GLOBAL CONSTRUCTION

THE USE (OR MISUSE) OF A PROSPECTIVE TIME IMPACT ANALYSIS PROVISION IN A FORENSIC ARENA: A CASE STUDYBrian Celeste, CCP, PSP, Associate Director, Navigant

ABSTRACT

Most construction scheduling specifications include provisions dealing with the request

for an extension of contract time. Many of these provisions require that the contractor

perform a “Time Impact Analysis” (TIA). While not always specified by name, contracts

can point generally toward requirements that a TIA is to be submitted in a prospective

manner (i.e., in advance of a change or delaying event) to establish entitlement for a

contract time extension. However, what happens when a time extension is not agreed

to contemporaneously and the contract does not specify how to deal with impacts in a

retrospective manner (i.e., after the occurrence of a change or delaying event)? Should a

schedule delay analyst utilize the contractually-mandated TIA provision when submitting

a claim or expert report? Should a Retrospective TIA be prepared? How does delay

mitigation play into the establishment and analysis of a TIA? This article examines the

answers to these questions, discusses the weaknesses of a Prospective TIA with regard

to determining compensability for delays, and provides a case-study regarding how an

expert could respond to or rebut a Prospective TIA analysis submitted “after-the-fact.”

INTRODUCTION: WHAT IS A TIA

A Time Impact Analysis (TIA) is a modeled method of analysis to aid in supporting

a request for an extension of contract time. As defined by AACE RP 52R-06, TIME

IMPACT ANALYSIS – AS APPLIED IN CONSTRUCTION, “[t]he TIA is a ‘forward-looking,’

prospective schedule analysis technique that adds a modeled delay to an accepted

contract schedule to determine the possible impact of that delay to project completion.”1

On the other hand, AACE RP 29R-03, FORENSIC SCHEDULE ANALYSIS-2011 (29R-

03), which endeavors to classify and describe retrospective analyses, indicates that

some “Observational” analysis (Method Implementation Protocols (MIP 3.3, 3.4, 3.5) are

occasionally called “Time Impact Analysis” (TIA). However, most analysts consider TIA a

“Modeled” analysis (MIP 3.6, 3.7) [See Figure 1 on next page].2 Under the description of

MIP 3.6, commonly known as “Impacted As-Planned,” RP 29R-03 states: “MIP 3.6 can be

used prospectively or retrospectively.”

1. Calvey, Timothy T., and Winter, Ronald M. TIME IMPACT ANALYSIS – AS APPLIED IN CONSTRUCTION, AACE International Recommended Practice, No. 52R-06 (2006), AACE International, Morgantown, W.V.

2. Hoshino, Kenji P., Livengood, John C., and Carson, Christopher W. FORENSIC SCHEDULE ANALYSIS, AACE International Recommended Practice No. 29R-03 (2011), AACE International, Morgantown, W.V.

2

In this regard, what is truly clear about the TIA methodology is

that distinguishing between the prospective and retrospective

applications of a TIA is not clearly defined amongst AACE’s

Recommended Practices. When TIA is specified in a contract,

what is a contractor, owner, or schedule analyst supposed to

do? Is it appropriate to use in a retrospective situation? The

answer generally lies in how it is specified in the contract. Taking

a step back, let’s explore the definition of “Prospective” and

“Retrospective” and explain the procedure necessary to perform

a TIA. Later paragraphs discuss scheduling specifications and

the applicability of using a TIA as a retrospective analysis.

PROSPECTIVE ANALYSIS

The word “prospective” is defined by Merriam-Webster

Dictionary as “likely to come about: expected to happen.”3

Accordingly, a prospective analysis is one prepared in advance

of delaying events or change work, to model what is likely to

happen as a result of the subject event(s). RP 29R-03 defines

prospective analyses as:

“Prospective analyses are performed in real-time prior to the delay

event or in real-time, contemporaneous with the delay event. In all

cases prospective analysis consists of the analyst’s best estimate

of future events. Prospective analysis occurs while the project is

still underway and may not evolve into a forensic context...”4

Generally, there are five major steps in the procedure for

performing a prospective TIA:

1. The analyst must first identify that there is a change or

potential change in the work (e.g., change order, construction

bulletin, Request for Proposal, etc.) or a foreseeable potential

delaying event for which there may be entitlement to a time

extension (i.e., a delaying event that might be critical and

which may extend the projected date of project completion.)

