Deceptive Schedules

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2009 AACE International Transactions

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CDR.S04

Deceptive Schedules:What Can We Do About Them?

John P. Buziak, PE and Jonathan B. Head

ABSTRACT At the meeting the four experts lamented the state of scheduling. They saythey see widespread abuses of powerful software to produce badly flawed or deliberatelydeceptive schedules that look good, but lack mathematical coherence or common sense

about how the industry works. [2]. This was the bottle of champagne broken across thebow of the SS College of Scheduling at its launching. Since that time, practice standardshave been published and professional certifications implemented. It will be years before weknow if we have moved the meter on the quality of schedules in general. But with thepublication ofAACE International Recommended Practice 29R-03 Forensic ScheduleAnalysis, we ought to be able to detect individual flawed and deceptive schedules,particularly where the deception is the result of logic manipulation [4]. Can we? And if wecan, what can be done for parties deceived by such schedules?

Keywords: Delay, forensic analysis, recommended practices, schedules, and legal

remedies

hat do we mean by deceptive schedules? Over the course of a long project, theschedule will change many times. In the course of normal progressing, thescheduler will add actual dates to the project database and erase or modify the

logic to reflect the as-built schedule. For the most part, these changes do no harm, as longas the baseline is preserved. In some instances, the scheduler makes changes or usespractices intended to evade a contract requirement or coerce a stakeholder into taking agiven action. For the purpose of this paper, we consider deceptive those schedule features

introduced for any purpose other than to portray the true historic project conditions or toforecast the coordination of future activities reliably.

Sometimes the best advice is old advice. Two thousand years ago, Cicero, Romes greatestorator (and lawyer) wrote that no bad act is ever expedient, arguing that the moral harmcould never be outweighed by the short-term gains achieved. He wrote this irrespective ofthe discovery of the wrongdoing, but also, being a savvy investigator himself, with therealization that the truth will win out[3].

W


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We posit that deceptive schedules do not help anyone in the end. In an attempt todemonstrate why, we review some common reasons that schedules do not improve and offertwo specific examples where applying standard analyses uncovers deceptive information inthem. Lastly, we talk about what parties can do to avoid deceptive schedules or to seekremedies for losses that such schedules cause when they are used. We write primarilyassuming that the contractor builds the schedule and reports it to the owner andsubcontractors, except where otherwise noted.

Deceptive schedules are bad for several reasons. As a contractor, you may be fooling yourowner. This is certainly not good for client relations in the future and deprives you of avaluable partner, a well-informed owner. Additionally, you may be fooling yoursubcontractors. This appears to be an even worse self-inflicted wound, because most generalcontractors self-perform very little work these daysimagine a brain that sent false signals tothe bodys arms and legs. In the end, you may be fooling yourself and most likely are. InSection II of this paper, we describe how to detect two common types of deceptiveschedules. In Section III, we describe how the owner or the subcontractors may sue you for

it, if they do catch you.

How to Detect (At Least a Couple of) Deceptive Schedules

People would not create intentionally deceptive schedules if they did not either believe thatthey would not get caught, or that there is no harm in it. Skilled practitioners havenumerous tools to introduce deceptive features into schedules. A short list includescalendar manipulation, lead-lag manipulation, defective logic, and over-progressing (postingfalse actual dates). This list is hardly exhaustive and is limited only by the imagination, orineptitude, of the practitioner. The purpose of this section is not to catalog the wide range

of observed deceptive practices, but to examine the available tools for identifying deceptivefeatures, particularly logic manipulation, applying them to two types of common scheduleproblems.

One of the most common tools of the deceptive scheduler is logic manipulation, which slipsby if owners do not inspect the validity of the logic. Two widely-offered reasons for notvalidating schedule logic flow from these beliefs and play into the hands of dishonestschedulers. The first is that schedule logic is inviolable. Even though the 29RRecommended Practice provides criteria for correcting logical flaws, many practitionersconsider an alteration to the logic of a schedule in the course of validation to be

manipulation. The gap in our practice that this belief creates can allow dishonestschedulers to manipulate logic because nobody is likely to correct it after the fact.

