Technical Program Abstracts

(CDR) Claims and Dispute Resolution

NOTE: Program Subject to Change

(CDR-3335) Claims Avoidance on Highway Projects: What To Do When A Problem Arises

Author(s)/Presenters(s): Igor Gaca, PSP; A. Wayne Seiler, PSP

Abstract:

Looking at real world examples this paper will identify key aspects of a construction claim on highway projects, and what to do to mitigate a claim in the future, and deal with a claim concurrently as the project continues.  By defining early warning signs, including differing site conditions, communication breakdowns, poor project documentation, lack of coordination, we can prepare proper claims avoidance techniques with proper project planning.

(CDR-3338) Weather Delays: How adverse weather is interpreted and analyzed in the construction industry

Author(s)/Presenters(s): Dr. Nour El Imane Bouhou, PSP

Abstract:

Encountering adverse weather on a construction project is no surprise and is even expected, why then is it so difficult for planners and forensic analysts to account for it? What seemed like a straightforward exercise often includes subtleties that introduce additional and unforeseen levels of complexity. This presentation will shed light on how public and private contracts define and address weather, industry standards for planning and accounting for weather, and the analysis of weather ex post facto. The presenters will include case studies and examples to illustrate how project planners and forensic analysts have accounted for weather impacts, both proactively and retrospectively.

(CDR-3351) Subsequent Requests for Equitable Adjustment After Full & Final Settlements

Author(s)/Presenters(s): Bryan Payne, PE CCP CFCC

Abstract:

Most construction claims settlement agreements and many public agency change orders have clauses certifying that the settlement or change order is a "full and final settlement" up to the effective date of the change order or settlement.  Items that are ongoing at the time of settlement are addressed through carve-out provisions in the settlement to allow them to be resolved later.

This paper examines how to address subsequent claims that originate before the effective date of the full and final settlement but are not contained in a carve-out provision in the settlement.  This paper also examines the differences in how public and private construction contracts address this issue and expands the inquiry to examples of how common law and civil law jurisdictions resolve such claims.

(CDR-3352) Pricing Deleted Work in Public and Private Contracts

Author(s)/Presenters(s): Bryan Payne, PE CCP CFCC

Abstract:

When the owner deletes scope from a construction contract how should the deductive change order be priced?  Assuming each party will generally argue that the basis for the pricing should be the pricing most beneficial to itself, is there an objective rule that provides the basis for the credit for the deleted work?  For Federally-funded construction work in the United States, the answer is yes.  However, this general rule does not extend to private works of improvement and other countries have different rules that apply to this issue.

This paper examines the question of how to price deleted work starting from the general rule for Federally-funded projects, the principles that lead to the general rule, and how that rule is applied.  The paper expands the inquiry to private construction in the United States and then to international jurisdictions seeking a common applicable general rule.

(CDR-3358) Expert Witness Testimony In Construction Litigation

Author(s)/Presenters(s): Neil D. Opfer, CCP CEP PSP FAACE

Abstract:

A common component in construction litigation in the United States and the world is the use of expert witnesses to help resolve disputes.  Despite their worldwide utilization, the focus in this discussion is typical U.S. practice.  Sometimes, the expert witness may be jointly retained by the two sides or retained by triers of fact to understand the contentions of both sides.  Expert witnesses can be part of a team when more complex cases require more varied backgrounds in order to properly cover the numerous aspects involved in this litigation.  In some instances, a person becomes an expert witness, almost by accident, when, due to their background, they are asked by those involved in litigation to provide assistance.  The expert witness needs competence in their professional area along with the ability to analyze issues, write concise technical reports and verbal ability to competently testify in various forums.  Expert witness work must conform to high ethical standards as contained in AACE's Canons Of Ethics.  For those who have thought about becoming an expert witness, this paper will provide useful information in this area.  Expert witnesses with substantial experience in construction litigation may still find some useful advice within the paper.

