WELCOME Best Practices for Managing Construction Delay and Interference Claims

© Husch Blackwell

LLP

Best Practices for Managing Construction

Delay and Interference Claims

Kenneth A. Slavens

314.345.6419

Topics to be covered

ƒ

Delay

ƒ

Acceleration

Delay – Impact on Project Participants

ƒ

For the contractor

ࡳ

Adjustments in time

ࡳ

Adjustment in costs

ƒ

For the owner

ࡳ

Loss of use

ࡳ

Liquidated damages

Escalation – Impact on Project

Participants

ƒ

More resources need to complete the project

on schedule

ࡳ

Completion date need not be delayed

ࡳ

Increased cost attributable to performing work at a

date later than planned

ࡳ

Impact of changes in sequence can cause

Disruption – Effect on Project

ƒ

Potential impact of extra work:

ࡳ

Disruption in the planned sequence of the work

ࡳ

Extend the work into inclement weather

ࡳ

Impact productivity of the trades

Delay – Why talk about it?

ƒ

For the contractor

ࡳ

May need additional time

ࡳ

May consume additional resources

ƒ

For the owner

ࡳ

Project not delivered when promised (loss of use)

ࡳ

Not generating revenue

Delay – Entitlement to Additional Time

ƒ

Contractor's entitlement to additional time to

complete:

ࡳ

If the delay is excusable

ࡳ

Potentially can recover increased costs as well

Delays – If an excusable delay

ƒ

For the contractor, an excusable delay will:

ࡳ

Justify time extensions

ࡳ

Preclude termination of the contract for the delay

Delay – Is the delay excusable?

ƒ

Read the Contract: frequently defines “excusable” delays

ƒ

Examples common in contracts or if the contract is silent

ࡳ

Owner or architect delays

ࡳ

Acts of God / Unforeseeable Events

ࡳ

Strikes

ࡳ

Owner Supplied materials

Delays – What if the delay was

foreseeability?

ƒ

Some circumstances, even if the cause of the delay is an

otherwise “excusable” event, it may not be excused

ƒ

If the event is "known or knowable," i.e.: contractor

knows that there is an impending strike when the

contract is signed

Delay – Impact of foreseeability on an

otherwise excusable delay

ƒ

Dicon, Inc. v. Marben Corp.

ࡳ

Contractor knew the owner would be late delivering

plans and specs

ࡳ

Cannot rely on this owner delay for extra time

Delay – Foundation Underlying an

Excusable Delay

ƒ

Implied term of every contract: Neither party will do

anything to prevent performance by the other party

or permit an act that will hinder or delay performance

ƒ

Owner prevents or hinders the contractor's

performance: excusable

ƒ

Changes in the work at the direction of the Owner,

Delay – Liquidated Damages

ƒ

Generally enforceable

ƒ

May need to show that the calculation of damages from

late completion is impossible or very difficult to estimate

at time of execution of the contract

ƒ

Amount is a reasonable forecast of the harm of late

completion

Delay – Liquidated Damages and the

Public Project

ƒ

For public works contracts a reasonable approximate is

not necessary

ƒ

Public body needs to only show unexcused late

Delay – Liquidated Damages

ƒ

Liquidated Damage are the owner’s sole recovery for

late completion

ƒ

Even if the actual damages exceed the liquidated

damage amount - as long a not “unreasonably

disproportionate” to actual damages

Delay – Notice of Delay

ƒ

Read the contract

ࡳ

Frequently required by the contract

ࡳ

When in doubt – give the notice even if the contract is

unclear

ƒ

Failure to give the notice can bar an extension for an

otherwise excusable delay.

ࡳ

See:

Southwest Engineering Co. v. Reorganized

Delay – It's Excusable, but is it

compensable?

ƒ

May be excusable, but does not equate to compensable

(more money)

ƒ

Excusable delay will entitle a contractor to more time

ƒ

Must be compensable to be entitled to more money

Delay – What is compensable?

