Schedule Delay Analysis Method Selection Under Weak Records
A forensic consultant is retained 3 years after substantial completion on a $210M power project. The contractor claims 120 days of owner-caused delay. Available records: an as-planned baseline schedule, monthly updates for only 14 of 30 months, no as-built CPM, fragmented daily reports, and change orders that reference dates inconsistently. The owner's consultant proposes a windows analysis; the contractor proposes a total-cost/time-impact analysis. The consultant must recommend a defensible method and quantify entitlement given the gaps. The contract has a no-damages-for-delay clause with exceptions for owner-caused active interference.
1. Recommend a delay analysis methodology and justify it given the record deficiencies.
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Neither a pure time-impact analysis (requires a reliable baseline and fragnet modeling) nor a total-cost approach (requires proof all costs are owner-caused) is well supported. Recommend a windows/contemporaneous-period analysis using the 14 available monthly updates, supplemented by an as-built reconstruction from daily reports and change-order dates. Windows analysis isolates delay events period by period and is the most defensible when updates are incomplete, because it uses actual progress within each window rather than a theoretical model. Where updates are missing, reconstruct the window from as-built data and flag assumptions. The consultant should document the methodology, its limitations, and the confidence level, and avoid overstating precision beyond the record.
2. How does the no-damages-for-delay clause affect the claim, and what must the contractor prove to fall within the exception?
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The clause bars delay damages unless the contractor proves an exception, typically owner-caused active interference, bad faith, or delay outside the contract's contemplation. Active interference requires conduct that prevented the contractor from performing - e.g., owner-directed work sequencing conflicts, withholding access, or interfering with means and methods - not mere passive delay. The contractor must show specific owner acts, that those acts were the proximate cause of identified delay, and that they fall within the exception's scope. The consultant should map each claimed delay event to the clause language and separate excusable time (which may still be granted) from compensable delay damages (which the clause bars absent an exception).
3. Given fragmented records, how should the consultant present the 120-day entitlement?
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Present entitlement as a range with documented confidence, not a false point estimate. Build a delay register: each event, its date, affected activities, contemporaneous evidence, and whether it is owner-caused, contractor-caused, or concurrent. Use the windows analysis to assign days per period, then net out concurrency and contractor-caused delay. Where records are missing, disclose the gap and the assumption used, and show sensitivity (e.g., entitlement of 70–95 days under stated assumptions). This transparency protects credibility in negotiation or litigation and avoids the vulnerability of a single unsupported number that opposing counsel can attack.