Another defense for not properly validating logic is that schedules are self-correcting.Some argue that after properly progressing and/or validating an as-built schedule we know(within an acceptable range of error) when activities were completed on the project, nomatter how flawed the logic was. One may even be able to detect the eventual critical path.Hence, the process is self-correcting. Even setting aside the predictive value of a schedule,


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an as-built schedule cannot be compared against itself to prove anything of value; it must becompared with a baseline or some intermediate update. If there is defective logic in abaseline or update schedule, then the as-built comparison will be defective as well.

Schedule Validation Procedures (SVPs) Available Under Recommended Practice 29R-03In the words of the Recommended Practice (p. 17), The primary purpose of the SVP is tominimize the failure of an analysis method based on the flawed use of source data[4].Each of the methods cited below has inherent weaknesses that could allow a dishonest actorto slip a deceptive schedule past stakeholders. The use of multiple validation methods andanalysis protocols in concert can detect and neutralize most deceptive schedulingtechniques. In some instances, there may be clear advantages to employing multiplemethods, as occurred in Bell BCI v. United Sates, where a time impact analysis (TIA) and awindows analysis were used in concert; the court believed the analyses were mutuallysupporting and unassailable employed together [1]. In other instances, application ofmultiple validation procedures may indicate an optimum approach.

SVP 2.1 Baseline Schedule Selection, Validation, and Rectification. More than anyother method in the Recommended Practice, SVP 2.1 focuses on the sequencing of theeffort, i.e., the logic. The protocol ensures that the validated schedule is fully, logicallyconnected, and has an appropriate number of entry and terminal points. It assesses thecompleteness of the scope and the plausibility of the logic. This comprehensive methodwill likely detect deceptive features introduced from the start of the project.

In the enhanced portion of the protocol, there are rules to correct defective logic andunrealistic calendars for creation of an acceptable baseline. To determine the propriety of

logic changes, the analyst must ask if it is possible to build the project in the mannerindicated in the schedule and still be in compliance with the contract; if so, then do notmake any subjective changes to improve it or make it more reasonable[4]. Takingadvantage of this option bars the analyst from employing protocol 3.3 Observational/Dynamic/ Contemporaneous As-Is and 3.4 Observational/ Dynamic/ Contemporaneous Split,i.e., Windows Analysis.

SVP 2.2 As-Built Schedule Sources, Reconstruction, and Validation. This methodverifies a schedule using actual dates. By comparing the as-built schedule with historicaldocuments and participant interviews, we can detect an inaccurate or fraudulent as-builtschedule. But in many instances, both parties will readily agree the project was deliveredlate and may disagree on very few of the details of what actually happened. The questionfor the forensic analyst is why they happened? What was the cause and effect? The analystmust return to the logic to make these determinations. Generally, this method does notexpose deceptive features, such as calendar or logic manipulation.SVP 2.3 Schedule Updates: Validation, Rectification, and Reconstruction. Looking atschedule updates individually provides little additional advantage over SVP 2.2. However,comparing schedule updates to each other and to the baseline provides multipleopportunities to detect deceptive features. This is especially true when tools such as


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Schedule Analyzer or Digger are employed, which enable analysts to reliably andrapidly detect modifications to the schedule.

SVP 2.4 Identification and Quantification of Discrete Delay Events and Issues.Deceptive schedules exist precisely to defeat this validation technique. In nearly everyinstance of schedule deception, the practitioner is attempting to obscure the true cause oreffect of the delay. This method depends entirely on other successful validation efforts, andit is only after those efforts are complete that the analyst can employ this protocol.Depending on the methods used to deceive, the protocols described above represent anadequate toolkit for most stakeholders to protect their interests.

Two Examples of Deceptive SchedulesJust as camouflage hides something in plain sight by blending in with the surroundings,adept schedulers know how to take cover in the everyday project environment. Both of thescenarios reviewed below use camouflage to achieve their goals. In the first, the schedulerblends common progressing practices with deception techniques that appear nearly

identical, leaving the analyst to divine the schedulers true intentions. In the second, thescheduler barrages the owner to raise the noise level so high that the deception goesunnoticed. Careful manipulation of software features and lack of expertise on the part ofthe stakeholders greatly reduces the risk of discovery of the deception.