(CDR-3363) Success Factors for Obtaining Performance Security Injunction

Author(s)/Presenters(s): Dr. Mohamed-Asem U. Abdul-Malak; Houssam M. Noureddeen El-Moussawi

Abstract:

A preemptive measure often sought by contractors involves requesting concerned courts to grant an injunction for restraining payment under a performance guarantee. Such a request may or may not be successful depending on the grounds so argued by the applicant. The objective of the work presented in this paper is to investigate the factors that are likely to contribute to the success in obtaining such injunction. The method of inquiry was based on a careful review and analysis of several relevant legal cases. The main finding was found to revolve around establishing a strong prima facie case by the applicant. More specifically, three factors have surfaced as being taken into consideration by courts in accepting the application of injunction: fraud, unconscionable act, and breach of contract. A seriously arguable case using fraud as the ground for requesting injunction may involve calling an amount under the guarantee that exceeds the beneficiary's entitlement. A similarly arguable, unconscionability-based case shall have as a realistic inference the existence of acts such as unfairness, abuse, dishonesty, and/or lack of good faith. As for cases alleging breach of contract, interim injunction is found to be granted by way of giving a chance for proving the breach.

(CDR-3365) Revoking the Exercised Termination of the Construction Contract: Implications and Lessons Learned

Author(s)/Presenters(s): Dr. Mohamed-Asem U. Abdul-Malak; Farah S. Demachkieh; Kazem Y. Dhaini

Abstract:

The decision to terminate the main construction contract by a project owner is a serious task that is normally approached with a great deal of caution and made almost invariably after seeking the appropriate legal advice. However, it is not a rare case that affected contractors find themselves in a position of attempting to have the exercised contract termination amicably revoked and the resumption of work on site reinstated. Whether such attempts eventually fail or succeed, major ramifications are likely to surface in administrating the propagation of the impacts of both main contract termination and its subsequent revocation on the subcontracts of the lower-tier project participants, i.e., subcontractors. This paper tackles this exact case, which involves the actions taken by the general contractor towards the subcontracts' works, firstly upon the termination of the main contract becoming effective and then upon having this owner's exercised termination successfully revoked. The followed methodology includes an analysis of the legal perspective on how the termination of the construction contract becomes effectively in place and the viability and requirements for its possible annulment. Furthermore, the details of a recent multinational contractor-subcontractor dispute are thoroughly studied, and lessons learned concerning the prevailed irreparable harm are deduced.

(CDR-3368) Determining Time Extensions for Quantity Overruns in Unit Price Contracts

Author(s)/Presenters(s): Emad Mofarej Kouchaki, CCP PSP

Abstract:

Unit price contracts are often used to expedite procurement and shorten the overall duration of a project since a detailed design and final quantity takeoffs are not necessary to enable a contractor and owner to agree on a contract to perform the construction work. Even when the actual quantities are finalized, variation in quantities still happen for a variety of reasons; perhaps late value engineering, Requests for Information, or simply due to designer's oversight. Although most contracts include some Variation in Quantity Clause, this clause does not necessarily explain contractor's entitlement to additional time due to increased quantities. This paper provides guidance to an owner that will facilitate collaborative and effective analysis of delays and resolution of entitlement to extensions of time due to variation in quantities.

The proven approach is aligned with AACE Recommended Practice No. 29R-03 and ensures that the analysis will not create any pitfalls at a later date should the issues require more formal dispute resolution. This process has been successfully implemented on multiple projects and the paper will include an example of how this approach works.

(CDR-3415) The Theory of Delay

Author(s)/Presenters(s): Mark C. Sanders, PE CCP CFCC PSP

Abstract:

Many papers and texts published by AACE International and others have discussed the analysis of delay. Analysis involves the application of scientific or technical concepts. This paper presents the view that the underlying concepts for delay analysis have been insufficiently established or at least insufficiently documented. The industry has developed extensive principles of application without stepping back to develop the underlying theoretical framework. This paper directly addresses the question 'What is Delay?' The scientific method of inquiry is applied to begin the development of an overarching theory of delay with the goal of establishing a firm logical foundation to support the sound application of analysis techniques.

(CDR-3416) Prospective Time Impact Analysis: Reality or Fiction

Author(s)/Presenters(s): Nelson L. Gallardo

Abstract:

Construction delay analysis techniques generally provide a retrospective assessment of the net effect of delay events upon project completion. Under this scenario, the goal is to explain the causes of actual project prolongation on the updated or as-built schedule. On the other hand, prospective delay analysis techniques such as Time Impact Analysis aim to recreate project conditions at the time of a schedule update to measure the potential total delay to the project without considering subsequent delay events. This paper evaluates current issues around the utilization of Prospective Time Impact Analysis as a forensic technique for determining excusable delay.

