Schedules are an
important part of proving or refuting delay and other impact claims because
they provide a detailed medium for comparing and measuring time and intent. The
use of a detailed method to present a time claim is important to establish the
claimant's entitlement to both the delay and other additional costs related to
the delay. In this Analysis, Michael Callahan and Jason Romero discuss the spoliation
of evidence, construction scheduling, and avoiding the spoliation of
construction schedules. They write:
specifications will vary from project to project. Some specifications require a
great amount of detail and obligations. The specifications can define duration
units, resource and cost load requirements, review periods for submittals,
sequencing logic and organizational sorting methods, milestone activities,
update and narrative requirements, and any other relevant scheduling
coordination requirements. The schedule specifications may even define the detail
and special schedules necessary to support a time extension request. Careful
attention must be paid to drafting these provisions rather than copying and
pasting from previously used specifications.
specifications may also require use of particular scheduling software. Agreeing
on specific software will reduce the risk of discovering multiple schedules
from different software providers. Reconciling the different software models
makes it difficult to draw accurate comparisons if the contractor submits a
baseline schedule made in one software and schedule updates made in another.
Specifications that are too burdensome or too vague will make measuring time
extensions or claims for delay more difficult. In Morganti
National, Inc. v. United States, Morganti was required to prepare a schedule and submit monthly
updates using the critical path method. The contract specifications prohibited
Morganti from adding time to the contract schedule until the time was approved
by the Federal Bureau of Prisons (FBOP) via a bilateral modification agreement.
As a result, Morganti was required to schedule and track 7,000 activities.
Neither Morganti nor the FBOP were able to compute possible delays because the
schedule had become so hopelessly confused. The specification requiring a
bilateral modification to add time, combined with the outrageous number of
activities to be tracked, rendered the schedule useless as a tool to measure
time. If Morganti had disregarded the bilateral modification specification and
wrote over the baseline schedule or altered updated schedules to conform to all
the change orders, the FBOP might have motioned for spoliation sanctions. Any
changes Morganti made to the schedules not in accordance with the
specifications could have been viewed as the deletion of relevant, discoverable
electronic evidence and subjected Morganti to spoliation sanctions.
Construction Co. v. General Services Administration demonstrates the dangers that claimants must
confront if schedule copies are not properly maintained. Although the holding
does not distinguish between paper and electronic copies, the message is clear:
if a delay claimant does not maintain copies of all its schedules, its claims
for delay may be denied.
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