Scenario #1 The "Failing Girdle"The contractor was hired by an independent power producer (IPP) to build three combinedcycle power plants on an existing coal-fired steam plant site. Contractor agreed to liquidateddamages for late delivery of each unit and of the steam turbine. The contract also requiredthe contractor to implement a recovery plan if it projected delivery of any unit five days or

more after the contract date.

Having worked for the IPP before, the contractor knew the IPPs custom was to rely heavilyon its project engineers in the field. While the contract required monthly submission of theschedule files on a disc with the pay request, the project engineers relied on the contractorsscheduler to provide them with hard copy printouts. The owners document clerk just filedthe electronic schedules and the IPP retained no scheduling consultant.

Figure 1 shows a summary version of the precedent diagram for the schedule atmobilization. The actual schedule contained nearly 1500 activities from mobilizationthrough commissioning. Note the dependencies between units for the foundations and thecommissioning effort. The dependencies are resource ties that imply the same crew willplace each set of foundations. They also represent the single General Electriccommissioning crew that the owner contracted for. The schedule shows that no float isavailable on the project.


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Figure 1Summary Version of Precedent Diagram at Mobilization


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Figure 2Gantt Chart Corresponding to Figure 1


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Figure 2 is the corresponding Gantt chart. Note that the critical path passes from the sitework through all the foundations, then through Unit #3 over its controlling path to steamsystem commissioning. A notable near-critical path is the gas pipeline under site utilities.This path has five days of float at project start and, by its nature, is highly susceptible toweather delays. The owner observes 90 days of float associated with the steam turbineinstallation. Rather than delivering the turbine and incurring cost and risk storing it, theowner delayed delivery of the steam turbine, reducing the available float along this path.

By the second month of the project (Figure 3), the contractor achieved some early starts onthe first sets of foundations. It is clear that the contractor could have shown the foundationfinish-to-start relationships as start-to-start, with some amount of lag. In this instance, theschedule correctly portrays the as-built logic for the foundations, but not the pipeline. Thepipeline started late and the schedule predicts completion of the first section a month late,yet the pipeline is not on the critical path! The contractor made a logic change for the lastsegment of the pipeline, converting a finish-to-start precedence into a start-to-start with just

enough lag for three days of float. Does this logic change reflect the as-built condition, aplanned workaround, or an attempt to hide the fact that the pipeline is on the critical pathso the contractor can avoid contractually-mandated acceleration?

Using this summary schedule, one could argue that a competent project engineer shoulddetect this elementary deception. However, the detailed schedule used to manage theproject contained over 1,500 activities, with the deceptive modifications appearing in thelatter third of the schedule. Project engineers have myriad responsibilities, live much morein the here and now, and do not study every line item in such a schedule. Depending onthe coding, grouping, and sorting used to produce the schedule reports given to the project

engineer, the modified activities may not be adjacent. In a very large schedule, clever use ofgrouping and sorting techniques can dramatically increase the difficulty of detecting overlapin logically related bars.

Figure 4 portrays the schedule in the fourth month of the project. The schedule reflects latestarts and extended durations across all the units. The contractor mitigated the delays onUnits #1 and #2 by achieving an early start on the HRSG erection. An early start on the #3HRSG is anticipated and necessary to hold to the commissioning dates on Unit #3. Progresson the pipeline continues to be less than anticipated, and the scheduler is only able to keepthe pipeline off the critical path by altering the sequential logic to show more parallelactivity in the pipeline sequence.

The owner is cognizant of the late starts and is satisfied with the contractors efforts to meetthe schedule. It is comfortable enough with contractors progress to request a proposaladding combustion enhancements recommended by the turbine vendor. The proposedwork requires adding support system skids and modifying the turbine modules. The first twounits require rework, and the addition of the skid; the last unit is simple add with littlerework.