2. The contractor should identify the most recent, approved/

accepted schedule update, which we call the “unimpacted”

or “original” as-planned schedule.5 The contractor should

identify the activities in the schedule that may be affected

and the project completion date (or other milestone) to

which delay is being measured.

3. The contractor should create a fragnet (or fragmentary

network of activities) to represent the delaying event or

change work in question. The fragnet should be the analyst’s

best projection of the work activities required to complete

the change work, or the best representation to model a

potential delay issue. It is noted that these fragnet activities

are “projections” of work to be completed or impacts that

may be encountered.

4. Determine how the developed fragnet “fits into” or is logically

tied to the current schedule. The analyst should input the

fragnet activities into a copy of the “unimpacted” schedule,

ensuring the fragnet’s first and/or last activities are tied to

other activities in that schedule. The result of this step is the

“impacted schedule.”

5. Reschedule the impacted schedule as of the same data date as the

“unimpacted schedule,” and determine the difference in project

completion (or other milestone to which a delay may be measured)

between the “unimpacted” and the “impacted” schedule. 3. Merriam-Webster, n.d. Web. 28 June 2016.

4. RP 29R-03 (2011), p, 13.

5. To the extent the contractor’s schedule updates are not accepted, the contractor should follow the contractually required procedures for requesting a time extension, but may need to work with the owner (or the party to which the schedules are submitted) to establish an accepted as-planned schedule for purposes of the TIA submission. To the extent there is not a schedule proximate to the delaying event, a prudent analyst may (or may be required by the scheduling specification to) create an “interim” schedule closer to the delaying event or change work in question.

Taxonomy

1 RETROSPECTIVE

2 OBSERVATIONAL MODELED

3 Static Logic Dynamic Logic Additive Subtractive

4

3.1

3.2 Periodic Contemporaneous Updates (3.3 As-Is or 3.4 Split)

3.5 Modified / Reconstructed Updates 3.6 Single Base2 3.7 Multi Base1 3.8 Single Simulation 3.9 Multi Simulation1

5 Fixed Periods

Variable Windows All Periods Grouped Periods Fixed Periods Variable

WindowsGlobal

InsertionStepped Insetion

Fixed Periods

Variable Windows or

Grouped

Global Extraction

Stepped Extraction

Fixed Periods

Stepped Extraction

Common Names

As-Planned vs As-Built Window Analysis

Contemporaneous Period Analysis,

Time Impact Analysis, Window

Contemporaneous Period Analysis,

Time Impact Analysis, Window

Analysis

Contemporaneous Period Analysis,

Time Impact Analysis

Window Analysis

Time Impact Analysis

Impact As Planned What-If

Time Impact

Analysis, Impacted

As-Planned

Time Impact

Analysis

Window Analysis,

Impacted As-Planned

Collapsed As-Built

Time Impact Analysis,

Collapsed As-Built

Time Impact

Analysis, Collapsed

As-Built

Time Impact Analysis, Window

Anaylsis, Collapsed As-Built

Footnotes

1. Contemporaneous or Modified / Reconstructed

2. The single base can be the original baseline or an update

Figure 1. AACE RP29R-03 Forensic Schedule Anaylsis

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The TIA should be submitted timely in accordance with the

contract requirements, presumably with a written narrative

explaining the issue in question, a listing and explanation of the

activity(ies), durations, and logic used to develop the fragnet,

the reasoning of the logical relationships tying this work into

the unimpacted schedule, and a calculation of the impact (the

difference between the completion date of the unimpacted

schedule vs. the impacted schedule.) This narrative may also

include, if required, a discussion of the contractor’s resources in

support of the activity durations to accomplish the change or

impacted work, and any potential mitigation of delay it might

have considered.

With regard to delay mitigation, the contractor should ensure

that the proposed fragnet takes into consideration alternate

ways to perform its work. In other words, it should look at the

schedule logic to determine whether the subject logic ties are

mandatory or preferential, and to the extent any relationships

are preferential, consider if there is a way to more efficiently

perform the work.

