The Holloway Consulting Group, LLC are experts at analyzing opposition construction expert opinions and issuing rebuttals as appropriate. Here, Steve Holloway, working as the Owner’s construction expert witness, we were charged with rebutting construction expert opinions of the GC’s expert, Bill Schwartzkopf. The dispute involved the design and construction of a mixed-use project in Denver which was delayed two- and one-half years. The Owner’s assessment of approximately $1,000,000 in liquidated damages resulting from delay to substantial completion was the core of the damages.
Schwartzkopf opined that owner-caused delays were concurrent with GC-caused delays over the entire duration of the project. Although he did not perform any type of schedule delay analysis, he testified that “he just knew concurrent delays were there” … somewhere. In over one thousand cases, we do not recall encountering a more baseless opinion.
CONCURRENT DELAY
Incidental Issues
In investigating which events have caused delays, the principles of construction causation and common sense must be applied. For example, not every administrative and construction event should be included. Certain events, while occurring at the same time, are not of equal causative persuasion and are therefore excluded. For example, an Owner postponed its approval of the Contractor’s paint sample for six months. However, the owner approved the sample before the painter actually needed the Owner’s decision on the paint, Owner has done nothing to jeopardize progress of the Work. While it’s true that the Owner delayed approval of the paint sample, the delay involves minor administrative work that does not affect the construction critical path. As such, the owner’s delay in choosing paint would be excluded from a delay analysis.
Mixed Use Project
The causal factors raised by GC and its expert Schwartzkopf were largely of an administrative, incidental and minor nature. These minor issues paled in comparison to the numerous major critical path delays caused by GC and its subs. One of the most significant examples of GC’s major critical path delays was their decision to bifurcate the project. GC decided to complete the Office portion first, and the Residences second (rather than concurrently), thereby guaranteeing late substantial completion. GC could have stayed on schedule, but it failed to apply the tradesmen necessary to build both concurrently and complete Work at the rates needed to meet the substantial completion date.
It is well settled in the delay analysis and legal community that, if the occurrence of an Owner event is incidental and simply provides slippage to minor work (not to critical path or substantial completion), the contractor is not entitled to an extension of time entitlement and the Owner is entitled to assess liquidated or actual damages from the Contractor’s concurrent delay. This principle is spelled out in detail in AACEI’s Recommended Practice 29R-03 Forensic Schedule Analysis. These guidelines have become popular schedule analysis references in expert reports.
Concurrent delay occurs in situations, for example, where the Work is proceeding on schedule and two events happen. If either event had happened on its own, it would have caused delay to substantial completion. One is an Owner event, while the other is a contractor event. In such circumstances, both Owner and Contractor are responsible for two concurrent causes of delay. Importantly, Holloway did not find any material instance of concurrent delay in this matter.