
engineers
Date Building Level Location Trade/Package Activity Delay Event

15-Jan-19 Service Building Basement Room A Dry lining Complete 1st fix dry lining

16-Jan-19 AC Building West cable trenches Civils Excavation start 6 hours lost due to plant breakdown

16-Jan-19 AC Building East cable trenches Civils Reinforcement finshed. Poured

16-Jan-19 DC Common Zone 1 Steelwork Area stopped due to NCR 123

17-Jan-19 DC Common Zone 2 Steelwork Area stopped due to NCR 123

18-Jan-19 DC Common Zone 3 Steelwork Area stopped due to NCR 123 +124

39
The as-built schedule
▪ Compilation of progress percentages in weekly
reports

02-Oct-17
09-Oct-17
16-Oct-17
23-Oct-17
30-Oct-17
06-Nov-17
13-Nov-17
20-Nov-17
27-Nov-17
04-Dec-17
11-Dec-17
18-Dec-17
25-Dec-17
21-Aug-17
28-Aug-17
04-Sep-17
11-Sep-17
18-Sep-17
25-Sep-17

01-Jan-18
08-Jan-18
15-Jan-18
22-Jan-18
29-Jan-18
05-Feb-18
Activity 34-17 35-17 36-17 37-17 38-17 39-17 40-17 41-17 42-17 43-17 44-17 45-17 46-17 47-17 48-17 49-17 50-17 51-17 52-17 1-18 2-18 3-18 4-18 5-18 6-18

Electrical
Plumbing (sanitery) 0.9 0.9 0.9 0.9

Small power/light 0.7 0.8 0.8

Small power 0.3 0.3 0.3 0.3 0.3 0.3 0.6 0.8 0.9 0.9 0.9 0.9 0.9 0.9 0.9 0.8 0.9 0.9 0.9

Cooling system equipment 0.9 0.9 0.9 0.9 1.0 1.0

HVAC equipment 0.9 0.9 0.9 1.0 1.0 1.0 1.0 1.0 1.0 1.0 1.0

Plumbing equipment 0.1 0.1 0.1 0.1 0.2 0.2 0.6 1.0 1.0

Electrical heating equipment 0.8 0.8 0.8 0.8 1.0

Himling 0.7 0.7 0.7 0.7 0.7 0.7 0.8

Cable pulling 0.2 0.5 0.7 0.7 0.7 0.8 0.7 0.7 0.7 0.7 0.7 0.7 0.6

Smal power 0.8

Integrated comunication 0.7 0.8 0.8 0.7 0.7 0.8 0.8 0.8

Small power phase 2 0.6 0.7 0.7 0.8 0.8 0.8 0.8 0.9

Automation 0.1 0.1 0.2 0.3 0.3 0.3 0.4 0.5 0.6 0.7 0.8 0.9

Alarm and signal 0.7 0.7

Earthing (cooper bars, ducts, ladders, susp floor) phase 2 1.0 1.0 1.0

Lighting phase 2 1.0 1.0 1.0

Cooling system piping 0.8 1.0

Chang of cable trays and light 0.5

Cable pulling/change cable 1.0 1.0 1.0

Small power (Missing safety switch) 1.0 1.0 1.0 1.0 1.0

40
APvAB - Identifying the actual critical
path without regular updates
▪ Review drawings and scope of work
▪ Review baseline programme
▪ Determine what the critical path “should be”
• May sometimes differ from the baseline CP
• Application of common sense
▪ Trace initial critical path through as-built, noting
any deviation
▪ Review initial critical path in light of first deviation
▪ Review progress records
▪ Revise view on critical path and continue with
analysis
41
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

Design APvAB
APvAB Windows
Windows
Anlaysus
Structure Analysis

Envelope / roof

Fit Out
Baseline
Programme Planned Completion

Design 5w behind
programme
2w behind Structure
programme
5w behind Envelope / roof 4w behind
programme programme

Fit Out
As-Built
Planned Completion
42
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22
1 23
2 24
3 25
4 26
5 27
6 28
7 29
8 30
9 10
31 11
32 12
33 13
34 14
35 15
36 16
37 17
38 19
39 20
40 21
41 22
42
 Week
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

Substructure drawings, 20
As-Planned
Planned Critical path runs
Substructure Zone A RC works, 11
through 100% design
release, then RC works
Substructure Zone B RC works, 11
Zone A, B, C
Substructure Zone C RC works, 8

As-Built
Substructure Zone B drawings, 30
Actual Critical path runs
through Zone B design
Substructure Zone B RC works, 14 release, then remaining
RC works.
Substructure Zone A drawings, 6 Zone A and C designs did
not drive progress and
Substructure Zone C drawings, 9 were not on the actual
critical path
Substructure Zone A RC works, 24

Substructure Zone C RC works, 20

43
 Identifying delay
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

Design APvAB
APvAB Windows
Windows
Anlaysus
Structure Analysis

Envelope / roof

Fit Out
Baseline 2 weeks
No delay in
Programme delay in
envelope
Planned Completion
design

