Thanks to modern scheduling techniques, it is now possible to demonstrate the delay impact that may occur as a result of unanticipated project events. These delays can be identified and quantified, which contributes significantly to the legal importance of the project schedule. Scheduling techniques don’t necessarily constitute proof in and of themselves, but their application can be of evidential value to demonstrate liability and causation. Plus, they can provide a solid basis for allocating or apportioning damages.
It’s critical to understand the rights of both owner and contractor that arise from a contractual relationship. For instance, the owner has the right to expect timely performance, contract for liquidated damages for late performance, and make agreements to limit contractor remedies. Similarly, the contractor has the right to access work areas, receive timely approvals, and be paid promptly.
It’s crucial to understand scheduling techniques and how to use them effectively, and to realize that project schedules can serve as a basis for delineating respective rights, obligations, and warranties flowing from the schedule.
Proactively Utilize Time Impact Procedures
Plans, schedules, and estimates will invariably change as a consequence of errors and omissions, owner changes, and performance variations, just to name a few. These circumstances require that the schedule be kept updated and revised regularly, to reflect actual performance and the contractor’s current plans and intentions.
Calculating the degree of delay can best be achieved through a process called Time Impact Analysis (TIA), a time estimating process utilizing networking techniques (fragnets) to demonstrate the impact of specific delays on the project schedule as they occur. Fragnets can be defined as sequences of new activities and/or network revisions that are proposed to be added to the existing schedule, in order to demonstrate the effects and the method for incorporating delays as they are encountered. The objective is to locate, isolate, and quantify the time impact of specific issues and determine the time relationship to past or current delays. Time Impact Analysis procedures can be utilized in either a prospective or retrospective manner, even on the same project.
When both parties utilize TIA procedures, this provides a disciplined basis for two contractual parties to independently evaluate the impact of a delay event or issue. Employing a common basis to analyze and compare results facilitates the negotiation and agreement of the parties as to the extent of delay and time impact involved. TIA techniques allow each party to demonstrate an understanding of the specific delay and scheduling proofs offered versus those mandated. If an agreement cannot be reached, the efforts provide a clear record of differences that can be documented by records of meetings or negotiations. A TIA can be used contemporaneously during the project as a contract requirement, in addition to being a key tool in performance of an after the fact delay analysis should any issues remain unresolved.