Tips on using this forum..

(1) Explain your problem, don't simply post "This isn't working". What were you doing when you faced the problem? What have you tried to resolve - did you look for a solution using "Search" ? Has it happened just once or several times?

(2) It's also good to get feedback when a solution is found, return to the original post to explain how it was resolved so that more people can also use the results.

Further Claim on an already mitigated schedule

7 replies [Last post]
Neil Harrison
User offline. Last seen 6 weeks 4 days ago. Offline
Joined: 17 Apr 2004
Posts: 13
Groups: None

If you have time to consider this I would appreciate you thoughts :-)

The SCENARIO:

1: A baseline schedule was produced and during the course of the works it was used by way of an Impacted As-Planned analysis to demonstrate delay to the Works and claim an EoT.  Let's say the the contract was 2 years long and was due to complete at the end of 2021 with an EoT claim for 4 months pushing the end date to end of April 2022.

2: A secondary baseline (which is perhaps better described as a tentative target schedule with no promises by the Contractor who maintains his right to the claimed [and awarded?1] EoT) is produced by the Contractor which, allowing for the delay claimed, does mitigate some of the delay and pulls the Entitled Completion date back to the end of January 2022... a saving of 3 months on the new Entitled completion date but still a month later than the originally contracted completion date of end of December 2021... Let's say the schedule has a datadate of July 2021.

3: In say September 2021 the Contractor suffered a further delay of 2 months to the Works which he needs to demonstrate to the Client.

The QUESTION(s):

Who owns the mitigation:

  • Is the claim impacted on the mitigated schedule with the overall EoT being calculated as 4 months + 2 months with the mitigation being claimed by the Contractor as his since it does not reduce his etitlement
  • Is the claim impacted on the mitigated schedule with the overall EoT being calculated as 4 months - 3 months + 2 months with the mitigation being 'owned' by the Client since it is the duty of the Contractor to mitigate (and as such a contractual requirement) OR
  • Is the claim impacted on the original yet impacted baseline schedule which already shows an delay of 4 months... thus increasing the Contractors entitlement to 6 months (4+2) thus ignoring the mitigation schedule yet affecting the schedule of work perhaops differently than it would do on the mitigation schedule

Thanks for your thoughts

Replies

Neil Harrison
User offline. Last seen 6 weeks 4 days ago. Offline
Joined: 17 Apr 2004
Posts: 13
Groups: None

Rafeal,

Thanks for the reply and I do understand where you are coming from with regard to, potentially, differing baselines and have considered whether both impact analysis' should be carried out on the original baseline (which would/could result in a 4+2 scenario, although the actual result may differ from a straight A+B) or whether by using the secondary baseline we are indeed using the latest progressed schedule before the delay events in order to take into account the actual status of the works prior to assessing the dleay event(s).

It's all very interesting and very much open to debate since, like law, it's open to interpretation, point of view and more likely than not, which side of the fence you might be sat.

Regards

Rafael Davila
User offline. Last seen 3 hours 39 min ago. Offline
Joined: 1 Mar 2004
Posts: 4978
  • Different methodologies can require the baseline to be different.
  • Contemporaneous methods might require the baseline to be an updated schedule just prior to delay event.
  • Which baseline schedule shall I use for my delay analysis? - Kenzie Group

    Well the answer is simply all of them! Let me explain, in any robust delay analysis you are in essence describing what should have and what actually did happen during the currency of the project. So, if the planned intent changed during the course of the project then you need to explain it and account for it within your delay analysis.

  • Most delay protocols prohibit the use of constraints including finish no later than constraints.
  • In most US jurisdictions the contractor has the right to finish early unless specifically prohibited “complete no earlier than” clause. 
  • Hurry Up and Wait: Dealing with Delays When the Project Still Finishes Early

  • Simple hypothetical scenarios are good teching/learning tools.
Neil Harrison
User offline. Last seen 6 weeks 4 days ago. Offline
Joined: 17 Apr 2004
Posts: 13
Groups: None

Rafael, while I understand that different methodologies can be used, I am trying to keep the scenarios as simple as possible (which is difficult I know when talking about delay analysis because it is like a can of worms) 

But, in any case thanks for the early responses with the thought of 3 months project float being created if the schedule was approved being somewhat intriguing but would question whether, since described as a tentative target schedule with no promises by the Contractor who maintains his right to the claimed [and awarded?1] EoT, that it can actually be approved by the Client but instead should be regarded as 'for information only'

That said, if that were so then could the Contractor even use it for further analysis or should he revert to the previous (original) baseline schedule for the ongoing analysis, noting that differences between the mitigated schedule and the original would be such that they would react differently and providing differing results

Neil Harrison
User offline. Last seen 6 weeks 4 days ago. Offline
Joined: 17 Apr 2004
Posts: 13
Groups: None

Rafael, while I understand that different methodologies can be used, I am trying to keep the scenarios as simple as possible (which is difficult I know when talking about delay analysis because it is like a can of worms) 

But, in any case thanks for the early responses with the thought of 3 months project float being created if the schedule was approved being somewhat intriguing but would question whether, since described as a tentative target schedule with no promises by the Contractor who maintains his right to the claimed [and awarded?1] EoT, that it can actually be approved by the Client but instead should be regarded as 'for information only'

That said, if that were so then could the Contractor even use it for further analysis or should he revert to the previous (original) baseline schedule for the ongoing analysis, noting that differences between the mitigated schedule and the original would be such that they would react differently and providing differing results

Rafael Davila
User offline. Last seen 3 hours 39 min ago. Offline
Joined: 1 Mar 2004
Posts: 4978

AACE® International Recommended Practice No. 29R-03

CHOOSING A METHOD

There is no requirement that the analyst select only one method to analyze a project. Some cases would necessitate the use of different methods for different phases of the project based on factors, including but not limited to, such as the nature of the claim (compensability versus excusability) and source data availability.

Tom Boyle
User offline. Last seen 5 days 2 hours ago. Offline
Joined: 28 Nov 2006
Posts: 300
Groups: None

Neil,

I think this is a great question, and I look forward to reading responses from the forensics experts.

To me, the issue comes down to who owns the terminal float (or Project float) under the contract.  This is easy to answer in NEC contracts (the contractor owns all the terminal float as schedule buffer against his contractual completion date, and Client delays may not intrude on this), so the total EOT would be 4+2=6 months.  In North American contracts, however, I think most owners would claim that the contractor's mitigated schedule, once approved, effectively created 3 months of "float" that belongs to the "project", and no further EOT would be due for a two-month delay.

The situation illustrates very well why many owners resist granting any EOTs based on prospective time impact analyses (TIAs), which are likely conservative.  They instead prefer to wait until "all the chips are down" and a retrospective analysis can be performed.  t

Neil Harrison
User offline. Last seen 6 weeks 4 days ago. Offline
Joined: 17 Apr 2004
Posts: 13
Groups: None

My own further thoughts are that the second option is not possible since Completion Dates can only move in one direction (LATER) with there being no mechanism allowing the Completion date to be EARLIER than it is.

As a result I suggest the question is adjusted to be

Which schedule should be impacted with the second delay, the original baseline that's already been impacted with first delay (i.e. 4+2 = 6) or the mitigated schedule (i.e. 4+2=6 while disregarding mitigation)

Thxs