(CDR-3418) Why Are Dynamic Schedule Analysis Methods More Suited for Large, Complex Construction Projects with Significant Performance Periods?

Author(s)/Presenters(s): Dr. Nour El Imane Bouhou, PSP; John C. Wolf

Abstract:

Large, complex construction projects with significant performance periods often experience schedule delay. Multiple methods are available to quantify schedule delay.  However, selection of well-suited methodologies remains a subject of controversy. Industry publications and American case law indicate that dynamic methods are better suited for large, complex projects with long performance periods, while holding that static methods can be used for simple projects with short performance periods.  This paper discusses why dynamic methods are preferred when assessing schedule delay during the post construction period of large, complex projects with long performance periods.  The paper includes reference to American court and board rulings related to static and dynamic schedule delay methods.

(CDR-3433) Contractual Challenges to the 'Longest Path' Theory of Critical Path Calculation

Author(s)/Presenters(s): Dr. Waleed Mostafa El Nemr

Abstract:

A contentious point of discussion between forensic planning and contracts practitioners is the means by which the critical path is calculated in a project delay situation.  There are two main schools for the calculation of the critical path after the contract completion date has lapsed.  The first is the 'Total Float Value' school (the contracts practitioners preference), where the critical path is calculated with reference to the contract completion date.  Therefore, any delay taking place after the contract completion date is considered critical.  The second is the 'Longest Path' theory, where the critical path is the longest critical path up to the actual completion date.  Therefore, only the delay with the longest path is considered critical, even if the other delay took place after the contract completion date.  An examination of the literature and case law demonstrates that the Longest Path theory has wider application and preference in the United States and abroad.  AACE International's 29R-03 advocates the Longest Path school as well as numerous court cases, the most notable of which is the Santa Fe case.  This paper goes against the tide and illustrates, from a contractual standpoint, that the Longest Path theory negates basic principles of contract law.  Several contractual and practical (from a contract management perspective) factors are elaborated upon to prove this point.

(CDR-3436) Weather Impacts and Loss of Productivity Claims

Author(s)/Presenters(s): Dr. Tong Zhao, PE PSP; Mark Dungan

Abstract:

Labor productivity is susceptible to many affecting factors which can cause loss of productivity, and weather is one of them.  Depending on the root causes, weather impacts can be categorized to contractor risk impacts, which should have been reasonably anticipated by the contractor; excusable, but non-compensable impacts; and excusable and compensable impacts.  While loss of productivity is one of the most contentious subjects in construction disputes, proving a loss of productivity claim for weather impacts can be very challenging.  Because of its importance, the subject of weather impacts to labor productivity has received considerable attentions in research since half century ago.  In this paper, the research on weather impacts to labor productivity is reviewed.  And then the loss of productivity claims related to weather impacts are discussed from the aspects of entitlement, causation and damage quantification.  This paper not only provides tips for contractors to prove loss of productivity claims for weather impacts, but also provides suggestions on the prevention, mitigation and management of those claims, especially for inexperienced owners.

(CDR-3455) Timing Your Time Extensions and General Conditions Costs

Author(s)/Presenters(s): Brian J. Furniss, PE CFCC PSP; Matthew Nichols, PSP

Abstract:

Resolving time extensions and extended general conditions are challenging issues for contractors, subcontractors, and owners. Submission timing is important to resolving the time extension favorably, and if there's no resolution, that timing is key to preserving your ability to successfully resolve a claim.

Further complicating resolution are the different methods for quantifying extended general conditions costs and how general conditions may vary over time. Using the costs incurred during the delay period may yield very different results than using costs at the end, or tail, of the project. This paper will provide a brief introduction on how the timing of time extensions is crucial for successful resolution of change orders and claims, and will also provide recommendations for how to accurately price extended general conditions costs in various project scenarios.

(CDR-3460) Dealing with Forecast Delays or Mitigations in Forensic Schedule Analysis when Implementing MIP 3.3

Author(s)/Presenters(s): Jesus Schuldes, PSP

Abstract:

AACE International Recommended Practice No. 29R-03 (AACE RP 29R-03) defines MIP 3.3 as an observational technique that compares the baseline or other planned schedule to the as-built schedule or a schedule update that reflects progress in multiple segments, or periods. The application of MIP 3.3 emphasizes the as-built critical path and compares individual activity planned start and finish dates with actual start and finish dates. Through this comparison, delays and/or accelerations of activities can be identified on the as-built critical path.