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Figure 3Second Month Project Update


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Figure 4Fourth Month Project Schedule


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The contractor responds with an acceptable cost proposal and the revised schedule in figure5, adding activities to build the new skids and increasing durations to reflect other workassociated with the change. However, the scheduler omits that he has restored the originalfinish-to-start relationship in front of the HRSG installation. The owner expresses someskepticism over the revised schedule, but the project engineer assures the owner that themodifications to the schedule, as explained to him by the scheduler, are reasonable. Shouldthe owner accept the change?

Scenario #1 Schedule Validation. We start by performing a baseline validation (SVP 2.1 )on the schedules represented in figures 1 and 2, and can rapidly determine the network isfully connected with a single critical path passing though all the site work and the last unitto be constructed. Notably, there is no total float in the schedule. A scheduling consultantmight find fault with hard-coding the logic between the site work and commissioningefforts, preferring they be resource-loaded and leveled. But such changes would clearly fallunder the category of optimization, rather than necessary validation.

The as-built schedule validation procedure (SVP 2.2) would shed little additional light onthe issues being contested. Actual dates are reliably reflected in the schedule and portray amixture of early and late starts/finishes, as one would expect. Overall, the as-built supportsthe contractors attribution of six-week delay to the combustion modifications.

By employing the update validation procedure (SVP 2.3) using an analysis tool such asDigger or Schedule Analyzer, the analyst can readily detect the presence of all thedeceptive features when comparing baseline to update, then update to update. While thesetools will not tell you why a particular action was taken, they identify changes that should

generate probing questions.

For scenario 1, using multiple validation tools would have allowed an owner to avoid thisincremental schedule failure and, potentially, unfair compensation to the at-fault contractor.


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Figure 5Revised Schedule From the Contractor


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Figure 6Selected Portion of the Baseline Schedule


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2. Scenario #2 The Missing LinkA large mechanical contractor enters into an agreement with an international contractor toupgrade a coal-fired power plant, including installation of newly-designed mercuryabatement systems, monitoring system upgrades, and combustion systems improvements.The contract requires the mechanical contractor to create a production schedule in P6format for inclusion in the primes master schedule.

Not in the habit of producing its schedules, the mechanical contractor hired a contractscheduler to produce its schedule. Typically, the mechanical contractor relied upon theprime to provide a construction schedule, and expected the contract scheduler to workthrough the end of the project. Shortly after signing the subcontractor agreement, theprime contractor issued a request for proposal to replace some major plant components.When negotiating the changes, the prime contractor told the mechanical contractor thatmobilization will be delayed six weeks.

The contract scheduler announces he is taking another position in Dubai, leaving themechanical contractor in the middle of a major negotiation without scheduling support anda looming mobilization on a multi-million dollar project. The mechanical contractorappeals to the prime contractor for relief on the schedule requirement. The primecontractor agrees to use its own scheduler to modify the existing schedule to include thenew work and make necessary changes. The mechanical contractor agrees to perform theupdates on the subproject and send it to the prime contractors scheduler to update themaster schedule. The resulting schedule was incorporated in to the contract by changeorder, along with the additional scope.

Near the end of the project, the mechanical contractor became alarmed at the convergingfactors of skyrocketing actual worker numbers, numerous unanswered requests for equitableadjustment, and notification by the prime that it intends to withhold at least 20 days worthof liquidated damages. The mechanical contractor engages a claims consultant to assesshow to proceed.


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Figure 7Gantt Chart Corresponding to figure 6

Scenario 2 Schedule Validation. The consultant begins by examining the baseline

schedule incorporated by change order. The 1500-plus activity schedule included morethan a dozen completely detached fragments and hundreds of danglers (activities that lacka proper successor or predecessor). In order to assess the value of the logic portrayed in theschedule, the consultant conducts extensive interviews with the project leadership andattempts to complete the logic selectively to find a valid critical path. Figure 6 shows aselected portion of the baseline schedule with the corresponding Gantt chart depicted infigure 7.

