Trauner Consulting Services, Inc.
Subscribe
Receive Free Insights in Your Email
Trauner Consulting Services Podcasts

What’s The Best Way To Measure Delays In Construction That Have Already Occurred?

November 17, 2013

Hint: It doesn't involve a Delorean!

Hint: It doesn’t involve a Delorean!

You should use the time impact analysis approach I wrote about in the last Ideas & Insights as a technique to measure delays that haven’t occurred yet. You are contemplating a change. You haven’t actually executed the change. The contractor hasn’t performed the change work. You’re just trying to figure out if that change might delay the project. It would be part of the change, or the proposal, or change order request.

What do you do if the project has already been delayed? What if you’re looking in hindsight? Like, for example, say you’ve experienced a weather-related delay in construction like one that Superstorm Sandy may have caused in late October 2012. Use a contemporaneous analysis when evaluating delays that have already occurred.

A contemporaneous analysis is exactly what it sounds like. It’s an evaluation of the contemporaneous project schedules, tracking the critical path from update to update, identifying each and every critical delay, and thus being able to identify how something like Sandy may have affected your project. That’s a contemporaneous analysis.

You don’t analyze delays in a contemporaneous analysis by modifying the schedule. When doing a contemporaneous analysis, you analyze delays by looking at the history of the project and how the project work is unfolding. You’re tracking the critical path.

Let me give you an example. Let’s say excavation is critical. Excavation is

What is Time Impact Analysis?

October 20, 2013

[youtube width=”660″ height=”340″]https://www.youtube.com/watch?v=RRhbzfY2aRw[/youtube]

Scott Explains Time Impact Analysis in this YouTube video

Time Impact Analysis (TIA) is a common approach to analyzing delays on a project. You develop a fragnet, which is a fragmentary network for the issue (i.e. the change). It’s like a little mini-schedule for the change. You take that fragmentary network, you drop it into contemporaneous schedule, and then look to see how it affects that schedule. That’s the TIA analysis.

If you’re looking at delays prospectively, in other words, before they’ve occurred (you’ve got a change and you’re trying to figure out how this change you’re contemplating would affect the project) a TIA approach is the approach you’d use to evaluate the delay. Use the TIA to identify and measure critical delays that have not yet occurred.

This is the approach you use before the delay has occurred. Unless required by the contract, do not use this method to evaluate delays that have already occurred. Don’t use it to look behind you.

We’re not going to go through the step-by-step of the TIA. That’s beyond the scope of this particular Ideas & Insights. If you’re interested in knowing the steps, just send me an email at <scott.lowe@traunerconsulting.com>.

One other thing, if you’re looking for a source that describes probably the closest thing that exists to an industry-wide standard with regard to how you would conduct a TIA analysis, I could point to the Recommended Practice for Forensic Schedule Analysis. This document is published by an organization called the Association for the

What Do You Do If the CM Micromanages The Contract’s Schedule and Withholds Approval?

September 22, 2013

Angry Construction Worker

Here’s a question. What do you do if the Construction Manager  micromanages the contractor’s schedule and withholds approval so the project proceeds for months without a schedule and, as a consequence, the contractor has their own in-house schedule that is different? Can the contractor use their in-house schedule as a basis for measuring the delay?

The short answer to this question, in my opinion, is yes. Ultimately, the right answer is whichever schedule is best. In other words, if the CM’s position is that the schedule is tragically flawed, and the reason for their rejection of the schedule was this tragic flaw, and because of this flaw the schedule is not an accurate representation of the contractor’s plan for completing the work, the CM has a point.

I often say, at least to my staff, use the contemporaneous project schedules to measure delay, but don’t hold tight to those schedules and jump off a cliff with them. The point I’m trying to make is that nobody believes the right way to measure a delay is to use a schedule that is truly, deeply flawed.