However, it is not unusual for the cumulative delays and/or accelerations identified on the as-built critical path in any given period to be different than the overall project completion slippage and/or gain for the same period. Typically, this is a result of downstream or forecast adjustments made to the schedule throughout and at the end of the period. If this occurs, the following should be considered:

  • Are the forecast delays and/or mitigations reasonable or simply schedule logic modifications to conceal actual delays and/or accelerations?
  • When will the forecast delays and/or mitigations be actualized, if they are ever actualized?
  • What if the forecast delays and/or mitigations in any given period cause a shift to the as-planned critical path of the subsequent period(s)?
  • What if the forecast delays and/or mitigations in any given period are not on the as-built critical path in the subsequent period(s)?

The purpose of this paper is to address these considerations and provide recommendations for dealing with forecast delays and/or mitigations in forensic schedule analysis when implementing MIP 3.3.

(CDR-3467) Recovering and Calculating Subcontractor Time Related Overheads

Author(s)/Presenters(s): Cory Ryan Milburn, CFCC PSP; Suleiman Al Rai

Abstract:

It is generally accepted that if a delay is proven to be compensable and excusable, the prime contractor is entitled to compensation for additional Time Related Overhead (TRO). Conversely, the mechanisms and methods through which subcontractors can recover TRO is often more complex and varies from that of prime contractors. The purpose of this paper is to analyze varying contractual requirements and restrictions related to subcontractor TRO. This paper also provides differing methods of recovery for subcontractor TRO.

(CDR-3481) Who owns earned schedule contingency?

Author(s)/Presenters(s): Michelle L. McMillan, Peng

Abstract:

This paper was initiated by a situation on a large infrastructure project in Canada.  The owner stipulated a finish on or before contractual completion date. To gain a competitive cost advantage, during the bidding process, the contractor planned their work to be completed 3 months early but there was no mechanism in the bidding process to identify this condition.  The contractor's schedules were compliant with the contract requirements and consistently showed a construction completion date, three months earlier than the contractual 'finish no later than' completion date.  Late in the Project, the consultant provided changes which required the contractor to be on site after their anticipated construction completion date but not after the final contractual completion date.  The contractor put forward a request for additional costs for the additional time on site, after their planned completion but before contractual completion.

This paper reviews the various issues raised by this situation including terminal float, ownership of project float, ownership of earned schedule contingency and contract risk allocation.  The paper also investigates the current recommended practices and legal precedents related to this situation as well as providing some alternative contracting solutions to deal with similar issues on future projects.

(CDR-3491) Determining Time Extensions for Quantity Overruns in Unit Price Contracts

Author(s)/Presenters(s): Hamed Arabzadeh, PSP; Christopher W. Carson, CEP DRMP PSP FAACE

Abstract:

Construction projects are interwoven with unpredictability largely due to the number of assumptions that are made through project development. Every day, organizations enter into legally binding contracts to perform the construction work which is defined by those assumptions.  The unit price contract is commonly used to reduce project procurement duration since a final design with accurate quantity takeoffs is not necessary before contract award.  Even when detailed drawings are available at contract award, changes or omissions may take place which can cause deviation from the approved design, significantly changing quantities to be installed, often beyond contractual thresholds.  But extensions of time that should accompany increased quantities are often overlooked or poorly determined.

The focus of this paper is to provide solutions for the challenges that organizations face when such variances exceed the specified thresholds, and start to impact the project's schedule. This paper will present the case of a highway construction project as well as delay evaluation methodologies used by the general contractor and owner's scheduling consultant, and provides recommendations for the contract awarding agency to enhance resolution in similar situations.

(CDR-3515) Hybrid Delay Analysis: 'Windows Slice Method'

Author(s)/Presenters(s): Pramod Oommen, CCP PSP

Abstract:

The technical paper deals with two aspects, namely, a retrospective hybrid delay analysis ('windows slice') and apportionment of excusable compensable delays ('ECD'). The windows slice involves the review of two programmes, namely the impacted ('IP') and rescheduled programme ('RP') within each progressive time period - the method combines MIP '3.7' and '3.3' listed in AACEI 29R-03 under a single umbrella. All employer delay events ('EDE') within the window are inserted into baseline or first update ('IP'), however, the EDE duration is sliced at end of the window, to illustrate the relevant effect within this period. A copy of IP is taken and progress data at the end of this period is imported into this programme ('RP') to reflect status of works against the effect of EDE at end of window.

