Documentation and Proof of Construction Delay

Presented by: J. Scott Lowe, P.E. Trauner Consulting Services, Inc.

P.O. Box 509 Eau Claire, WI 54702-0509 Phone: 866-352-9539 Fax: 715-833-3953 Email: customerservice@lorman.com Web: www.lorman.com Seminar ID: 386128

This manual was created for online viewing. State specific information in this manual is used for illustration and is an example only.

Documentation and Proof of Construction Delay

Prepared by: J. Scott Lowe, P.E. Trauner Consulting Services, Inc.

2010 Lorman Education Services. All Rights Reserved. All Rights Reserved. Lorman seminars are copyrighted and may not be recorded or transcribed in whole or part without its express prior written permission. Your attendance at a Lorman seminar constitutes your agreement not to record or transcribe all or any part of it. This publication is designed to provide general information on the seminar topic presented. It is sold with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this manual is prepared by professionals, it should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought. This disclosure may be required by the Circular 230 regulations of the United States Treasury and the Internal Revenue Service. We inform you that any federal tax advice contained in this written communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding federal tax penalties imposed by the federal government or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein. The opinions or viewpoints expressed by the faculty members do not necessarily reflect those of Lorman Education Services. These materials were prepared by the faculty members who are solely responsible for their correctness and appropriateness. Lorman Education Services, P.O. Box 509, Eau Claire, WI 54702-0509 Phone: 866-352-9539 Fax: 715-833-3953 Email address: customerservice@lorman.com Website: www.lorman.com Seminar ID: 386128

L o r m a n E d u c at i o n S e r v i c es :

A Company With a

Reputation for Success

Are you looking for additional ways to receive training and continuing education?
N e w s l e t t e rs :
These free newsletters will provide you with updates on current issues and hot topics in your industry. Each of our newsletters delivers timely and accurate information directly to you via email. To sign up for updates and view archived newsletters, visit www. lorman.com/newsletters.

S e m i n a rs :

Since 1987, Lorman has sponsored thousands of continuing education seminars across the U.S. and Canada. Attend a full-day program to hear the latest in industry updates and regulation changes that will keep your business current and in compliance. Learn from local experts and network with other professionals in your industry. For a complete listing of upcoming seminars in your area, visit www.lorman.com/seminars.

Bookstore:

S e a s o n P a ss :

Lormans Season Pass gives you the ability to customize a continuing education package that will satisfy you or your companys needs of continuing education for the next 12 months. With the Season Pass, you purchase your pass up-front and well knock 15-40% off the original price, depending on the size of your pass. The Season Pass is transferable to anyone in your company and can be used at any of Lormans OnDemand webinars or teleconferences. Visit www. lorman.com/seasonpass for more information.

Cant find the seminar you are looking for? Search Lormans extensive resource library containing thousands of audio recordings, books and reference manuals. Visit www.lorman.com/bookstore.

C e r t i f i c at e s :

P a r t n e rs h i p s :

Do you belong to a state or local bar, society or association? Become a Lorman partner and your organization could earn commission and discounted training and products. Visit www.lorman.com/ contact/associations.php for more information.

Earn your Human Resources Professional Development certificate, Construction Compliance certificate or Certificate of Banking Compliance by attending a Lorman-sponsored seminar or teleconference. Our professional certificates were developed in conjunction with leading experts in their respective industries. For complete information on these certificates, please visit www.lorman.com/ certification/hrpd, www.lorman.com/certification/cc or www.lorman.com/certification/cbc.

On Demand:

I n - H o u s e C o r p o r at e Tr a i n i n g :

Lorman offers the convenient option of bringing training and continuing education seminars right to your facility. Featured training programs or customized courses are available for any size group. Save time and money by not having to send your team away for training. To learn more, visit www.lorman.com/inhouse.

Looking for a convenient way to fulfill all of your continuing education needs? OnDemand webinars allow you to view 90-minute programs from the comfort and convenience of your home or office. All you need is an Internet connection. Accessible 24 hours a day, 7 days a week you can view, pause, rewind and replay at your convenience. Visit the OnDemand library at www.lorman.com/ondemand.

