Legal – Ab Initio

Ab initio: from the very beginning of the record

Ab initio means “from the beginning.” Delay and false-claim disputes are won or lost on the original baseline, the contemporaneous updates and the contract record. We start there, and we analyze every step forward.

Title 31 – False Claims ActNJ & NY equivalentsPython-assisted CPM forensics
Title 31 expertise

The False Claims Act, federal, New Jersey and New York

Public construction payments run on claims: pay applications, certified payrolls, schedule updates and change-order requests. When a claim for public money is false, three parallel statutes can apply. We know all three.

FederalNew JerseyNew York
StatuteFalse Claims Act, 31 U.S.C. §§ 3729–3733New Jersey False Claims Act, N.J.S.A. 2A:32C-1 et seq. (P.L. 2007, c. 265)New York False Claims Act, State Finance Law Art. 13, §§ 187–194
Core liability§ 3729(a)(1): presenting or causing false claims; false records or statements material to a claim; conspiracy; and concealing or avoiding an obligation to pay the government (“reverse false claims”)N.J.S.A. 2A:32C-3: civil liability for false or fraudulent claims, tracking the federal categoriesSame categories, covering claims on the State and on local governments
“Knowing”§ 3729(b)(1): actual knowledge, deliberate ignorance or reckless disregard; no specific intent to defraud is requiredKnowledge standard patterned on the federal actActual knowledge, deliberate ignorance or reckless disregard; mere negligence or mistake is excluded
Whistleblowers§ 3730(b) qui tam suits by private relators, filed under seal; § 3730(h) retaliation protection§ 5: investigation and civil actions, including by private personsQui tam suits by private persons, filed under seal, with the Attorney General deciding whether to intervene
Burden of proofPreponderance of the evidence, § 3731(d)Preponderance of the evidence, N.J.S.A. 2A:32C-12Preponderance of the evidence, including damages
RemediesTreble damages plus a per-claim civil penalty adjusted annually for inflationTreble damages and civil penaltiesTreble damages (reducible to double for timely cooperation) and per-claim civil penalties
Time limits§ 3731(b): 6 years from the violation, or 3 years after the responsible official knew or should have known, capped at 10 yearsN.J.S.A. 2A:32C-11Ten years from the violation

Title 31 also contains the Program Fraud Civil Remedies Act, 31 U.S.C. §§ 3801–3812, an administrative route for smaller claims, and § 3733 civil investigative demands.

Standards of proof

Evidence built for the standard that applies

Civil: preponderance of the evidence

Under the federal, New Jersey and New York acts, the question is whether it is more likely than not that a false claim occurred (31 U.S.C. § 3731(d); N.J.S.A. 2A:32C-12). Our schedule, cost and contract-record analysis is built to establish, with documents, whether a claim for payment was false and by how much.

Criminal: beyond a reasonable doubt

Criminal false-claim and fraud cases (for example 18 U.S.C. § 287, § 1001 and § 1031) require the prosecution to prove guilt beyond a reasonable doubt (In re Winship, 397 U.S. 358 (1970)). Our role is to assemble a reproducible, document-based record that counsel and investigators can use at that higher standard. Charging and proving a crime remain the work of prosecutors and the courts.

Standard-of-proof ladder

How certain the fact-finder must be

Vanguard Resolve LLC is a construction management and project controls consulting firm. It is not a law firm and does not provide legal advice. Legal conclusions are for counsel, agencies and the finder of fact. Statute summaries on this page are general information and should be confirmed by counsel.

AACE RP 29R-03

The industry standard for forensic schedule analysis

AACE International Recommended Practice 29R-03, Forensic Schedule Analysis, is the reference most owners, contractors, experts and tribunals use to judge how a delay was measured. It does not pick a winner; it sets out how to classify the available methods, how to validate the schedule data first, and how to tie a delay to its cause. We build every delay analysis on it.

MIPMethodClassification
3.1As-planned vs. as-builtObservational / Static / Gross
3.2Windows analysisObservational / Static / Periodic
3.3Contemporaneous period analysisObservational / Dynamic / Contemporaneous As-Is
3.4Contemporaneous period analysis, adjustedObservational / Dynamic / Contemporaneous Split
3.5Recreated schedule analysisObservational / Dynamic / Modified or Recreated
3.6Impacted as-plannedModeled / Additive / Single Base
3.7Time impact analysisModeled / Additive / Multiple Base
3.8Collapsed as-built (“but-for”)Modeled / Subtractive / Single Simulation
3.9Multi-base subtractiveModeled / Subtractive / Multiple Base

Validate the source first

Before any method is run, 29R-03 calls for source validation. We script these checks in Python so they are complete and repeatable:

  • SVP 2.1 Baseline schedule selection and validation
  • SVP 2.2 As-built reconstruction and validation
  • SVP 2.3 Schedule-update validation
  • SVP 2.4 Discrete delay-event identification and quantification

How we apply it

  • Pick the method the contract, the records and the question support. No single method fits every dispute.
  • Defects in the schedule (missing logic, constraints, unrealistic durations) carry into the answer, so we fix or disclose them first.
  • Analyze what did happen and why, with the critical path and concurrent delay tied to documents.
  • Deliver exhibits another expert can re-run and get the same result.

Method names follow AACE International RP 29R-03; common names vary by practitioner. Source: ScheduleLens summary of AACE 29R-03.

Python-assisted CPM forensics

We put the CPM schedule in the debugger

Most schedule reviews are done by eye in a scheduling program. We also load the schedule into a scripted Python environment, so every check is automatic, repeatable and documented. That gives owners a stronger, cleaner record for answering delay claims.

STEP 1

Rebuild

Import the native schedule files, baseline and every update, and rebuild the network logic independently.

STEP 2

Debug the logic

Flag open ends, hard constraints, excessive or negative float, out-of-sequence progress, calendar anomalies and retained-logic or progress-override settings.

STEP 3

Compare every update

Trace what changed between updates: actual dates, durations, logic ties and calendars. Every edit is tied to a date and a data record.

STEP 4

Check for estoppel indicators

Compare a party’s own contemporaneous submissions (accepted updates, approved recovery schedules, signed time extensions, reservation-of-rights language) against the position taken later in a claim, and flag inconsistencies for counsel.

STEP 5

Quantify

Windows, time impact and concurrent-delay analysis, with excusable / non-excusable and compensable / non-compensable allocation.

STEP 6

Report

Scripted exhibits that anyone can re-run and get the same answer, which is what makes them credible in a hearing.

Notice of Equitable AdjustmentEntitlement & damages claims Concurrent delay & pacingECD / NND / ENDMitigation & constructive acceleration Modeled / subtractive / single simulationObservational / dynamic / contemporaneous splitObservational / dynamic / modified or recreated Litigation support to counsel
The Dispute Resolution Board corner

Shereaf Youssef, NJDOT Dispute Resolution Board approved SME candidate

Shereaf Youssef, President & CEO of Vanguard Resolve, is an NJDOT Dispute Resolution Board approved subject-matter-expert candidate. Translation: when two sides disagree about whose fault the delay is, he is the person in the room who has read the specification.

“Order in the court.” Or at least in the logic ties.
Our favorite four-letter word is “float.” It is not a gift. It is a shared resource, like the office microwave.
Concurrent delay: two people spill the coffee at the same moment and each swears it was the other one.
A schedule with more constraints than a prenup usually ends up in front of a dispute board. Ours, preferably.
Pacing delay is the art of walking slowly on purpose, with documentation.
Python is the only snake we trust near a CPM schedule. No floats were harmed in the making of this analysis.