Project Manager’s As Expert Witness - Part 3: Norman F. Jacobs

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Project Manager’s As Expert Witness

Part Three

Norman F. Jacobs, Jr., CSI, CPE, PMI, AACE, IIE, SAR


Knowledge of Delay Analysis Tools and the Construction Project Manager Expert Witness – the construction Project Manager must study and examine the following “scenario” – Game Plan, in order to prepare to become an expert witness in construction cases. First, acquire an in-depth knowledge of delay analysis tools such as [1] TIA – Time Impact Analysis and Fragnets, [2] impact as-planned analysis, [3] after-the-fact and modified CPM schedules, [4] dollar to time relationships. [5] but-for-schedule arguments, [6] collapsed as-built analysis, [7] Bar Charts versus CPM schedules. [8] concurrent delay apportionment. The “Game Plan” for the expert role in preparing scheduling analysis must include fair and complete scrutinizes and reviews of all relevant project documents. The Project Manager must organize their reports in four broad phases such as: [1] familiarization, [2] investigation and data gathering, [3] fact finding and evaluation, [4] presentation of report and conclusions.

During the familiarization the Project Manager must examine the following: [1]identification of all issues to support the claim recovery, [2] the methodology planned to be used in the delay analysis, [3] any delays that are the responsibility of the claimant, [4] the contract documents position on float ownership, [5] concurrent delays and their treatment during the delay analysis, [6] change orders and time extensions that may relate to said delay, [7] the type of damages being sought, plus the proof of same, [8] the original CPM schedule and all updates, [9] RFI’s and their relationship to any delays, [10] the submittal log dates and time involved.

During the investigation and data gathering phase the Projecy Manager must evaluate and examine the following: [1] complete review and study of all project records and documentation, [2] make a chronological listing of all delays and claim issues, [3] develop a delay issues file for quick reference, [4] prioritizing fact finding and analysis requirements, [5] complete review of all contract documents any study project General Conditions.

During the fact finding and evaluation phase the Project Manager must evaluate the following [1] establishment of an as-planned CPM schedule and test the reasonableness, [2]study as-planned logic and sequence to know if it is reasonable, [3] make a detailed analysis of project records as to timely abd adequate input data to the as-planned CPM schedule, [4] develop ab as-built schedule and check any variances from the as-planned schedule, [5] research claim issues and verify  same with all field personnel, [6] evaluate any short term schedules used in the field, ]7] evaluate labor efficiency and labor reports that support the delay period, [8] scrutinize and  examine any and all out-of-sequence activity starts.

During the presentation phase the Project Manager must examine the following: [1] preparation of an overall time and cost impact report, [2] preparation of summary as-planned, as-built, and as-adjusted schedule, [3] evaluation of special graphics.

The Construction Project Manager Expert Witness and Time Impact Analysis – the Construction Project Manager must be able to use the tool of Time Impact Analysis to measure and evaluate delays and impacts and give his or her testimony and explain the methodology of the Time Impact Analysis.  As each change order, constructive change, disruption, interference, strike, act of God, or any other unusual influence occurs, a Time Impact Analysis with fragnets should be prepared by reference to a specific pair of CPM schedule snode and enode numbers [I-J] on the Network Diagram for each delay to document the circumstances, facts and the estimated time and cost impact on the project CPM schedule. This impact analysis should be based on the current updated schedule as approved or pending, existing project conditions, physical progress achieved at the time of the delay or impact occurs, and the availability of resources, equipment and materials. Additionally, each situation must be analyzed based on an  examination of pertinent contract clauses, contract drawings, contract specifications; plus any written directives or verbal instructions received, and construction experience.   


The preparation of a written and separate impact analysis for each delay or suspected delay is suggest to document the details of each item for quick reference during eventual discussion, negotiation or expert witness testimony. Items in the analysis should include proper identification, [by CPM nodes] description of contract breach, change or delay, reference to contract clauses, drawings, specifications, sketches, RFI’s, etc. Details of the  impact evaluation including CPM schedule network calculations and fragnets, physical progress achieved and project conditions associated with the delay or impact and a conclusion which establishes a position to be taken on the effect of the delay including concurrency and float absorption.

