Construction Today - October 2016 - 95

IN THIS SECTION
delays affected the "critical path" of the work. Delay to work that is not
on the critical path will not be compensable.
Approaches to calculating critical path delay can vary greatly, in
part because there is no universally accepted definition of "critical
path." Some approaches take a "contemporaneous" look at criticality,
which involves examining schedules that had been submitted during
the project. When contemporaneous schedules are not available, a
party (or its scheduling expert) must recreate an understanding of the
critical path retroactively (based on the as-built schedule). Generally,
if schedules were submitted and agreed upon during construction,
courts and arbitrators will find these to be more persuasive evidence
of critical path than they would the as-built schedule.

Claiming Costs
To quantify recovery of impact or inefficiency costs that are not captured as part of the delay cost analysis, courts and arbitrators generally favor a "measured mile" analysis, which calculates loss of efficiency
by comparing efficiency in an "unimpacted" area (the "benchmark"
area) to the efficiency in areas that were impacted by owner interference or unforeseen site conditions (the "impacted" area). Typically,
efficiency is determined by calculating the number of man-hours
required to complete a certain unit of work (e.g., hours required
for a cubic yard of concrete). Under a measured mile analysis, the
contractor recovers the value of the hours expended in the impacted
area that were in excess of the hours that reasonably could have been
expected if the productivity factor of the benchmark area had applied
to the impacted area.
A contractor that lacks understanding of what is generally acceptable as proof of a delay claim will often submit a "total cost" or "total
delay" claim to its customer. In a total cost claim, the contractor asks
the customer to pay the contractor the total costs that the contractor
incurred beyond those it had reasonably anticipated when it bid the
project. A total cost claim assumes that the customer (or causes beyond the contractor's fault) caused all increased costs, through delays
or interferences with the contractor's work. A total cost claim also
assumes that the costs that the contractor assumed in its bid were
reasonable. In a total delay claim, the contractor asks the customer
to pay the costs that the contractor incurred for extended overhead
and field supervision or other field costs for the total time that the
schedule extended beyond the originally anticipated completion
date. Like a total cost claim, a total delay claim assumes that fault
can be attributed 100 percent to the customer (or causes beyond the
contractor's control).
In general, total cost claims and total delay claims are heavily
disfavored by courts and arbitrators. They recognize that it is rare that
zero fault for increased cost or delay lies with the contractor, and they
therefore generally require that a contractor provide an alternative

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96

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analysis to recoup increased costs, such as
the above-discussed critical path analysis or
measured mile calculation.
A contractor seeking delay or impact
costs would be well advised to seek legal
counsel immediately upon encountering
delay or significant adverse site conditions
or interferences. Legal counsel can guide the
contractor to a proper, qualified expert who
can work with the contractor to quantify
any damages.
Jeremy P. Brummond practices in the litigation department at Lewis Rice in
St. Louis with a focus on engineering and construction. He can be reached at
jbrummond@lewisrice.com

95

OCTOBER 2016 CONSTRUCTION-TODAY.COM


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Table of Contents for the Digital Edition of Construction Today - October 2016