The ability to learn faster than your competitors may be the only sustainable competitive advantage.
Arie de Geus

Determination and Documentation of Construction Delay

Speaker: Scott Lowe, P.E.

Lorman Education Services is a Registered Provider with The American Institute of Architects Continuing Education Systems. Credit earned on completion of this program will be reported to CES Records for AIA members. Certificates of Completion for non-AIA members are available on request. This program is registered with the AIA/CES for continuing professional education. As such, it does not include content that may be deemed or construed to be an approval or endorsement by the AIA of any material of construction or any method or manner of handling, using, distributing, or dealing in any material or product. Questions related to specific materials, methods, and services will be addressed at the conclusion of this presentation. The learning objectives met in attending this program are: You will be able to recognize the importance of contemporaneous documents. You will be able to identify what schedules should be used. You will be able to explain common approaches to the analysis of delay. You will be able to review measurement and determination of delay.

2009 Lorman Education Services. All Rights Reserved.

Lorman programs are copyrighted and may not be recorded or transcribed in whole or part without its express prior written permission. Your attendance at a Lorman program constitutes your agreement not to record or transcribe all or any part of it. This publication is designed to provide general information on the topic presented. It is sold with the understanding that the publisher is not engaged in rendering any legal or professional services. Although this manual is prepared by professionals, it should not be used as a substitute for professional services. If legal or other professional advice is required, the services of a professional should be sought. This disclosure may be required by the Circular 230 regulations of the United States Treasury and the Internal Revenue Service. We inform you that any federal tax advice contained in this written communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding federal tax penalties imposed by the federal government or (ii) promoting, marketing or recommending to another party any tax related matters addressed herein. The opinions or viewpoints expressed by the faculty members do not necessarily reflect those of Lorman Education Services. These materials were prepared by the faculty members who are solely responsible for their correctness and appropriateness.

Meet Your Instructor

9Scott Lowe 9Principal,
Trauner Consulting Services 920 Years Experience 9Professional Engineer 9Instructor, Scheduler, Author, Analyst, Expert Witness

Key Terms: Schedule

Baseline or As-Planned Schedule Schedule Updates As-Built Information Contemporaneous Schedules After-the-Fact Schedules

Schedule
A schedule is a time-based plan to construct a project The schedule may also identify logic, costs, and resources

Schedule
The two most common types of construction schedules
Bar Chart Schedule
Activity Utility Relocation Civil Construction Landscaping Project Complete Duration Start Finish 15 17-Sep-04 07-Oct-04 40 08-Oct-04 02-Dec-04 15 03-Dec-04 23-Dec-04 0 23-Dec-04 SEP 2004 OCT NOV DEC

CPM Schedule

Schedule

The ideal Baseline or As-Planned Schedule is the earliest complete and approved project schedule
0 10 20 30 TIME A 40 50 60

As-Planned Schedule

Schedule

A Schedule Update/Revision is created to monitor progress on the plan and adjust the plan to reflect all changes in the logic or duration of the work activities.
0 10 20 30 TIME A 40 50 60

Schedule Update

Schedule

Contemporaneous [of the time]

Schedules prepared and used during the project to manage the work

After-the-Fact
Schedules created after the project has been completed

The Critical Path

The Critical Path

Determines the projects completion date Is the longest continuous sequence of work Exists on every project Is dynamic and can change throughout the course of the project

10

The Critical Path

11

Float
Float is the amount of time an activity can be
delayed without causing delay to the completion of the project (or some intermediate project milestone, depending on which critical path youre focusing on)

12

Float

As a concept As a mathematical calculation Negative float Is float still a useful number?

13

Float

Who owns the float?

14

Measurement and Determination of Delay

Contract Provisions Analyzing Delays

Beforehand Afterwards

15

The Contract
108.6.1 General*
If warranted, the engineer will extend the contract completion date by issuing a "Contract Amendment" (Form E_61). The engineer will do so only if an excusable delay extends the scheduled late finish date beyond the lattermost contract completion date or its most recent extension. The engineer will not consider a request to revise partial or contract completion dates without notice as specified in subsection 104.2.7, "Contractor-Department Notification," and without documentation from the project schedule, including updates, supporting the need for a revision. The engineer will evaluate the information submitted and determine the time extension due, if any.