A key feature of the baseline schedule is found in activity OUT1100, Outage Start. Thisactivity had an actual date of August 20 posted. Note the column width has been narrowedto hide the telltale A; the data date is July 23. To obtain this result, the scheduler needed

to select the actual dates option when re-computing the schedule. Another defect in theschedule is a missing logic tie from activity INS1040 Prep Units for Outage to OUT1100.Clearing the actual dates from OUT1100, establishing a finish-to-start tie from INS1040 toOUT1100, and re-computing the remaining network yields the Gantt chart in figure 8.


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Figure 8Gantt Chart Showing Re-computing of the Remaining Network

The mechanical contractor agreed to a schedule that apparently hid 43 days of the prime

contractors delay! Figure 9 illustrates one of the major implications of the deception. Theblue curve shows original baseline worker estimate. The mechanical contractor starts sixweeks later than the original agreement and with additional scope. The dotted blue lineindicates the new baseline. With numerous legitimate parallel paths to work and keenlyaware of the clause in the contract that could trigger a recovery plan if it falls behind, themechanical contractor initially and intentionally over staffs the job. At first, the mechanicalcontractor is able to regain progress, but the impact of the additional workers is diminishedas the number of parallel paths disappears. Trade-stacking chokes off the recovery. Fromthe 11-week point to the end, the mechanical contractor can only hold his own, in spite ofstaffing the project well above the planned level.


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Figure 9Planned Versus Actual Worker Hours

In Scenario #2, as in Scenario #1, the analyst could have helped the mechanical contractoravoid signing a change order that plainly did not represent its subjective intentions at thetime of signing. The next section details potential remedies for the parties harmed in bothof these scenarios.

What Can We Do About Deceptive Schedules?This section extracts some general principles for detecting schedules, based on the scenariosdetailed above, and reviews general legal remedies for parties harmed by deceptiveschedules.

General Principles for Detecting Deceptive SchedulesFirst and always, be an informed consumer. Learn to speak scheduler. AssociatedGeneral Contractors and James OBrien, in particular, have produced highly readable textsthat enable construction experts to learn network analysis scheduling. While building agood critical path schedule approaches an art form on complex projects, analyzing one forcompleteness and reliability does not. If the schedule is prepared using a recognizedapplication, there is a wide range of capable experts who can analyze it for you quickly andaffordably.

Our mothers were right about an ounce of prevention. The most reliable delay analysistechniques rely on the existence of a dependable baseline. While the 29R is primarily aforensic tool, it provides certain protocols that are valuable during project execution.Implementing SVP 2.1 as early as possible in the project will ensure a minimally executable


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schedule, and also provides the opportunity for the analyst to suggest improvements thatmay ultimately result in savings for the owner and the contractor.

Stakeholders must insist on periodic electronic submissions of the scheduleandthoroughly review them. In addition to having a deterrent effect on deception, it will alsopreserve a wide range of options for contemporaneous and subsequent analysis. Tools suchas Digger and Schedule Analyzer require two schedules in electronic format tocompare. Once again, having these updates preserves your access to the most reliablemethods available in the 29R. Time is a precious commodity, so leverage the technology atyour disposal to drill down to the problem areas rapidly.

Know your own limitations. While there are good scheduling tools, there are some evenbetter experts. Do not let your ego cost you money. If you suspect you are getting in overyour head, call in an expert. If you find yourself too time-constrained to do more than acursory job, call in an expert. If there is enough money on the table to take your companydown, call in an expert.

Detecting deceptive schedules requires, first and foremost, data. If an owner or constructionmanager is going to specify a network analysis schedule, it is a small additional step torequire the submission of the native schedule files at the beginning of the project and on aperiodic basis thereafter. Daily logs are also of considerable value to validate as-built data.With the aforementioned data in hand, certain elements of the 29R can be put toimmediate use at the start of the project. A schedule validation performed in accordancewith the appropriate schedule validation procedure (SVP 2.1) helps ensure realisticschedules. None of the tools cited earlier in this paper will yield useful information if thenetwork underpinning the schedule is defective.