The primary longest paths within IP and RP are compared to analyze concurrency at project level and arrive at ECD. However, in complex projects, it is necessary to establish concurrency at sub-critical levels. Here, the apportionment of ECD is achieved by looking at activity level variance (ALV) and derivation of prolongation factor based on budgeted labor units (BLU) for critical activities.

(CDR-3516) Siri Told Me So - Expert Witness Testimony at the Dawning of the Age of A.I.

Author(s)/Presenters(s): Kenji P. Hoshino, CFCC PSP FAACE; Christopher J. Brasco; Michael A. Pink

Abstract:

This paper will explore technical and legal issues expected to be encountered in testimony of engineering, scheduling and cost expert opinions relying on the use of automated systems and artificial intelligence.  Specific topics include:

  • The current state of the law and practice
  • The degree of reliance on the output from automated systems and artificial intelligence.
  • The extent to which the expert must be familiar with the inner workings of the software
  • What data need to be provided in discovery
  • Does proprietary software need to be provided for the opposing experts' use?
  • Can live expert be replaced by AI?

The paper will conclude with a set of key considerations for experts, lawyers and policy makers regarding this fast-developing area of our practice.

(CDR-3521) Early Detection of Construction Phase Issues:  The Use of Construction Documents to Identify Potential Problems Before They Become Disputes

Author(s)/Presenters(s): David M. Ponte, PE

Abstract:

Cost and schedule 'surprises' are more efficiently managed through the early identification of issues. This paper will provide practical guidance to Owners, Design Professionals and Contractors on how the wealth of underutilized data which is contained within standard construction phase documentation such as RFIs, PCOs, and submittals as well as underlying schedule information can be utilized to provide an early warning of potential issues thereby allowing project participants an opportunity to avoid and/or mitigate potential cost and schedule impacts. Construction documents are reflective of the clarity of the Contract Documents and the Contractor's understanding of them. 'Excessive' questions or re-submittals regarding a particular specification or drawing can be indicative of problems with the drawing/spec or a contractor that lacks the understanding, either of which can lead to issues. Categorizing and tracking RFI's and submittals by Specification/Drawing Number and by Type/Cause will enable the early identification of such issues. Basic reviews of CPM Schedules monitor progress and changes to network logic or activity calendars. These reviews only provide a cursory level status of the project. An advanced review of the schedule data including the Critical Band, Start Activity Index and Finish Activity Index can provide a more in-depth status of not only the number activities that are sensitive to external influences but also whether the contractor is employing sufficient resources on the Project to meet the completion date.

(CDR-3522) Mitigation Compensation for a non-delayed schedule using a modified Collapse As Built method

Author(s)/Presenters(s): Abbas Saifi

Abstract:

For any construction project, it is in the best interest of all stakeholders to have a well-planned and approved baseline schedule to work with. As the construction, progresses, unknown risks creep in, affecting the project completion date. To avoid any delay on the project completion date, the contractor takes additional risks and mitigates the schedule. While succeeding in meeting the contractual project completion date, the contractor fails to inform the owner on the mitigation steps taken and the cost for such mitigation efforts. As the project nears completion, the contractor realizes that the mitigation cost is much higher than anticipated, with reward less than risk taken. This paper demonstrates such an event and shows two AACE methods with some modifications that the contractor can perform on a zero slippage schedule, to inform the owner about the true mitigation done and compensation for such mitigation.

(CDR-3525) Parsing the Fine Print: Five Elements of Construction Claims Analysis

Author(s)/Presenters(s): John A. Armstrong, PSP; John T. Jozwick, Esq. CCFC

Abstract:

As technology enables building projects to achieve hitherto unknown degrees of design complexity, as construction schedules continue to accelerate, and as the pricing and delivery of materials grows increasingly volatile, one thing remains constant: construction claims.

There are numerous facets to the complete and clear understanding of a construction claim. How does one systematically determine the proper right, correct payment of money, accurate change in contract time, or other relief when analyzing a claim? The significance of the answers to these questions should not be underestimated, as they directly impact the settlement.  The authors of this paper provide the essential and critical elements for analyzing construction claims and recommendations for quickly and equitably resolving them.