*Excerpted from the Wyoming Department of Transportation, Section 108.6, Extension to the
Contract Completion Date

16

The Contract
108.6.1 General*
If warranted, the engineer will extend the contract completion date by issuing a "Contract Amendment" (Form E_61). The engineer will do so only if an excusable delay extends the scheduled late finish date beyond the lattermost contract completion date or its most recent extension. The engineer will not consider a request to revise partial or contract completion dates without notice as specified in subsection 104.2.7, "Contractor-Department Notification," and without documentation from the project schedule, including updates, supporting the need for a revision. The engineer will evaluate the information submitted and determine the time extension due, if any.

*Excerpted from the Wyoming Department of Transportation, Section 108.6, Extension to the
Contract Completion Date

17

10

The Contract
108.6.1 General
The engineer will not grant a time extension based on pleas that the contract specified insufficient time for the completion of the project.

18

The Contract
108.6.2 Excusable Delays
Excusable delays are delays that the contractor cannot reasonably foresee or avoid and are not the contractor's fault or responsibility; they include, but are not limited to:

1.

2. 3. 4.

delays due to floods, tornadoes, lightning strikes, earthquakes, fires, epidemics, or similar natural phenomena; weather delays as specified in subsection 108.6.5, "Working Day Extensions for Increased Quantities"; extraordinary, unforeseen, and unavoidable delays in material deliveries; delays due to the acts of government entities other than the department;

5.

6.

7.

delays from industry-wide strikes affecting the contractor's (or subcontractors' or suppliers') workforce that are beyond the contractor's power to settle; if time allowances are not specified, or if specified allowances are exceeded, delays caused by the noncompletion of work by utilities or other third parties; delays arising from a contract amendment in accordance with subsection 104.2, "Contract Amendments."

19

11

The Contract
108.6.2 Excusable Delays
Excusable delays are delays that the contractor cannot reasonably foresee or avoid and are not the contractor's fault or responsibility; they include, but are not limited to:

1.

2. 3. 4.

delays due to floods, tornadoes, lightning strikes, earthquakes, fires, epidemics, or similar natural phenomena; weather delays as specified in subsection 108.6.5, "Working Day Extensions for Increased Quantities"; extraordinary, unforeseen, and unavoidable delays in material deliveries; delays due to the acts of government entities other than the department;

5.

6.

7.

delays from industry-wide strikes affecting the contractor's (or subcontractors' or suppliers') workforce that are beyond the contractor's power to settle; if time allowances are not specified, or if specified allowances are exceeded, delays caused by the noncompletion of work by utilities or other third parties; delays arising from a contract amendment in accordance with subsection 104.2, "Contract Amendments."

20

The Contract
108.6.3 Nonexcusable Delays
Nonexcusable delays are delays caused by the contractor or that the contractor could reasonably have foreseen or avoided. The engineer will not make an extension to partial or contract completion dates for nonexcusable delays.

21

12

The Contract
Contract Provisions may also address compensability, identifying delays for which the contractor is due additional compensation in addition to a time extension.

22

Analyzing Delays: Beforehand

The components and documents required for analysis: The Schedule

Is it approved? Is it contemporaneous? Is it current? What work activities are being added? How long will the new work take?

The Change

23

13

Analyzing Delays: Beforehand

Basic procedure
1. Identify new work activities added by the change. 2. Determine the schedule for this new work.

This mini-schedule is called a fragnet.

3. Identify the contemporaneous schedule. 4. Update the schedule, if necessary, to the date of

the change.
5. Insert the change order fragnet into the updated

schedule.
6. Evaluate the results.
24

The Project

25

14

Baseline Schedule

Original Project Completion: July 13

26

The Change
On February 1, the owner informed the contractor that to accommodate the spawning season this year, the projects environmental permit had been modified. The second cofferdam, located in a flowing portion of the river, could not be installed until March.

27

15

Update for Change

FIRST, Update the Schedule to the date of the change: February 1

28

Update for Change

SECOND, Identify the Current Project Completion Date: July 19

29

16

Adjust for Change

THIRD, Adjust the schedule for the change,
Adding in an activity for the restricted period, which could also have used a constraint or calendar.