The goal of the Time Impact Analysis is to develop a stop-action picture of the project each and every time it experiences a major impact to the CPM schedule. The date on which the schedule is updated to evaluate the delay or impact is known as the status date. The activities on the schedule are updated to reflect their actual status on the status date; then the planned duration and sequence remaining are used to forecast the work yet to be completed. If the schedule  was revised to either overcome or reflect the effect of the delay or impact, the revised game plan is reflected in the CPM schedule and the expert witness must explain the project status.

The Construction Project Manager expert witness must make an independent evaluation to determine the effect that each major alleged delay or impact causing event had upon the critical path of the CPM schedule. For example. perhaps progress in certain areas did not proceed as planned for reasons unrelated to the alleged delay or impact causing event. Evaluating the actual progress up to the status date may reveal this. The update should revise the planned sequence to reflect the actual manner in which work was completed. The project schedule may also have to be adjusted to reflect planned changes instituted  after the project began or the effect of events unrelated to the delay. A fragnet of activities should be developed to indicate the effect of events not included in the original schedule but included in te remaining, uncompleted activities.

The impact of Changes and Construction Project Managers as the Expert Witness – query and question if the impact of a change order impedes the CPM schedule that shows that many activities are concurrent and have complicated dependency relationships. It only takes a small percentage of the activities to impact the critical path of the schedule. Logic dictates that any change to one activity can easily have a ripple effect on the others. The expert witness must study the magnitude and impact of all change orders to the project schedule. Be aware of the direct impacts of change on cost that must be critiqued as follows: [1] productivity degradation, [2] delays and impacts, [3] equipment and resources, [4] materials, [5] non-productive periods during the re-direction of work, [6] recovery schedule.

The interruption and de-motivating aspects of change orders will lower average productivity on work involved in the change as well as remaining work. The Construction Project Manager Expert Witness must study the effect of any interruptions on the project schedule. Reasonable evaluation of the consequential effects if dependent upon the completeness of the original planning, and this completeness is best assured by use of modern construction planning techniques and tools. Re-examine the tool of the WBS Work Breakdown Structure. The Construction Project Manager expert witness must be familiar with change orders and out-of-sequence work that may increase the performance cost of the project. In order to manager change orders and every change order must be documented when the change order occurs. Study construction research articles such as CII the effect of Changes on Labor Productivity, Document 99 [1994] and Construction Change Orders; Their Magnitude and Impact, Document 66 [1001]. Then too, study and examine the cumulative impact of all change orders. Remember that proving the cumulative, synergistic impact of change can be difficult to  sell to Judges, Juries and Boards. 

CPM Scheduling Methodology and the Construction Project Manager Expert Witness – the expert must be very familiar with the methodology of CPM Scheduling and its use as a tool on construction projects. The dynamic and assiduous Project Manager after organization of his or her game plan will begin to methodically gather all timely and adequate CPM planning schedule input data.

The planning philosophy of the perspicacious Project Manager must include a complete listing  of all activities with work day durations, that depended on quantities and crew sizes assigned to each activity. This listing is called WBS – Work Breakdown Structure that must br extremely accurate, reasonable, reliable, correct, factual, realistic sufficient, and stalwart from all parties to the contract documents to the project. The Construction Project Manager Expert Witness must know all planning requirements of the PMI publication PMBOK.

The Construction Project Manager Expert Witness must examine and critique the daily reports, submittals, monthly billings and photos.  The Project Manager must educate the Judge and Jury as to how he or she will resolve the problem of controlling the enigma related to the overall use of the project CPM schedule, including each and every monthly update. Also, the planning phase is the time to study the project specifications as to the CPM schedule requirements.

During the monitoring and update phases of the CPM schedule the Construction Project Manager Expert Witness must query all monthly updates, check that all change orders were added and check any time extensions  applied for and/or approved.  Question if any Time Impact Analysis were performed at a given CPM schedule update and evaluate same. The Project Manager must research and study the science of circadian rhythm in order better manage their role as an expert witness.