ƒ

Compensable: damages are recoverable from the

party that "caused" the delay

ƒ

Neither party caused the delay: neither is entitled to

Delay – Compensable Delay

ƒ

Examples of events for which the owner may

have liability:

ࡳ

Work suspensions

ࡳ

Interferences

ࡳ

Hindrances

ࡳ

Design Defects

ࡳ

Differing site conditions

Protection from Delay Damages:

No Damage for Delay Clauses

ƒ

“No Damage for Delay” clauses – theoretically Protect

the owner from all delays

ƒ

Downside: contractor may build additional funds into the

bid to account for the risk and drive up the cost (you may

end up paying for an event that never happens)

Protection from Delay Damages:

No Damage for Delay Clauses

ƒ

For public projects:

ࡳ

Many states have statutes invalidating these clauses

on public works projects

ࡳ

Void in Missouri: Section 34.058, RSMo 2000

Delay – What Damages can be

Recovered

ƒ

Reasonably foreseeable damages caused by a

compensable delay are recoverable

ࡳ

Increased labor

ࡳ

Equipment

ࡳ

Office overhead

ࡳ

General conditions

Delay – What Damages can be

Recovered

ƒ

Owner Damages:

ࡳ

Loss of use of the project

ࡳ

Loss of revenue which would have been generated

ࡳ

Liquidated Damages

Delay Damages – Overriding

Principal to Damage Recovery

ƒ

Increased costs are recoverable

ࡳ

if the costs would not have been incurred,

Delay – Proving Damages

ƒ

Methods of proving damages

ࡳ

Total Cost Method

ࡳ

Modified Total Cost Method

ࡳ

Jury Verdict Method

Delay Damages – Total Cost

ƒ

Total Cost Method is highly disfavored

ࡳ

Viewed with caution

ࡳ

Considered a last resort

ƒ

Underlying premise of Total Cost Method

ࡳ

Contractor’s compensable damages are the difference

between the costs expected at the outset (the contractor’s

estimate) and the actual costs

ƒ

Assumes the only reason for the delay is the

Delay Damages – Total Cost

ƒ

Assumes the project would have occurred exactly as

expected, but for the excusable delay

ƒ

Assumes:

ࡳ

Original estimate of the contractor was accurate

ࡳ

All increased costs were caused by the other party

Delay Damages – Total Cost

ƒ

To have the Total Cost Method accepted, must show:

ࡳ

Impossible to estimate actual damages with a reasonable

degree of certainty

ࡳ

The estimate was accurate

ࡳ

Actual cost of performing the work was reasonable

ࡳ

No other causes for increased costs aside from the

compensable delay

ࡳ

Contractor used a reasonable accounting system to

Delay Damages – Total Cost

ƒ

Fundamental Concept of Total Cost Recovery: the

contractor cannot share any of the liability for the

delays

ƒ

Concept is virtually impossible to prove

Delay Damages – Modified Total

Cost

ƒ

Avoids inflexibility of Total Cost Method

ƒ

Allows flexibility – particularly two main elements

ࡳ

Accuracy of the estimate

y

Can address inaccuracies

y

Can address mistakes

ࡳ

Actual Costs incurred: remove those costs not the

Delay Damages – Jury Verdict

Method

ƒ

Different spin on the Total Cost Method

ƒ

Need to establish:

ࡳ

Contractor is damaged

ࡳ

Defendant is responsible

ƒ

Must prove damages "beyond speculation"

ࡳ

Allows the “jury” to make a fair and reasonable

approximation of the contractor’s damages

ƒ

No Missouri case has accepted this method

Delay Damages – Schedule Analysis

ƒ

Generally accepted – more reliable than the Total Cost

Method, Modified Total Cost, or Jury Verdict

ƒ

Use General Conditions Approach

ࡳ

Specifically identify the effect of the delay on each element

of increased cost

ࡳ

Quantify

y

The delay

Common Components of Delay Damages

ƒ

Most commonly associated with a delay claim

ࡳ

General conditions (direct overhead)

ࡳ

Office overhead (indirect overhead)

