Forensic Delay and Quantum Analysis
DAC Experts are appointed to provide an in-depth Forensic Delay and Disruption Analysis for complex construction projects which suffer from engineering or construction delays, and relevant cost overruns.
Our Experts have been appointed in some of the most challenging construction claims and disputes around the World, and have been cross-examined in High Court litigation and alternative dispute resolution (ADR – arbitration, mediation and adjudication). This includes cases under the Rules of the ICC, UNCITRAL, LCIA, DIFC, SIAC, and others.
Our work covers a broad range of projects:
- Geothermal Plants
- Infrastructure / Water and Gas Facilities
- Gas Storage Facilities
- Gas Compression Plants
- LNG Plants / Facilities
- Manufacturing and Process Plants
- Oil and Gas Rigs / Platforms
- Power Plants / Co-Generation Plants
- Recycling Plants
- Shipping (New-build and conversion)
- Solar Power Plants
- Steel Manufacturing Plants
- Waste and Water Treatment Facilities
- Waste to Energy Plants
- Wind Farms
DAC Consultants have presented in many conferences about Delay Analysis methodologies, and continue to train forensic planners and construction engineers in this growing service line for our Company.
Our Experts have been appointed in over 50 occasions, and have been cross examined in High Court and International Arbitration cases. Also, many others in our team have acted as Experts in relation to time and cost matters in large arbitrations.
Our Delay Experts also combine their technical knowledge to support the insurance industry in claims related to Business Interruption (BI) and Delay in Start Up (DSU), through our services in Timeline Forensics.
For DAC, the most appropriate approach to time and delay analysis is one which provides answers to the following questions:
- What was planned
- What actually happened?
- What was the critical delay actually incurred? and
- Which events/issues actually caused delay to the critical path
We consider that a Delay Expert must not only look at the face value of schedules, and to interrogate its activities, but also, it needs to consider all contemporaneous records from the Project, so that he/she can determine the true cause and effect of a delay event that actually affects the Critical Path of the Project; which can change during the course of the Project.
The Delay Analysis needs to be more of a fact-finding mission, it needs to provide an Expert opinion to help the Parties understand the details of how the Project actually evolved, what would be expected from a Project Management perspective, what Variations or changes could have caused a time impact on the Project, what productivity issues were suffered by a Contractor (and why), and what elements contributed to the delay (or potential delay) in a Project.
The Quantum Analysis, which is normally linked to the Delay Analysis for Prolongation and Disruption calculations, needs to use Contract and Project factual data, needs to be methodical, and most importantly accurate.
Both the Delay and Quantum Analyses need to be produced in a way that helps the Judges or Arbitral Tribunal in understanding the case, the Parties positions, and to allow them to make a decision based on factual information complemented with Expert opinion.
The Society of Construction Law provides a good guide for the best methodologies to be used in construction disputes, both by Delay and Quantum Experts.
“The object of the Protocol is to provide useful guidance on some of the common delay and disruption issues that arise on construction projects, where one party wishes to recover from the other an extension of time (EOT) and/or compensation for the additional time spent and the resources used to complete the project. The purpose of the Protocol is to provide a means by which the parties can resolve these matters and avoid unnecessary disputes. A focus of the Protocol, therefore, is the provision of practical and principled guidance on proportionate measures for dealing with delay and disruption issues that can be applied in relation to all projects, regardless of complexity or scale, to avoid disputes and, where disputes are unavoidable, to limit the costs of those disputes. On certain issues, the Protocol identifies various options, with the choice of the most appropriate being dependent on the nature, scale and level of complexity of a particular project and the circumstances in which the issue is being considered. On other issues, the Protocol makes a recommendation as to the most appropriate course of action, should that be available”.
The Protocol shows a view of how to deal with core principles, such as Extensions of Time (EOT), programmes (schedules), effects of Delay, Concurrent Delay, Acceleration, Global Claims, Disruption Claims, Float, Valuations, and others.
We understand that derailed Projects may not have all records as we would wish to have them, therefore, the experience of the Expert becomes quite important when performing an analysis with the limited or sometimes inaccurate information.
This (between other factors) would affect the type of methodology that Delay Experts have to follow, which normally takes the following approaches:
- Planned vs. Actual (total time approaches);
- As Planned ‘impacted’ analysis;
- Collapsed as-built analysis;
- Time impact analysis;
- “Windows” analysis.
The method depends on:
- A Retrospective vs. Prospective Analysis;
- Particular requirements of the contract;
- Value of the dispute;
- Time available;
- Records available; and
- Programme information available.
The methodology used needs to be chosen by the Expert(s), and ideally if there are Experts assigned by each Party, then they both need to agree on a methodology so that their respective analysis and conclusions can be easily interpreted and compared by others (e.g. members of the Tribunal).
DAC Delay Experts would be assigned depending on the type and complexity of the Project, especially as the Delay Expert not only needs to know about scheduling and methodologies, but really needs to understand the Industry and technical aspects of the Project under dispute.
Our Experts are typically supported by Forensic Engineers and Associates in order to prepare detailed reports. This of course varies on a case by case scenario.
Similarly, our Quantum Experts are supported by Associates to help them in organising and digesting all the data available in the Project, and prepare proper forensic quantum reviews that as mentioned above, are accurate and logical.
We highly recommend our Clients to instruct us early in the process, so that our Experts can have enough time to go through all the available evidence, present it properly in their reports, and also to have the opportunity to request further information on a timely manner. The key for DAC is to prepare a solid opinion from the First Report. Whilst new information could update certain opinions, the more robust the First Report is, and the more engaged the Expert is with the investigation, the better the outcome of the case and especially the Hearing would be.