In this regard, it is noted that usually the function of a

Prospective TIA is to model a projection of an impact for

purposes of negotiation of a time extension. In general,

negotiations tend to be more successful if the model is realistic

and sufficient consideration is provided with regard to potential

contractor delay mitigation.

It is also noted that separate from this TIA submission

should be a negotiation regarding direct cost issues and/or

relief from liquidated damages. As will be discussed further

below, a Prospective TIA does not generally deal with delay

concurrency, and thus is a poor tool to definitively determine

delay compensability. Rather, because this is a negotiation tool,

both parties may agree to treat the delays as either excusable-

noncompensable or excusable-compensable, depending on the

outcome of the negotiations.

The determination of delay concurrency is a necessary

prerequisite to providing guidance as to whether a delay is

compensable or noncompensable. In this regard, while the TIA

process may be able to model various simultaneous impacts or

delays, the TIA process does not explicitly deal with concurrent

delay issues.

To the extent the change work or delay event cannot fully

estimate delay as of the issuance of the TIA (due to unknowns,

complexities, or other issues), the contractor’s best strategy is

to provide notice to the owner of the issues it is experiencing.

Furthermore, if delay issues are not settled contemporaneously

and the project ends up in a claim situation (be it a Request for

Equitable Adjustment (REA), or a claim in court or arbitration),

a Retrospective Analysis may need to be performed to establish

entitlement to a contract time extension, delay damages, relief

from liquidated damages, or other impact costs.

RETROSPECTIVE ANALYSIS

Retrospective is defined by Merriam-Webster Dictionary as “of

or relating to the past or something that happened in the past.” 6

Thus, a retrospective analysis is one prepared after the delaying

event(s) or change work has been performed, such that the

actual sequence, timing, and resources of the work related to the

subject event(s) is known.

RP 29R-03 defines Retrospective analyses as:7

“Retrospective analyses are performed after the delay event has

occurred and the impacts are known. The timing may be soon

after the delay event but prior to the completion of the overall

project, or after the completion of the entire project... In other

words, even forward-looking analysis methods implemented

retrospectively have the full benefit of hindsight at the option

of the analyst.” [Emphasis added]

The key, as emphasized in the RP 29R-03 definition above, is

a retrospective analysis is performed with the “full benefit of

hindsight.” A Retrospective TIA, in general terms, is a method

of analysis in which, after the delaying event has occurred, an

“as-built” fragnet is inserted into a planned schedule.8 This is

a similar procedure, and has similar flaws, to the hypothetical

“impacted as-planned” analysis that courts and boards of

contract appeal have rejected as an inappropriate forensic

schedule methodology.9

There is some evidence from court and board decisions, to

conclude that a Retrospective TIA should generally not be used

in a forensic evaluation and that an observational method of

analysis to determine what actually occurred on the project’s as-

built critical path, should be utilized.10, 11, 12

6. Merriam-Webster, n.d. Web. 28 June 2016.

7. RP 29R-03 (2011), page 13.

8. Barba, Evans M. Prospective and Retrospective Time Impact Analysis, July 2005 Construction Briefings, Thompson/West, Eagan, Minn.

9. Robust Construction, LLC, ASBCA No. 54056, 2005-2 BCA 33019; Appeal of Ealahan Elect. Co., Inc., 90-3 BCA (CCH) ¶ 23177, D.O.T. Cont. Adj. Bd. 1990.; Titan Pacific Const. Corp., ASBCA No. 24616, 87-1 BCA 19,626, 17 Cl.Ct. 630, 89 F.2d 1227 (Fed. Cir. 1990).; and Gulf Contracting, Inc., ASBCA No. 30195 89-2 BCA 22814 (1989).

10. It is possible, however, that a “Retrospective TIA” could be required by contract to resolve all time-related disputes.

11. Lifschitz, Judah, et al., A Critical Review of the AACEI Recommended Practice (2009).

12. Petrov, Maria, and Vara, Carlos Manuel, CDR.S03—Retrospective or Prospective Delay Analysis in My REA – Should I Be Concerned About It?, 2008 AACE International Transactions, AACE International, Morgantown, W.V.