ࡳ

Equipment Costs

ࡳ

Productivity Losses

ࡳ

Additional Interest

Delay Damages – General Conditions /

Direct Overhead

ƒ

Common elements

ࡳ

Project managers and project administrators

ࡳ

Utilities

ࡳ

Project Trailer or Office

ࡳ

Security

ࡳ

Equipment

ƒ

Generally can show a direct connection between

Delay Damages - Extended Home Office

Overhead / Indirect Overhead

ƒ

Often called “indirect overhead” or “general and

administrative costs”

ƒ

Damages claimed in this area are often attacked

ࡳ

They are often thought of as “soft” damages

ࡳ

They vary greatly depending on the accounting methods

y

No generally accepted protocol for what is included in home

office overhead

Delay Damages – Extended Home Office

Overhead / Indirect Overhead

ƒ

Most of the home office overhead is time driven

ࡳ

If a project is extended beyond the reasonable projection,

home office costs are also extended

ƒ

Not absorbed by the project

Delay Damages – Extended Home Office

Overhead / Indirect Overhead

ƒ

Virtually impossible to directly allocate overhead costs to

a specific delay period

ƒ

Fraught with accounting difficulties

ƒ

Multiple jobs with varying start dates and completion

dates makes it almost impossible

Delay Damages – Extended Home Office

Overhead / Indirect Overhead

ƒ

Recovery is based on the argument that there should be

recovery because the delay precluded other projects

from being able to absorb the overhead

ƒ

Need to prove:

ࡳ

Other work is available and the contractor would have been

able to obtain that work; or

ࡳ

The contractor tried to obtain that work to absorb the

Delay Damages – Extended Home Office

Overhead / Indirect Overhead

ƒ

Eichleay

allocates home office overhead on a ratio

ࡳ

Delayed project’s billings to the firm’s total contract billings

ࡳ

During the period of the performance of the delayed project

ƒ

Total overhead amount for the period of the delayed

project is divided by the number of actual contract days

to determine daily rate

ࡳ

Multiply the number of days of delay by the daily overhead

rate

Delay Damages – Home Office Overhead

/ Indirect Overhead

ƒ

Use of

Eichleay: s

till “estimates” the overhead

ƒ

Fails to consider:

ࡳ

Inefficient management

ࡳ

Timing of the delay on the overhead levels

Delay Damages – Recovery of

Equipment Costs

ƒ

Idle or under-utilized equipment

ƒ

Consider

ࡳ

Ownership costs

y

Maintenance

y

Repair

y

Storage

y

Depreciation

ƒ

Rental Rates

Delay Damages – Interest

ƒ

Review the contract

ࡳ

May have circumstances when you can recover

ࡳ

May have the rate for interest

ƒ

Refer to the statute if no contract provision

ࡳ

Section 408.020 RSMo 2000

ࡳ

Interest at 9%

y

If liquidated

Delay Damages – Interest

ƒ

Interest generally does not begin to accrue until there is

a demand for payment

ƒ

Make your liquidated claim as soon as possible to trigger

the interest

Delays – Problems caused by Concurrent

or Joint Cause

ƒ

General proposition: no liability for the other party’s

delays unless

ࡳ

Caused by the party

ࡳ

Caused by circumstances under the party’s control

Delay – Early Completion

ƒ

Even if the contractor finishes earlier than the contractual

completion date

ƒ

Can still claim a delay if the party can show the project

would have finished earlier than it did but for the

compensable delay

Impact, Escalation, and Acceleration

ƒ

Conduct of others may hinder productivity - even if

finished on time

ƒ

May cause:

ࡳ

Out of sequence work

ࡳ

Stacking of trades

ࡳ

Congestion

ࡳ

Shift work

Impact, Escalation, and Acceleration

ƒ

Escalation: increased cost attributable to performing the

work at a later date than planned

ƒ

Acceleration: process of adding resources to the project

to complete on schedule

Disruption

ƒ

Generally associated with change orders

ƒ

Ripple effect impacts the project aside from the direct

costs associated with the change

ƒ

Contractors will often try to preserve the indirect impact

from the changes

ƒ

Absent the preservation, the Owner may well have a

valid defense to subsequent claims

ࡳ

The Change Order is “accord and satisfaction”

Delays and Interference Claims

Ken Slavens

[email protected]

314-345-6419

Best Practices for

Managing Construction Delay

and Interference Claims

Prepared and Presented by:

A step by step presentation of a

contemporaneous schedule

analysis performed during the

project.