Design 5w behind
programme 1 week
mitigation in
2w behind Structure fit out
programme
5w behind Envelope / roof 4w behind
programme programme
3 weeks Fit Out
delay in
As-Built structure
Planned Completion
44
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22
1 23
2 24
3 25
4 26
5 27
6 28
7 29
8 30
9 10
31 11
32 12
33 13
34 14
35 15
36 16
37 17
38 19
39 20
40 21
41 22
42
The importance of progress
records (example)
▪ Contract to design a sewerage system for a
subdivision and submit it for approval in New South
Wales, Australia
▪ Alleged breach consisting of failure to create and
submit a design acceptable to the approval authority
allegedly having the effect of delaying completion of
the subdivision
▪ Programming experts called on question of delay –
appropriate method of delay analysis in dispute –
▪ Court rejected both expert’s evidence and gave regard
to evidence contemporary records
45
46
White Constructions v PBS
Holdings [2019] NSWSC 1166
▪ HELD – Claim rejected – no clear evidence of delay in
contemporary records

▪ …[N]either method of delay analysis is appropriate to be adopted

in this case….

▪ …Close consideration and examination of the actual evidence of

what was happening on the ground will reveal if the delay in
approving the sewerage design actually played a role in delaying
the project and, if so, how and by how much.

▪ …the Court should apply the common law common sense

approach to causation

47
The importance of progress
records (another example)
▪ Project encompassing laying of a thirty-inch
gas export pipeline in the Shetland Islands in
Scotland
▪ JV Claimants made a number of disruption and
prolongation claims against Client
▪ Claims mainly related to the effects of site
conditions

48
Van Oord v Allseas [2015] EWHC 2074
(TCC).
▪ “Contemporaneous documents are a useful starting point
when trying to work out what was happening on site at any
given time, and what the relevant individuals thought were
the important events on site during the works.” [Emphasis
added]

▪ …there is little indication in the contemporaneous

documents, that, at any time, OSR put any great emphasis
on these matters, or were claiming they were likely to lead
to a doubling of the Contract price.

▪ To the extent that the contents of the contemporaneous

documents comprise a credibility test to be applied to the
OSR claims, then I consider that . . . they
comprehensively fail the test.” 49
As-Planned vs. As-Built Windows
• Strengths
• Does not require complete programme updates
• Suitable where baseline or updates are defective
• Accounts for non-excusable delays
• Findings based principally on facts
• Weaknesses
• Difficult to perform, requires expertise in construction
sequencing, delay analysis and forensic investigation
• Time consuming, requires detailed review of all relevant
records
• Can be impressionistic unless supported by robust analysis
Critical Path Delay Impact
Methodology Anaysis Type Information required
Determined Determined

Observational / Static >Baseline programme

As-Planned vs. As-Built Windows Analysis Contemperanesouly Retrospectively
/ Effect>Cause >As-built programme

50
9

Longest Path Analysis

As-Built
Retrospective

Window 1
Window 2
As-Planned 20d
28d (8d)

Window 3
35d (7d)

Window 4

1. Determine as-built/critical path 37d delay

(2d further
2. Review baseline delay)

3. Determine delay/causes of delay

51
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42

Design
Longest Path
Analysis
Structure

Envelope / roof

Fit Out
Baseline
Programme Planned Completion

Design 5w behind
programme Retrospective
Structure
6w behind
Envelope / roof 4w behind
programme
programme
6w behind
programme Fit Out
As-Built
Completion
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 19 20 21 22 22
1 23
2 24
3 25
4 26
5 27
6 28
7 29
8 30
9 10
31 11
32 12
33 13
34 14
35 15
36 16
37 17
38 19
39 20
40 21
41 22
42
Longest Path Analysis
• Strengths
• Does not require complete programme updates
• May be suitable where baseline or updates are
defective
• Accounts for non-excusable delays
• Weaknesses
• Ignores reality of construction progress and incremental
impacts of delays
• Ignores re-sequencing and mitigation
• Whilst this method has a veneer of fact, it typically
produces theoretical results
Critical Path Delay Impact
Methodology Anaysis Type Information required
Determined Determined

Observational / Static >Baseline programme

Longest Path Analysis Retrospectively Retrospectively
/ Effect>Cause >As-built programme
 Problems with Observational
Methodologies
• Observational methodologies rely on the knowledge,
experience and judgment of the delay analyst to identify the
actual critical path and actual impact of delays

• For this reason, observational methodologies can be accused

of being impressionistic and imprecise

• Observational methodologies are typically more costly and

take longer to perform

• Therefore important to set out specific basis of findings

54
Summary
▪ Observational methodologies rely on
“discovery” of delays through factual
investigation
▪ Observational methodologies require more
than programming skills
▪ Tend to be flexible because not reliant on
programmes
▪ But can be accused of being impressionistic
unless supported by robust analysis
Discussion and Q&A

56