4

The importance of “hindsight” in this regard is that the contractor or schedule analyst

should be able to analyze the true nature of project impacts on the project’s as-built

critical path and should not have to perform a modeled analysis. A windows analysis (or

an as-planned vs. as-built) can be a more reliable forensic delay analysis tool, as it deals

with the critical and near-critical path activities without the need to model individual

delay events, of which there are many on a typical project. Furthermore, a windows or

as-planned vs. as-built analysis “allows the analyst to determine which delay impacts are

concurrent, which are staggered, and which are near critical versus precisely critical with

less subjectivity than if only projected dates were used.”13

So, what happens if a Prospective TIA is required by contract to deal with time

extensions, negotiations of time extensions during the course of a project fail, and an

after-the-fact delay-related claim or REA needs to be submitted for arbitration or trial?

Outside of recommendations regarding proper documentation and notice, and adhering

to the requirements of the contract in this regard as discussed above, the author

recommends that when choosing which type of analysis to perform in a retrospective

situation, the first place to go is the contract. Does the contract offer any guidance as

to what type of analysis is required in a forensic environment? The analyst should also

consult with Section 5 of AACE RP29R-03 that has an extensive discussion of how to

choose a methodology.

SCHEDULING SPECIFICATION EXAMPLE

Let’s look at a sample contract provision specifying a TIA to see if any guidance may

be provided.

Figure 2. Sample TIA Specification14

1.1 Time Impact Analysis

Should the Contractor believe it is entitled to an extension of the contract time, or if

the Contracting Officer requests a change for which a time extension may be required,

the Contractor shall prepare and submit wihtin 10 days of the identification of a

delaying event, change in the work, or RFP from the Government, a prospective time

impact analysis for approval by the contracting officer. The Contractor shall utilize a

copy of the last accepted schedule prior to the first day of the impact for the time

impact schedule and the first day of impact is too great, the contractor shall prepare

an iterim updated schedule to perform the time impact analysis.

The Contractor shall prepare a proposed fragnet for its time impact analysis which

shall consist of a sequence of new activities that are proposed to be added to project

milestones. The Contractor shall clearly identify how the proposed fragnet is to

be tied into the project schedule including all predecessors and successors to the

fragnet activities. The proposed fragnet shall be approved by the Government prior to

incorporation into the project schedule.

Unless approved by the Contracting Officer, no other changes will be incorporated into

the schedule being used to justify the time impact.

13. Livengood, John C., CDR.08—Retrospective TIAs: Time to Lay Them to Rest, 2007 AACE international Transactions, AACE International, Morgantown, W.V.

14. Specification example adapted from referenced sample project.

5

In the example specification, above, there are some key statements that provide

guidance that this prospective TIA process should be utilized during the course of the

project to resolve time extension requests. Specifically, the specification indicates that

the analysis should be “prepare[d] and submit[ted] within 10 days of the identification

of a delaying event...” Furthermore, the specification indicates specifically that the TIA

should be “prospective” in nature.

To make the specification clearer and better defined that the TIA methodology should

be utilized only during the project in a prospective manner, language similar to the

following could be added to this specification:

“The fragnet should not include as-built data, as the time impact analysis is to be solely

prospective in nature. This TIA methodology identified above shall be utilized only

during the course of the project to request time extensions, and not retrospectively in a

forensic environment to determine entitlement to a time extension or delay damages.”

Conversely, the specification could require that the Prospective TIA methodology be

utilized during and after the project is over, or a could require a Retrospective TIA for

forensic use.15

Even if the contract requires a prospective TIA, it could generally aid a schedule analyst

to explore the use of an observational analysis approach. The reason for this is the

determination of delay compensability. During the project, a contractor is generally

looking for an extension of time, as a negotiation. In an after-the-fact situation, an

analyst should rely on the best information available, which is generally as-built data

from daily, weekly, and monthly reports, meeting minutes, pay applications, etc., rather

than projections of hypothetical events. Without a retrospective, observational analysis

taking into consideration what actually happened on the Project, what the as-built

critical path of the Project is, and what competing or concurrent delays may have

occurred, the analysis may not provide the trier of fact with a proper understanding of

the actual impacts on the project.16

In summary, the scheduling specifications should be clear as to when and how a TIA is to

be prepared and submitted, what is required in the submission, and should specifically

state that the TIA is to be prospective and/or retrospective in nature. While there is

dispute as to whether a Retrospective TIA is the most appropriate and proper analysis to

perform a delay analysis, the scheduling specification should be clear as to whether the

analysis methodology should govern the after-the-fact resolution of time-related disputes.