I think if the contractor has developed a workable, reasonable, sensible schedule that truly and honestly sets forth the contractor’s plan for executing the project, the contractor keeps that schedule updated, and the contractor revises the logic as necessary to deal with the conditions that it’s encountered…the contractor should be

A New Website on Delay Damages

August 19, 2013

delay damages website

Sometimes we want to share more information than could fit into an Ideas and Insights. With that in mind, we created DelayDamages.com. We hope to grow this new website into the most comprehensive resource on the topic of construction delay damages.

The website already has a lot of information on the following topics:

We’d love to hear your thoughts on this new website. Send an email to mark.nagata@traunerconsulting.com to let us know what you think or ask any questions about the topic. We look forward to hearing from you.

The Best Way to Prevent a Constructive Acceleration Claim

February 24, 2013

Constructive_accelerationOne reason why you want to give time extensions when time extensions are due is you don’t want to develop a situation where the contractor is entitled to a time extension, but the owner is refusing to provide one.

This can lead to a type of acceleration called, “constructive acceleration.” “Constructive” in this case meaning, “in effect.” Essentially, it’s an acceleration that is the result of the actions or behaviors of the parties. It would be in contrast, for example, to a directed acceleration.

In order to prove construction acceleration, the contractor must demonstrate five things:

  • The contractor has experienced what’s called an, “excusable delay.” An excusable delay is a delay for which the contractor is entitled to a time extension, usually a critical delay that’s not the fault and responsibility of the contractor.

  • The contractor then requests a time extension for that excusable delay.

  • The owner rejects or is silent as to whether a time extension will be provided. Because the contractor is not getting additional time to complete the work, the contractor is now concerned that they might be assessed liquidated damages. Or worse yet, that the owner might conclude that they are in fact in breach of the contract. Or the owner directs the contractor to finish the project by the original contract date without an extension.

  • The contractor, for that reason, gives notice to the owner that it will have to accelerate it’s work in order to finish the project by the originally contracted

  • The Most Important Question Owners Need to Ask When They Receive a Claim

    February 10, 2013

    Too often I hear this reason given for why there’s a claim on the project:

    “Contractors low ball their bids hoping to make money on changes.”

    I’m not going to tell you that that doesn’t happen. But I’m also not going to suggest to you that because they’ve done this, their claim has no merit.

    The contractor’s position could have merit, even though they low balled their bid with the idea they were going to make money on changes. So, the merits of the claim may be completely independent of the circumstances.

    There’s also a belief, and this is probably another common owner view of the world, that if I take a hard line on this claim, I’ll discourage other people from filing claims. Perhaps you may, but often I’ll hear this from an owner that’s used that philosophy as a basis for determining whether or not they’re going to fight the claim or not.

    In both these cases, the wrong question is being asked.

    The more important question is, “Does the claim have merit or not?” In other words, merit matters.

    Sometimes there’s a belief, mostly expressed by contractors, that owners will always find a reason not to pay a change. I often hear this mentioned when we talk about developers.

    I think it’s probably incorrect, but the bottom line is there’s a perception that some owners will always respond to the question of whether there’s a change or not with the word, “No.”

    Again, even if that’s your perception, and even if that is the owner’s position,

    The Common Issues You See In Construction Claims

    January 27, 2013

    Heart in HandsThere are several common issues we end up debating and that are often at the heart of a claim. These issues are:

    Proper Interpretation of the Contract

    Now, if the issue’s small, ultimately the interpretation issue can often be overcome, but if it’s associated with thousands, or worse, millions and millions of dollars in potential added costs, then the proper interpretation of the contract becomes a common bone of contention.

    Delays

    Delays are an issue in 99 percent of the claims I get involved with. It appears that it’s hard for the project team to answer questions related to delays, to come up with a way of measuring the delays that everybody can agree to, and that everybody can use as a basis for resolution of their differences.

    Inefficiency

    Efficiency has become more and more common of an issue. When I first started evaluating claims in 1985, inefficiencies were a rare component of a contractor’s claim. Now, it seems like virtually every claim I pick up has inefficiency as a significant component. If delays are hard to measure, inefficiencies are harder to measure.