(CDR-3526) Practical Approaches to Selecting An Appropriate Forensic Delay Analysis Methodology

Author(s)/Presenters(s): John A. Armstrong, PSP

Abstract:

This paper provides practical guidance in selecting a retrospective delay analysis technique, in particular those protocols defined within Recommended Practice 29R-03 'Forensic Schedule Analysis', dated 25 April 2011.  While courts, experts and other scheduling professionals may have their preferred techniques to quantifying delay events, no single technique is appropriate for all situations that arise on construction projects.  The author of this paper applies real world examples to demonstrate when certain methodologies may be more appropriate than others given the constraints and specifics surrounding a project.  The paper will also present a summary of previously published articles and papers regarding this subject in an easily accessible format.  Finally, the paper will offer general recommendations and tips that any claims and disputes professional can immediately apply in future matters.

(CDR-3536) Schedule Oversite Essentials Tested in Federal Court

Author(s)/Presenters(s): K. Casey Caughie, PE PSP

Abstract:

An actual court case is making its way through Federal Court that tests Government oversite of project progress and disputed project delay.  The author provided schedule oversite throughout the project's duration, contributed contemporaneous time-impact evaluations, and just completed taking the stand as a key Government witness.  Contractor sued Government challenging schedule oversite, lost efficiency, and project delay.  Explaining schedule essentials is key to communicating to court what were the roles and responsibilities, what is contract compliance, schedule integrity, and how evaluation of delay determined.  Customer needed to plan for a move, equipment installation, personnel adjustment, and mission critical readiness around anticipated completion of new facility.  Customer also wanted to reasonably control cost and project duration growth. Contractor provided schedule updates.  Government provided schedule oversite to determine project status, contract compliance, and schedule integrity.  Contractor time-impact-analysis did not occur until after project complete.  Contractor analysis did not include consideration of as-built record (sequence and dates) nor concurrent delay; Government evaluation used as-built events and timeline of overlapping events to determine delay results.  The timing of outcome of the court case will allow the case and its decision examined as compared to assumptions and Government position.

(CDR-3539) The Law of Forensic Schedule Analysis

Author(s)/Presenters(s): John C. Livengood, Esq. CCP CFCC PSP FAACE

Abstract:

Forensic Schedule Analysis stands equally on three supporting pillars: (1) technical analysis, (2) professional expertise, and (3) legal precedent.  AACE's various Recommended Practices and articles on forensic schedule analysis provide a firm basis for technical analysis for experts to evaluate schedule delays and prepare opinions. Yet, AACE's RPs specifically disavow knowledge of the third pillar, legal precedent.  Even so, all practitioners of forensic schedule analysis remain keenly aware of this third pillar and its influence on their work.  Further, these experts often refer to and rely on legal precedence in finalizing their work.  This paper will contemplate the extent that experts should consider legal precedent, as well as examine the law as it  concerns the four major families of forensic schedule analysis methods identified in AACE Recommended Practice No. 29R-03 Forensic Schedule Analysis: As-Planned v. As-Built; Windows; Time Impact Analysis; and Collapsed As-Built.

(CDR-3541) Show Me the Money - Fundamentals of a Construction Claim

Author(s)/Presenters(s): Joseph V. Caldarera, PSP

Abstract:

Complex construction projects involve many moving parts and require exacting planning and effective prosecution of the Work.  Performance within the project budget/guaranteed maximum price in keeping with the planned project schedule is critical to developers and owners to ensure financial success of the project as contemplated.  Inevitably, an unforeseen or fortuitous event, particularly if disruptive to the project schedule will likely extend the completion date and affect the project cost.   Claims do occur on construction project, and the frequency of such claims being made due to tight schedules and competitive pricing negotiations have increased.  Builder's Risk policies that are intended to protect and indemnify the Owner/Designer/Construction teams ("Project Team) many times appear to impose circumstances for reporting and substantiating claims that the Project Team oftentimes struggles to address.  This paper will address the claims process and in particular will identify the crucial steps that involve notice of a claim, documenting the claim, confirming any excusable extensions for time as related to a delay in completing a project, and substantiating a valid claim - from the prospective of both hard costs and any entitled extended conditions (soft costs).