In this regard, the following case study is presented based on competed litigation

regarding the construction of a hospital with which the author of this paper was involved.

The author of this paper’s firm was retained by the owner to prepare a schedule delay

analysis regarding delays on the project and to respond to the contractor’s schedule delay

expert’s submission. The contractor’s schedule delay expert submitted prospective TIAs

(slightly modified from those submitted contemporaneously by its client) as its expert

time-based analysis, justifying its analysis methodology choice by referring to the TIA

requirements in the contract. The case study below discusses the subject scheduling

specification, the contractor’s expert’s TIA submission, and how the author analyzed and

responded to the contractor’s expert’s forensically submitted TIA submissions.

15. Barba, Evans M. Prospective and Retrospective Time Impact Analysis, (2005).

16. Lifschitz, Judah, et al. A Critical Review of the AACEI Recommended Practice (2009).

6

CASE STUDY EXAMPLE

During the construction of a design-bid-build hospital project,

a bulletin was issued by the designer, modifying the mechanical

design for a portion of the building. The Government issued an

RFP (request for proposal) to the contractor to address any

direct cost and time extension it feels it may be entitled to. The

scheduling specification provided the following with regard to

the required TIA procedure:

Figure 3. Sample TIA Specification

1.1 Time Impact Analysis

Should the Contractor believe it is entitled to an extension

of the contract time, or if the Contracting Officer requests

a change for which a time extension may be required, the

Contractor shall prepare and submit wihtin 10 days of the

identification of a delaying event, change in the work, or RFP

from the Government, a prospective time impact analysis for

approval by the contracting officer. The Contractor shall utilize

a copy of the last accepted schedule prior to the first day of

the impact for the time impact schedule and the first day of

impact is too great, the contractor shall prepare an iterim

updated schedule to perform the time impact analysis.

The Contractor shall prepare a proposed fragnet for its time

impact analysis which shall consist of a sequence of new

activities that are proposed to be added to project milestones.

The Contractor shall clearly identify how the proposed

fragnet is to be tied into the project schedule including all

predecessors and successors to the fragnet activities. The

proposed fragnet shall be approved by the Government prior

to incorporation into the project schedule.

Unless approved by the Contracting Officer, no other changes

will be incorporated into the schedule being used to justify the

time impact.

The Contractor submitted a proposal for direct cost, extended

general conditions and overhead, along with a prospective

TIA submission requesting additional time. The Government

accepted the direct cost component of the proposal but denied

the request for an extension of time and delay damages.

The Contractor provided notice that it disagreed with the

Government’s rejection of the extension of time, but continued

to perform the change work. Several additional bulletins and

RFIs are issued during the performance of the Work on the

project for which the Contractor requested additional contract

time, each of which were rejected by the Government.

After the contractor achieved Substantial Completion

significantly late, the contractor submitted an REA, requesting

delay and impact damages along with a time extension

request in order to release its withheld liquidated damages.

This REA was rejected by the Contracting Officer, and the

Contractor elected to certify its claim and enter into litigation

as contemplated under the Disputes clause of the contract.

The Contractor hired a schedule delay expert to analyze the

project and submit an expert report regarding its findings

and conclusions. The Contractor’s expert, pointing to the

TIA provision of the contract in Figure 3 above, which is the

only guidance provided by the contract as to how to handle

requests for extensions of time, submitted an analysis based

on Prospective TIA, which was slightly modified from those

submitted contemporaneously by the Contractor.

As our firm was engaged as the Government’s schedule delay

analysis expert, I was tasked to review, analyze, and respond

to the Contractor’s delay analysis expert’s report. My initial

commentary was regarding the specification to which the

Contractor’s expert pointed. There was no language in the

specification that required the analyst to submit prospective

analyses for “all time-related disputes, both during and after the

project,” nor did the specification direct the analyst to perform

any specific type of analysis in a forensic arena.