Contents
Construction Today - October 2016 - Cover1
Construction Today - October 2016 - Cover2
Construction Today - October 2016 - 1
Construction Today - October 2016 - Contents
Construction Today - October 2016 - 3
Construction Today - October 2016 - 4
Construction Today - October 2016 - 5
Construction Today - October 2016 - 6
Construction Today - October 2016 - 7
Construction Today - October 2016 - 8
Construction Today - October 2016 - 9
Construction Today - October 2016 - 10
Construction Today - October 2016 - 11
Construction Today - October 2016 - 12
Construction Today - October 2016 - 13
Construction Today - October 2016 - 14
Construction Today - October 2016 - 15
Construction Today - October 2016 - 16
Construction Today - October 2016 - 17
Construction Today - October 2016 - 18
Construction Today - October 2016 - 19
Construction Today - October 2016 - 20
Construction Today - October 2016 - 21
Construction Today - October 2016 - 22
Construction Today - October 2016 - 23
Construction Today - October 2016 - 24
Construction Today - October 2016 - 25
Construction Today - October 2016 - 26
Construction Today - October 2016 - 27
Construction Today - October 2016 - 28
Construction Today - October 2016 - 29
Construction Today - October 2016 - 30
Construction Today - October 2016 - 31
Construction Today - October 2016 - 32
Construction Today - October 2016 - 33
Construction Today - October 2016 - 34
Construction Today - October 2016 - 35
Construction Today - October 2016 - 36
Construction Today - October 2016 - 37
Construction Today - October 2016 - 38
Construction Today - October 2016 - 39
Construction Today - October 2016 - 40
Construction Today - October 2016 - 41
Construction Today - October 2016 - 42
Construction Today - October 2016 - 43
Construction Today - October 2016 - 44
Construction Today - October 2016 - 45
Construction Today - October 2016 - 46
Construction Today - October 2016 - 47
Construction Today - October 2016 - 48
Construction Today - October 2016 - 49
Construction Today - October 2016 - 50
Construction Today - October 2016 - 51
Construction Today - October 2016 - 52
Construction Today - October 2016 - 53
Construction Today - October 2016 - 54
Construction Today - October 2016 - 55
Construction Today - October 2016 - 56
Construction Today - October 2016 - 57
Construction Today - October 2016 - 58
Construction Today - October 2016 - 59
Construction Today - October 2016 - 60
Construction Today - October 2016 - 61
Construction Today - October 2016 - 62
Construction Today - October 2016 - 63
Construction Today - October 2016 - 64
Construction Today - October 2016 - 65
Construction Today - October 2016 - 66
Construction Today - October 2016 - 67
Construction Today - October 2016 - 68
Construction Today - October 2016 - 69
Construction Today - October 2016 - 70
Construction Today - October 2016 - 71
Construction Today - October 2016 - 72
Construction Today - October 2016 - 73
Construction Today - October 2016 - 74
Construction Today - October 2016 - 75
Construction Today - October 2016 - 76
Construction Today - October 2016 - 77
Construction Today - October 2016 - 78
Construction Today - October 2016 - 79
Construction Today - October 2016 - 80
Construction Today - October 2016 - 81
Construction Today - October 2016 - 82
Construction Today - October 2016 - 83
Construction Today - October 2016 - 84
Construction Today - October 2016 - 85
Construction Today - October 2016 - 86
Construction Today - October 2016 - 87
Construction Today - October 2016 - 88
Construction Today - October 2016 - 89
Construction Today - October 2016 - 90
Construction Today - October 2016 - 91
Construction Today - October 2016 - 92
Construction Today - October 2016 - 93
Construction Today - October 2016 - 94
Construction Today - October 2016 - 95
Construction Today - October 2016 - 96
Construction Today - October 2016 - 97
Construction Today - October 2016 - 98
Construction Today - October 2016 - 99
Construction Today - October 2016 - 100
Construction Today - October 2016 - 101
Construction Today - October 2016 - 102
Construction Today - October 2016 - 103
Construction Today - October 2016 - 104
Construction Today - October 2016 - 105
Construction Today - October 2016 - 106
Construction Today - October 2016 - 107
Construction Today - October 2016 - 108
Construction Today - October 2016 - 109
Construction Today - October 2016 - 110
Construction Today - October 2016 - 111
Construction Today - October 2016 - 112
Construction Today - October 2016 - 113
Construction Today - October 2016 - 114
Construction Today - October 2016 - 115
Construction Today - October 2016 - 116
Construction Today - October 2016 - 117
Construction Today - October 2016 - 118
Construction Today - October 2016 - 119
Construction Today - October 2016 - 120
Construction Today - October 2016 - 121
Construction Today - October 2016 - 122
Construction Today - October 2016 - 123
Construction Today - October 2016 - 124
Construction Today - October 2016 - 125
Construction Today - October 2016 - 126
Construction Today - October 2016 - 127
Construction Today - October 2016 - 128
Construction Today - October 2016 - Cover3
Construction Today - October 2016 - Cover4
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