(CDR-3549) Forensic Planning Implementation in the MENA Region:  Correlations to AACE's Recommended Practice No. 29R-03

Author(s)/Presenters(s): Dr. Waleed Mostafa El Nemr; Hossam A. Eid Mohammed Kandeel, EVP; Haya S. Saleh, PSP

Abstract:

Delay analysis techniques are a frequent topic of discussion in construction law literature.  Delay analysis guidelines, such as The Society of Construction Law Delay and Disruption Protocol, and forensic schedule analysis guidelines, such as AACE International's Recommended Practice 29R-03 Forensic Schedule Analysis ('RP'), were developed in the United Kingdom and United States respectively to provide practitioners across the world with useful tools for implementation.  A broad picture outside the United States and United Kingdom, however, demonstrates that there is seldom any literature or guidelines produced as to how the Middle East and North Africa (MENA) region implements forensic planning methods outlined in the RP and the extent to which these methods are followed in this region.  Through the analysis of a select number of projects in the region, this paper sheds light on the forensic planning methods practiced in the countries under study.  Of course, the discussion in this paper cannot be generalized to all countries of the MENA region or even to the countries mentioned in this paper.  However, it is a step towards gaining insight on how forensic planning methods are applied internationally and possible deviations from the RP.

(CDR-3551) VISUALIZING THE IMPACT OF CONCURRENT SCHEDULE DELAYS USING LINEAR SCHEDULING METHOD

Author(s)/Presenters(s): Dr. Ricardo M. Tapia; Dr. Douglas D. Gransberg PE

Abstract:

Quantifying the impact of concurrent delays due to differing site conditions, weather, and quality issues transcends merely revising schedule durations. Differing site conditions typically occur early in the project, directly or indirectly impacting subsequent activities. When concurrent delays for weather and contractor quality problems are added to the mix, forensic analysis becomes complex. The issue is further complicated by the fact that the courts have recognized four different methods for using critical path method for forensic delay analysis. The paper demonstrates linear scheduling method as a tool to visualize the as-built and the as-planned schedules in a single graphic. The tool combines contractor daily work report data with visualizations of the geotechnical baseline report, actual weather data, and quality control reports. The paper demonstrates the approach by applying it to a delay claim found on an earthen dam project that was part of the Panamá Canal Expansion project. The paper concludes that the proposed tool furnishes a common ground for explaining contractor and owner-caused delays, providing a common foundation from which to negotiate schedule impact.

(CDR-3552) Suspend Work - "Remain on Standby" - 3 Key Words

Author(s)/Presenters(s): James G. Zack, Jr. CFCC FAACE Hon. Life

Abstract:

The contract has been awarded and notice to proceed issued.  The contractor has started work.  The owner issues a suspension of work directive and the contractor shuts down all or a designated portion of their work awaiting the return to work order.  The contractor believes they are entitled to recover all delay and all time related delay damages.  Is the contractor right?  Is the owner on the hook for all delay damages?  As Max E. Greenberg commented in 1984 '“ 'It ain't necessarily so!'  This paper examines why owners must have a suspension of work clause in their contracts and how these clauses work.  It identifies what damages are typically owed when an owner stops all or part of the work and outlines some typical limitations of suspension damages found in many contracts.  Additionally, the paper discusses five key court cases decided between 1996 and 2015 that set forth key requirements necessary to collect damages arising from a suspension of work directive.  Finally, the paper offers recommendations on what actions contractors take to protect the recovery of such damages and why these actions may help owners resolve such claims in the field rather than the courtroom.

(CDR-3556) Preparing and Preserving Builder's Risk Delay Claims

Author(s)/Presenters(s): Jonathan D. Perry, CCP EVP PSP; Que-Anh Pham

Abstract:

Owners and contractors know to turn to their contract for the 'rules of the road' when preparing or evaluating construction claims.   The evaluation of a delay claim made under a builder's risk insurance policy relies on the terms contained in the builder's risk policy and endorsements, which often differ greatly from the terms of the construction contract, and that are unfamiliar to many project stakeholders.  This paper will discuss the differences between conventional delay claim preparation and that which is accepted and compliant for builder's risk losses.  The analysis will include a discussion of the differences between typical contract and insurance policy terms, a comparison of delay analysis methodologies, and a discussion of how time-related costs are evaluated in a builder's risk context.  The paper will also discuss best practices for owners and contractors in preserving and documenting delay claims resulting from builder's risk loss events.

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