(Resolving delays as they occur)

A RESTAURANT RENOVATION

Floor & Wall Tile In Kitchen Laminate Panels In Kitchen Sawcut Concrete Slab -Install Gas &

Plumbing Patch Concrete Kitchen Wall Framing Kitchen Rough-In Electrical 20 24 28 4 8 12 16 5 5 4 3 5 4 5 6 Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area 14 18 22 26 1 2 6 10 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment

CONTEMPORANEOUS TECHNIQUE

A RESTAURANT RENOVATION

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet 5 4 5 6 5 5 4 3 0 0 0 0 0 0 0 20 24 28 4 8 12 16

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 7 3 8 9 3 7 4 0 30 4 FLOAT CRITICAL PATH Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc.

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

CONTEMPORANEOUS TECHNIQUE

0 5 5 9 9 14 14 20 20 25 25 30 30 34 34 37

5 14 16 19 19 26 26 30 30 37 37 40 40 48 49 53

14 16 48 49

A RESTAURANT RENOVATION

IMPACT #1 - ADD 2ND DEEP FRYER

1 0 I10 2 0 I11 0 30 4 7 3 8 9 3 7 4

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 20 24 28 4 8 12 16 0 0 0 0 0 0 0 5 5 4 3 5 4 5 6 Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area 14 18 22 26 1 2 6 10 0 +5 +5 +6 +12 +12 +12 +12 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc.

Original Completion

Date = 50

Net Delay -3

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

CONTEMPORANEOUS TECHNIQUE

100% 5 75% 4

55% 9

UPDATE A - END OF DAY 10

1 I10 2 I11 30 4 7 3 8 3 7 4

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 20 24 28 4 8 12 16 4 3 5 6 5 5 Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area 14 18 22 26 1 2 6 10 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw Cutting & Piping For 2nd Deep Fryer Install 2nd Deep Fryer 0 1 4 Update A End of Day 10

CONTEMPORANEOUS TECHNIQUE

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet 5 6 5 5 4 3 0 0 0 0 0 0 0 20 24 28 4 8 12 16

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 7 3 8 3 7 4 0 30 4 0 I10 0 I11 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc.

Project Completion

Unchanged - Net

Delay = 0

Some Float Used

On Non-Critical

Activities

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

1

DAY 2

DAY 0

1

IMPACT #1 – ADD 2

_{DEEP FRYER}

₅₃

_-3

2

N/A

DAY 10

2

STATUS UPDATE – END OF DAY 10

53

0

CONTEMPORANEOUS TECHNIQUE

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet 5 6 5 5 20 24 28 4 8 12 16

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 7 3 8 3 7 4 30 4 I11 4 3 I10 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw Cutting & Piping Install 2nd

CONTEMPORANEOUS TECHNIQUE

IMPACT #2 - FIND AND MOBILIZE NEW ELECTRICAL SUBCONTRACTOR

1 I10 2 I11 4 3 30 4 7 3 8 3 7 4

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 20 24 28 4 8 12 16 5 6 5 5 Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area 14 18 22 26 1 2 6 10 I20 New Electrical Sub Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc.

Project Completion

Extended by 1

Day = Total Delays to Date -4

Saw Cutting & Piping For 2nd Deep Fryer Install 2nd Deep Fryer

Was Impact #2 – Electrical Subcontractor

Replacement paced?

What other options did contractor have?

1. Pay premium to start ASAP.

2. Hire on time and materials basis.

What if contractor mis-judges the amount of

pacing time available?