This matter was in litigation and it was ultimately up to the

trier of fact to determine what type of analysis is required or

helpful in considering the facts of the case and the contract

requirements. As discussed previously, the author of this paper

recommends an observational method of analysis be performed

in retrospective situations. An observational retrospective

analysis such as a windows analysis (AACE RP29R-03 MIP 3.3 or

3.4) or as-planned vs. as-built (AACE RP29R-03 MIP 3.1 or 3.2)

has the significant advantage of determining what work was

on the actual as-built critical path of the project and can help

determine delay compensability.

In this regard, for my affirmative analysis, I performed a windows

analysis, also known as a “contemporaneous period analysis”

(AACE RP29R-03 MIP 3.3). This is a chronological and cumulative

approach to analysis that marches through time and endeavors

to determine the as-built critical path on the project and to

apportion the source, magnitude, causation, and responsibility of

the associated critical delays to the responsible parties.

However, because the trier of fact would ultimately decide what

type of analysis may or may not be required by contract, we felt

it necessary to review the individual prospective TIAs submitted

by the Contractor’s expert on their face to determine if the

issues in question delayed the project and if prospective TIAs

established any delay to the project.

7

In this regard, for purposes of this case study, we will look at the TIA prepared for Bulletin 1. The figure below depicts a summary of the

original “unimpacted” schedule with a data date of 03-Sep-12:

Figure 4. Summary of original “unimpacted” schedule

Figure 5. “Impacted” schedule containing insertion of Fragnet

As can be seen, the critical path runs through the Main building area (Framing and Electrical Rough-in 1st Floor, and Electrical Rough-in

and Drywall 2nd Floor) with the Ancillary building on a near critical path of 18 workdays.

The Contractor created and inserted a four-activity fragnet (Activities F1000, F1010, F1020, and F1030), tied to the commencement of

Activity A2440 “Ancillary 1st Flr Install Electrical Equipment” into this schedule representing the Contractor’s contemporaneous forecast

(using “foresight” durations) for the additional generator work required in the Ancillary building area.

8

The insertion of the Bulletin 1 fragnet used up the available float in the Ancillary building area, causing this area to become critical.

Furthermore, this TIA had the effect of pushing the projected date of Substantial Completion from 11-Dec-12, to 30-Jan-13, a projected

delay of 50 calendar days for which the Contractor (and Contractor’s expert) requested a 50-calendar day compensable time extension.

It is noted that a prospective TIA should generally be submitted in advance of a delaying event or change for purposes of negotiating

a time extension. In this case, a prospective TIA was submitted after the fact, leading me to review several aspects of the submission.

Most importantly, it is necessary to look at how the change/delay work was actually performed, what was driving the as-built critical

path to project completion during this period of time, what was the true delay on the project during the impacted period, and what was

actually causing this delay on the Project.

In this regard, in order to evaluate this and each of the other prospective TIAs that were submitted after the fact, the author first looked at

daily reports and actual dates included in subsequent schedule updates to determine the as-built durations and sequencing of the change

work. This helped us determine if the original fragnet durations and logical relationships were reasonable and realistic, if the Contractor

followed the plan indicated in the TIA submission or if the Contractor was able to work out of sequence to mitigate some potential delay.

Comparing the as-planned fragnet to the as-built of the schedule revealed several important things. First, it appears that the Contractor

worked significantly out of sequence compared to the projection from the TIA. The Contractor did not wait until the Bulletin 1 change

work was performed to commence the original contract work in the Ancillary building area. As a result, the Contractor did not

experience delay in this area as it projected in its TIA.

Figure 6. Comparison between original “as planned” Fragnet vs “as-built” Fragnet

Main Building Area –as-planned non-critical

Ancillary Building Area –as-planned critical

Main Building Area –delayed electrical rough-in becomes critical

Ancillary Building Area – becomes non-critical

9

Second, a review of the original contract electrical rough-in

work revealed that it was significantly delayed during this period

of time. As a result, the project’s critical path continued to run

through the Main building area, and the Ancillary building area

has 42 workdays of float.

It is noted that contemporaneously, the Contractor may not have

had any idea of the impending electrical delays on the project.

The submitted prospective mechanical Bulletin 1 TIA would not

have captured any potential electrical delays if they were not

known as of the submission date, to no fault of the Contractor.