Once construction begins, constant vigilance is the best tool for detecting deceptive features.Using Digger or Schedule Analyzer to review each schedule submission affects themaintenance of the schedule on two levels. On the most obvious level, stakeholders canknow and critique the changes being made to the schedule. On a less obvious level, theconstruction manager and scheduler will know that any action they take will be in full viewof the ownersunlight is the best disinfectant. Even when the schedules author may nothave high regard for the analysis skills of the owners management, he should realize thatpeculiar changes to the schedule are likely to be detected and questioned. Suspectexplanations could cause an owner to engage the services of an expert if it had not already.

Owners often attempt to limit the opportunity for deceptive schedules by banning abusedpractices via the scheduling specifications. Prohibiting negative lag is one popular practice,as are specifying only finish-to-start relationships and allowing no lead-lag modifiers.However, overly restrictive specifications may actually promote deceptive practices bypreventing the scheduler from modeling the means and methods of the contractoraccurately. In these instances, dummy activities or less than optimal levels of detail may benecessary to produce the network. These features create background noise against which


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the analyst will have to detect deceptive features, and hinders the goal of open and honestjob communication.

Rights and Remedies for Parties Harmed by Deceptive SchedulesIf, as we propose above, a schedule is a communication tool that the parties intend to relyon, then there may be consequences to communications that are wrong, particularly tothose that are wrongly motivated. The law provides parties with certain rights, some ofwhich arise from contractual obligations, others from tort law, and yet others from thenature of parties business association. The common remedies for the breach of those rightsare breach of contract, breach of warranty, fraud (misrepresentation in some jurisdictions,but it means the same thing), deceptive trade practices acts, and breach of fiduciary duty.We discuss each in turn below.

A contract is a mutual agreement to do something and it must be supported by value, i.e.,not simply a voluntary undertaking with no expectation of payment. Failure to do what thecontract requires or to give value breaches the contract. An assumption of contract law is

that parties deal with one another in good faith and cooperation. Closely related to breachof contract is breach of warranty, which relates to promises of quality in workmanship,materials, or (as is most relevant here) information. Particularly noteworthy is the warrantyof fitness for a particular purpose, where the contractor not only warrants that the service orinformation is of a reasonably good type but is specifically tailored for the owners purposes.Obviously, a contractor who did not know the owners purposes would be ill-advised to givesuch a warranty. Actions for breach of contract and warranty commonly involve the breachof one of the duties mentioned above.

Because the parties define their obligations to one another in the contract, it is impossible to

give a comprehensive answer to what might constitute a breach of contract. Failure toprovide schedules at all or omitting them on a routine basis might be a breach of contract,regardless of the content of the schedules. If there were a qualitative requirement forinformation provided, such as a certification of truthfulness or simply stating that a partywould provide an accurate report, then failure to live up to the standard would likely be abreach of contract, assuming it related to material information. Because it relates to thequality of information, it most likely also constitutes a breach of warranty. Suchrequirements are much more common in design-build contracts, so parties to such contractsshould be careful about their representations of information quality. Without such aqualitative requirement, supplying mere incorrect information might not violate thecovenant of good faith and cooperation, unless it was given with no attempt to verify itsaccuracy. In any event, knowing or intentional misinformation almost certainly indicates alack of good faith and is most often a breach.

In addition to duties that parties agree to in their contracts, the law imposes duties throughtort law and through laws passed by legislatures, known as statutory law. The purpose of tortlaw is to shift the burden of wrongs to people who damage others, but where those parties donot have a chance to define their responsibilities to each other by contract liability for acar wreck is the paradigm of tort law. One possible tort action that owners or contractors


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could bring related to schedules is for fraud, which the law defines as a false statementsomeone reasonably relies on to his detriment. While common law fraud usually limiteditself to intentional misrepresentations saying that the pig isnt pregnant when you knowit is, rolling back an odometer and saying there are only 1000 miles on the car, and otherout-and-out lies modern tort law has lowered the standards for the bad state of mindrequired. While all reputable businesses know that it is not all right to lie, some may notknow that they can be liable for false statements made recklessly or negligently, whichusually involve the speaker or writers failure to check out the truth of its statement. Anexample of this in our context might be someone in upper management stating that theschedule contained no logic changes without first checking with the scheduler. There iseven a genre called innocent fraud, a lawyerism if ever there were one, but it is treatedmuch more like a breach of contract. Beyond the fact that fraud is a dirty word and canaffect a parties business reputation, fraud that involves knowing or intentional misstatementcan expose businesses to punitive damages awards that are limited only by the fact-finderssense of what is necessary to punish the party for, and deter them from, engaging in thefraud.