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

1

DAY 2

DAY 0

1

IMPACT #1 – ADD 2

_{DEEP FRYER}

₅₃

_-3

2

N/A

DAY 10

2

STATUS UPDATE – END OF DAY 10

53

0

3

DAY 10

DAY 10

3

IMPACT #2 – REPLACE ELECTRICAL

SUBCONTRACTOR

54

-1

SEE BELOW

Summary of Delays (If Impact #2 Was Paced)

Owner Responsible (Impact #1 & #3)

Contractor Responsible (Impact #2)

Summary of Delays (If Impact #2 Was Not Paced)

Owner Responsible (Impact #3)

Contractor Responsible (Last Day Impact #2)

CONTEMPORANEOUS TECHNIQUE

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 16 6 5 5 Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area 14 18 22 26 1 2 6 10 I20 New Electrical Sub Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw Cutting & Piping Install 2nd Update B End of Day 18 2 0 0 100% 100% 0 30% 2

Project Completion

Date Unchanged

Delays to Date -4

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

1

DAY 2

DAY 0

1

IMPACT #1 – ADD 2

_{DEEP FRYER}

₅₃

_-3

2

N/A

DAY 10

2

STATUS UPDATE – END OF DAY 10

53

0

3

DAY 10

DAY 10

3

IMPACT #2 – REPLACE ELECTRICAL

SUBCONTRACTOR

54

-1

SEE BELOW

4

N/A

DAY 18

4

STATUS UPDATE – END OF DAY 18

54

0

Summary of Delays (If Impact #2 Was Paced)

Owner Responsible (Impact #1 & #3)

Contractor Responsible (Impact #2)

Summary of Delays (If Impact #2 Was Not Paced)

Owner Responsible (Impact #3)

Contractor Responsible (Last Day Impact #2)

CONTEMPORANEOUS TECHNIQUE

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet 5 20 24 28 4 8 12 16

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 7 3 8 7 4 30 4 4 3 I10 I11 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw Cutting & Piping Install 2nd 30%

Project Completion

Extended by -3 Days

Project Delay to Date = -7

City Requires

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

1

DAY 2

DAY 0

1

IMPACT #1 – ADD 2

_{DEEP FRYER}

₅₃

_-3

2

N/A

DAY 10

2

STATUS UPDATE – END OF DAY 10

53

0

3

DAY 10

DAY 10

3

IMPACT #2 – REPLACE ELECTRICAL

SUBCONTRACTOR

54

-1

SEE BELOW

4

N/A

DAY 18

4

STATUS UPDATE – END OF DAY 18

54

0

5

DAY 22

DAY 18

5

IMPACT #3 – CITY REQUIRES ELECTRICAL

UPGRADE

57

-3

Summary of Delays (If Impact #2 Was Paced)

Owner Responsible (Impact #1 & #3)

Contractor Responsible (Impact #2)

Summary of Delays (If Impact #2 Was Not Paced)

Owner Responsible (Impact #3)

Contractor Responsible (Last Day Impact #2)

CONTEMPORANEOUS TECHNIQUE

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 24 28 4 8 12 16 20 Dining Area Carpet 5 18 22 26 NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork 1 2 6 10 I30 I20 New Electrical Sub 14 6 5 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw

Cutting & Install 2nd

30%

Project Completion

Date - Unchanged

Delays to Date -7

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

1

DAY 2

DAY 0

1

IMPACT #1 – ADD 2

_{DEEP FRYER}

₅₃

_-3

2

N/A

DAY 10

2

STATUS UPDATE – END OF DAY 10

53

0

3

DAY 10

DAY 10

3

IMPACT #2 – REPLACE ELECTRICAL

SUBCONTRACTOR

54

-1

SEE BELOW

4

N/A

DAY 18

4

STATUS UPDATE – END OF DAY 18

54

0

5

DAY 22

DAY 18

5

IMPACT #3 – CITY REQUIRES ELECTRICAL

UPGRADE

57

-3

6

N/A

DAY 31

6

STATUS UPDATE – END OF DAY 31

57

0

Summary of Delays (If Impact #2 Was Paced)