    I was in a mediation last week, and the mediator said if delays are hard to resolve or measure, then inefficiencies are the square of that in terms of difficulty. I’m not sure I quite agree with the square part, but I would say that inefficiencies are typically more difficult to evaluate than delays.

    Acceleration

    Tying those two things together, delay and inefficiency, is the issue

    Weather and Construction: The Contract

    November 04, 2012

     In the following post, John Crane continues our series on Weather and Construction.

    The Contract

    In this Ideas & Insights, I will hopefully demonstrate that by providing the proper information and guidance in the contract documents, many common issues concerning weather can be eliminated.  Two examples of standard contract language are shown below to illustrate the questions that sometimes exist in a contract.

    The 2007 edition of the AIA-A201 standard agreement states:

    4.3.7.2  If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction.

    And, the recently issued ConsensusDOCS states:

    6.3.1  If the Contractor is delayed at any time in the commencement or progress of the Work by any cause beyond the control of the Contractor, the Contractor shall be entitled to an equitable extension of the Contract Time.  Examples of the causes beyond the control of the Contractor include…adverse weather conditions not reasonably anticipated; encountering Hazardous Materials…

    These clauses leave us with the question of what is considered to be “abnormal” or could have been “reasonably anticipated.”

    How Do We Determine What Is “Normal?”

    Whether I am an owner wishing to eliminate such questions or a contractor wanting to determine the number of “reasonably anticipated” weather days I need to plan for, there are references, such as data available from the National Oceanic and Atmospheric Administration (NOAA), that provide historical data that can

    Weather And Construction: What You Need To Know

    October 07, 2012

    Dealing with rain on construction projects.

    The following article starts our series focused on the questions and scenarios that stakeholders need to consider when dealing with weather in construction contract documents and project schedules.

    Wrestling in the Mud or Dancing in the Rain: Planning for Mother Nature

    At one time or another in our construction careers, many of us have worked on projects where some “troublemaker” just did whatever they wanted to do, regardless of the effect that their actions had on our work.  In some of those instances, it seemed that no matter how well we documented the issues, at the end of the day, we had a hard time coming up with an exact method to calculate how much of a problem the “troublemaker” caused.  Mother Nature often acts as just such a troublemaker and is quite capable of creating chaos on a construction project.  She can induce havoc on the project schedule and often is the catalyst for significant disputes between owners and contractors.

    Since I started work as a construction management consultant many years ago, there have been few projects that have crossed my desk that didn’t, to some extent, attempt to explain and measure the role Mother Nature played in a project finishing late.  Troubled projects often finish with a bucket full of puzzling “delays” or “impacts.”  The challenge of sorting out such complex delay claims

    Differing Site Conditions: To Be or Not to Be

    February 27, 2012

    Encountering unanticipated subsurface conditions while driving piles or excavating is a common occurrence in construction.  If a contractor encounters a differing site condition, the path to recovery of added costs is through the contract.  As a contractor, what information should be included in your differing site condition request to demonstrate entitlement to additional contract time and compensation for the differing site condition?  Conversely, as an owner, how should the request be evaluated to determine whether the contractor actually encountered a differing site condition?  While all projects are unique, there are some conditions that have to be met to prove entitlement to compensation and time extension for a differing site condition.  However, before identifying those conditions we must first identify what, in fact, constitutes a differing site condition.

    The Two Types of Differing Site Conditions

    Generally, there are two types of differing site conditions. The first type (Type 1) is usually defined as instances when the contractor encounters subsurface or latent physical conditions that differ materially from those indicated in the contract.

    An example of a Type 1 differing site condition may be when a contractor is driving piles and does not reach refusal at the elevations identified in the plans and specifications.

    The second type (Type 2) of a differing site condition is usually defined as instances when the contractor encounters unknown physical conditions of an unusual nature that differ materially from those ordinarily encountered and generally recognized as inherent in the work at the project’s location.

    An example of a Type 2 differing site

    Page 3 of 4«1234»