A type of statutory law that could apply, though not likely to government contracts, is astates Deceptive Trade Practices Act. The teeth in such statutes and the contexts towhich they apply vary widely in different states, but the gist of the action is that the plaintiffalleges someone did something unconscionable, false, misleading, or deceptive.Assuming the statute in a relevant state applied to construction projects, it is not difficult tosee how manipulating a schedule could meet the definition given above. An additionalattraction for plaintiffs lawyers is that there is usually no need to prove that the partyintended to mislead. If a plaintiff proves liability, courts can award actual damages, statutorypenalties, attorneys fees, and, in some cases, criminal liability.

The last type of legal remedy discussed here is the action for breach of a fiduciary duty.While the law regarding fiduciaries varies widely from state to state, the basic definition of afiduciary is someone who has a duty to act in anothers best interests due to a relationship ofconfidence or trust. Unless modified through their partnership agreements, partnerships arealmost inherent fiduciary relationships. Depending on state law, a joint venture agreementor a public-private partnership might be construed as a partnership, and thus as a fiduciaryrelationship. These actions are particularly dangerous because they are, by their nature,accusing someone of having been the fox guarding the henhouse. An example could bethat one part of a joint venture effort could accuse another, who controlled the schedule, ofhaving affected the overall profitability of the job due to a deceptive schedule. If proven,parties can receive awards to make good their losses and, in some cases, punitive damages.

y reviewing two common types of deceptive schedules born of logic manipulation bya scheduler, we have demonstrated that a diligent stakeholder can discern when it isbeing offered a deceptive schedule and decide to exercise its available contractual

rights. When those rights are transgressed, parties have legal remedies that range from thosedefined by contract to those implied by law, based on the relationship of the parties. Thereare meaningful legal remedies for those harmed by deception, but as an party who has

B


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litigated knows, it is much better to learn of and avoid deception during the project than totake a chance at vindication later on. The best tools currently available for this earlynotification of deception are the protocols defined by 29R..

REFERENCES1. Bell BCI v. United Sates, 72 Fed. Cl. 164, 169 (2006).2. Richard Korman with Stephen H. Daniels, Critics Cant Find the Logic in Many of

Todays CPM Schedules, (ENR, May 26, 2003).3. Andrew Roy Dyck,A Commentary on Cicero, De Officiis 556 (Univ. of Michigan

Press 1996).4. Recommended Practice 29R-03 Forensic Schedule Analysis, (AACE International,

2003).

ABOUT THE AUTHORSJonathan Head devotes himself to trial practice. He has experience trying cases to juries,judges, and arbitrators, principally in the construction, manufacturing, and government

procurement fields. Through a mixture of industry knowledge, innovative litigationmethods, and perspective informed by an engineering background, He strives to delivereffective and vigorous advocacy that meets clients' commercial goals in disputes. Mr. Headis also one of the leading practioners in the field of e-discovery. He advises clients on how tomake e-discovery expense proportionate to the case at hand, and on how to create systemsbefore litigation that make dealing with e-discovery workable. By helping clients placelitigation needs into a larger information management content, Jonathan assists clients inkeeping e-discovery in its proper context.

John P. Buziak, PECritical Path Mechanics,LC2860 West Navy Blvd, Suite 200Pensacola, Florida 32050Phone: +1.850.457.4142Email: [email protected]

Jonathan B. HeadBradley Arant Boult Cummings, LLP1819 Fifth Avenue North

Birmingham, AL 35203Phone: +1.205.521.8054Email: [email protected]

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Deceptive Schedules