Owner Responsible (Impact #1 & #3)

Contractor Responsible (Impact #2)

Summary of Delays (If Impact #2 Was Not Paced)

Owner Responsible (Impact #3)

Contractor Responsible (Last Day Impact #2)

CONTEMPORANEOUS TECHNIQUE

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet 5 20 24 28 4 8 12 16

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 7 3 8 0 4 30 4 4 3 I10 I11 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw

Cutting & Install 2nd

Project Completion

Date - Unchanged

Delays to Date -7

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

1

DAY 2

DAY 0

1

IMPACT #1 – ADD 2

_{DEEP FRYER}

₅₃

_-3

2

N/A

DAY 10

2

STATUS UPDATE – END OF DAY 10

53

0

3

DAY 10

DAY 10

3

IMPACT #2 – REPLACE ELECTRICAL

SUBCONTRACTOR

54

-1

SEE BELOW

4

N/A

DAY 18

4

STATUS UPDATE – END OF DAY 18

54

0

5

DAY 22

DAY 18

5

IMPACT #3 – CITY REQUIRES ELECTRICAL

UPGRADE

57

-3

6

N/A

DAY 31

6

STATUS UPDATE – END OF DAY 31

57

0

7

N/A

DAY 40

7

STATUS UPDATE – END OF DAY 40

57

0

Summary of Delays (If Impact #2 Was Paced)

Owner Responsible (Impact #1 & #3)

Contractor Responsible (Impact #2)

Summary of Delays (If Impact #2 Was Not Paced)

Owner Responsible (Impact #3)

Contractor Responsible (Last Day Impact #2)

CONTEMPORANEOUS TECHNIQUE

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 24 28 4 8 12 16 20 Dining Area Carpet 5 18 22 26 NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork 1 2 6 10 I30 I20 New Electrical Sub 14 0 15 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw

Cutting & Install 2nd

City Requires 100% 100% 100% 100% Update E End of Day 51 100% 0 100% 0 100% 0 100% 0 30% 2 100% 0 0

Project Completion

Date - Unchanged

Delays to Date -7

CONTEMPORANEOUS SCHEDULE ANALYSIS

RESTAURANT RENOVATION

QUACKENBUSH & ASSOCIATES, INC.

IMPACT

STEP

DELAY

START

DATE

DATA

DATE

SCHEDULE

RUN

NUMBER

DESCRIPTION

PROJECTED

COMPLETION

DATE

DAYS

OF

DELAY

_CONCURRENCY

0

N/A

DAY 0

ORIGINAL

ORIGINAL BASELINE SCHEDULE

50

0

1

DAY 2

DAY 0

1

IMPACT #1 – ADD 2

_{DEEP FRYER}

₅₃

_-3

2

N/A

DAY 10

2

STATUS UPDATE – END OF DAY 10

53

0

3

DAY 10

DAY 10

3

IMPACT #2 – REPLACE ELECTRICAL

SUBCONTRACTOR

54

-1

SEE BELOW

4

N/A

DAY 18

4

STATUS UPDATE – END OF DAY 18

54

0

5

DAY 22

DAY 18

5

IMPACT #3 – CITY REQUIRES ELECTRICAL

UPGRADE

57

-3

6

N/A

DAY 31

6

STATUS UPDATE – END OF DAY 31

57

0

7

N/A

DAY 40

7

STATUS UPDATE – END OF DAY 40

57

0

8

N/A

DAY 51

8

STATUS UPDATE – END OF DAY 51

57

0

Summary of Delays (If Impact #2 Was Paced)

Owner Responsible (Impact #1 & #3)

= -6 Compensable Days

Contractor Responsible (Impact #2)

= -1 Non-Compensable Days

Summary of Delays (If Impact #2 Was Not Paced)

Owner Responsible (Impact #3)

= -3 Compensable Days

Contractor Responsible (Last Day Impact #2)

= -1 Non-Compensable Days

COLLAPSED AS-BUILT ANALYSIS

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork 1 2 4 8 12 16 Kitchen Wall Framing Kitchen Rough-In Electrical 7 4

Floor & Wall Tile In Kitchen 30 4 7 3 8 24 28 20 4 3 Dining Area Carpet 5 18 22 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc.