If the Contractor and Government were able to negotiate a

resolution to the requested time extension, the project would

move on and the Contractor would be entitled to what was

agreed to between the parties. However, once the work is

completed and as-built data is available, the actual delays and

sequence of work should be analyzed and the party that actually

caused critical delay on the Project should be held responsible.

I also performed a windows analysis for the project to determine

what work was on the as-built critical path to Project Completion

during this period of time. In this regard, consistent with the

analysis of the fragnet above, the electrical rough-in work in the

Main building area was driving and critically delaying the as-built

critical path of work during the Bulletin 1 “impact period.”

Furthermore, I looked at the schedule updates during this period

of time to see what work was on the projected longest paths for

each update and if the Contractor was truly delayed to the extent

it claims in its prospective TIA. Consistent with the windows

analysis and determination of the as-built critical path, the

schedule updates indicated that, although the project appeared

to be delayed during the Bulletin 1 “impacted period,” the

electrical rough-in work in the Main building area was critical and

that work was actually delaying the Project during that time, and

not the activities identified in the Contractor’s prospective TIA. I

also reviewed the available Project information (e.g., daily reports,

correspondence, meeting minutes, etc.) and determined there

were no assertions made by the Contractor or other evidence of

the Contractor “pacing” its work because of this change.

Analyzing and presenting the relevant data thoroughly and

succinctly to a trier of fact will help to establish entitlement to a

requested extension of time and/or delay damages. It is noted

that while the Contractor may have experienced other impact

damages (i.e., acceleration costs or loss of productivity) related

to Bulletin 1, the analysis indicates Bulletin 1 did not cause a

critical path delay and the Contractor should not be entitled to a

time extension or delay-related damages as a result.

SUMMARY AND CONCLUSIONS

In conclusion, a Prospective TIA can have significant value

during a project to contemporaneously deal with the negotiation

of a request for an extension of contract time, particularly if

performed in conformance with AACE RP 52R-06, TIME IMPACT

ANALYSIS – AS APPLIED IN CONSTRUCTION. However, a

Prospective TIA only deals with an estimate of what might

happen on a project in advance of the delays actually unfolding

and does not generally take into consideration concurrent delays

and compensability matters. In a retrospective situation, an

analyst should deal with the best information available, as-built

data, and prepare an observational analysis to establish the

as-built critical path to project completion and to apportion

the source, magnitude, causation and responsibility of the

associated critical delays to the responsible parties. An

exception to this may be when a contract requires the use of a

particular type of analysis in a retrospective or forensic situation.

In such cases, it is advisable to perform both the Prospective TIA

and a more appropriate retrospective analysis.17

It is important for a schedule delay analysis to take into

consideration delay mitigation. In a prospective analysis,

potential mitigation should be accounted for in the development

of a fragnet and addressed during negotiations. Retrospectively,

contractor mitigation should be analyzed to determine the true

effect of any delays in question.

While the author does not generally consider a TIA (either

prospective or retrospective) to be the most appropriate and

proper analysis to perform in a retrospective, forensic delay

analysis, a scheduling specification should be clear if contract

requires a TIA methodology to govern the after-the-fact

resolution of time-related disputes.

17. RP29R-03 (2001) includes a detailed section on how to choose the best methodology for the situation

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To the extent, as a delay analyst, you encounter prospective TIA’s

submitted retrospectively, the main course of action should be:

1. Determine whether the subject impacts truly delayed the as-built critical

path to Project Completion

2. Whether the TIA fragnet activities were reasonable in sequencing and

duration to the as-built record of that work

3. Whether there were any concurrent or competing delays that may offset

the compensability of delays

4. Whether the submission meets the contractual requirements regarding

the request for an extension of time

As a contractor or contractor’s analyst planning to submit a TIA in a

retrospective or forensic situation, if required or otherwise desired, these

same guidelines should be followed in order to provide the reviewer or trier of

fact the most reasonable and accurate presentation of impacts on the project.

Finally, as in any schedule delay analysis, the main consideration should

be to determine cause and effect — with causation necessary to establish

entitlement, and, if available, an analysis to demonstrate the actual effect

on the work.