THE BUT-FOR LEGAL CONCEPT

You can only claim damages (money

and/or time) for delays that would not have

been experienced “but-for” the delay in

question.

– Basis of concurrent delay theory

– If you would have finished the project at the

same time – even if delay in question had not

occurred – then you have a concurrent delay.

(Maybe! – Must Consider Pacing!)

“BUT-FOR” SCHEDULE ANALYSIS

(If it makes sense in evaluating concurrent delays – why

doesn’t it make sense in schedule analysis?)

THE PIT BULL PROJECT

PIT BULL MOVES IN NEXT DOOR

Pit Bulls can jump 3’ wall.

Pit Bulls cannot jump 6’ wall.

Owner directs contractor to build wall 6’

high instead of 3’ high.

Contractor says – ok – but it will cost more

and take 2 weeks longer.

Owner OK’s added work

COLLAPSED AS-BUILT ANALYSIS

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 4 8 12 16 20 Dining Area Carpet 5 4 3 18 22 26 NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork 1 2 6 14 6 5 10 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc.

RESTAURANT RENOVATION -

AS-PLANNED SCHEDULE

COLLAPSED AS-BUILT ANALYSIS

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 24 28 4 8 12 16 20 Dining Area Carpet 5 18 22 26 NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Dining Area Décor & Woodwork 1 2 6 10 I30 I20 New Electrical Sub 14 6 15 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw

Cutting & Install 2nd

City Requires

As-Built

Critical Path

Note: this

work took

longer

than

Note: this work was

performed faster

than planned.

Note: this work was

paced to known

project delays.

COLLAPSED AS-BUILT ANALYSIS

15

5 4 5

9 4

COLLAPSE OWNER DELAYS

1 I10 2 I11 4 3 30 4 7 3 7 7 4

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 24 28 4 8 12 16 20 Dining Area Carpet 5 18 22 26 NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork 1 2 6 10 I30 3 I20 New Electrical Sub 14 6 15 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw Cutting & Piping For 2nd Deep Fryer Install 2nd Deep Fryer City Requires Electrical Improvements

When would project

have been completed

if owner delays had

not occurred?

0 0 0

COLLAPSED AS-BUILT ANALYSIS

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork Dining Area Carpet 5 20 24 28 4 8 12 16

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 7 3 7 7 4 30 4 4 3 I10 I11 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw

Cutting & Install 2nd

City Requires

Owner Delays

Collapsed From

Schedule - No

Change In

Completion Date - No

Compensable Delays

Critical Path With

Owner's Delays

Collapsed Out

COLLAPSED AS-BUILT ANALYSIS

15

5 4 5

9 4

COLLAPSE CONTRACTOR DELAYS

1 I10 2 I11 4 3 30 4 7 3 7 7 4

Floor & Wall Tile In Kitchen Kitchen Wall Framing Kitchen Rough-In Electrical 24 28 4 8 12 16 20 Dining Area Carpet 5 18 22 26 NTP & Complete Interior Demolition

Wall & Soffit Framing Dining Area Electrical Rough-In Dining Area Drywall In Dining Area Painting Dining Area Light Fixtures & Electrical Terminations Dining Area Décor & Woodwork 1 2 6 10 I30 3 I20 New Electrical Sub 14 6 15 Kitchen Drywall Set, Hook-Up & Test All Kitchen Equipment Laminate Panels In Kitchen Final Trimout -Project Complete Sawcut Concrete Slab - Install Gas & Plumbing Patch Conc. Saw Cutting & Piping For 2nd Deep Fryer Install 2nd Deep Fryer City Requires Electrical Improvements

If contractor delays had

not occurred when would

the project have finished?

3

5 0