30

Adjust for Change

THIRD, Adjust the schedule for the change,
Adding in an activity for the restricted period, which could also have used a constraint or calendar.

31

17

Adjust for Change

Dont forget to run the schedule Note that the critical path has changed

FOURTH, Identify the Current Project Completion Date: July 22

32

Adjust for Change

FOURTH, Identify the Current Project Completion Date: July 22

33

18

Analyzing Delays: Beforehand

1. What was the completion date?

Before the change: July 19 After the change: July 22

2. The change order issued for the permit revision should include a 3-day time extension. 3. Alternately, the work could be accelerated to mitigate the delay and achieve timely completion.

34

Analyzing Delays: Afterwards

Impacted As-Planned Analysis Collapsed As-Built Analysis Windows Analysis Contemporaneous Schedule Analysis As-Built Analysis

35

19

Analyzing Delays: Afterwards

Impacted As-Planned Analysis
After-the-fact schedule Subjective Static Analysis Typically rejected by the courts, panels, and boards

36

Analyzing Delays: Afterwards

Collapsed As-Built Analysis
After-the-fact schedule Very subjective Easily challenged Very time-consuming and expensive

37

20

Analyzing Delays: Afterwards

Windows Analysis
Often uses contemporaneous schedules But not always all of them Subjective in that choice of window affects outcome Often fails to detect critical path shifts shown on contemporaneous schedules

38

Analyzing Delays: Afterwards

Contemporaneous
Uses the contemporaneous schedules Critical path assessed every day Subjectivity is eliminated or reduced Requires a schedule to analyze

39

21

Analyzing Delays: Afterwards

As-built
Works when there are no schedules or no usable schedules Critical Path assessed every day Ignores plan May not allow analyst to identify and quantify every day of delay

40

Contemporaneous Analysis Methodology

0 10 20 30 TIME A 40 50 60

As-Planned Schedule

41

22

Contemporaneous Analysis Methodology

0 10 20 30 TIME 40 50 60

D
As-Built Schedule

42

Contemporaneous Analysis Methodology

0 10 20 30 TIME A A B B C C D D
As-Planned vs As-Built Schedule

40

50

60

43

23

Contemporaneous Analysis Methodology

0 10 20 30 TIME A A B B C C D D
10-Day Extended Duration of Activity A

40

50

60

10-Day Extended Duration

44

Contemporaneous Analysis Methodology

0 10 20 30 TIME A A B 5-Day Late Start B C C D D
5-Day Late Start of Activity B

40

50

60

45

24

Contemporaneous Analysis Methodology

0 10 20 30 TIME A A B B 10-Day Delay C C C D D
10-Day Delay Due to Interruptions to Activity C

40

50

60

46

Contemporaneous Analysis Methodology

0 10 20 30 TIME A A B B C C C C D D
No Delay to Activity D

40

50

60

47

25

Contemporaneous Analysis Methodology

0 10 20 30 TIME A A B B C C D 40 50 60

25 Days D

As-Planned vs As-Built Schedule

48

Contemporaneous Analysis Methodology

0 10 20 30 TIME A A B 5-Day Late Start B 10-Day Delay C C C C D D
Summary of Delays

40

50

60

10-Day Extended Duration

SUMMARY OF DELAYS ACTIVITY A ACTIVITY B ACTIVITY C ACTIVITY D 10 DAYS 5 DAYS 10 DAYS 0 DAYS

49

26

Documenting Delays

Focus on contemporaneous documentation Schedule Reviews and Approvals Daily Reports, Logs, & Diaries Notice

50

Contemporaneous Documents

Often more credible Closer to the event; less memory dependent Fixed, story cant change Remember to date and sign May appear to be less biased

51

27

Schedule Reviews and Approvals

Contemporaneous Identifies problem areas and helps avoid delays Establishes an agreement as to dates and times for both parties

52

Daily Reports, Logs, & Diaries

Often the best contemporaneous documents Must be prepared daily Must be detailed Should substantiate the writers evaluation of performance Date and sign

53

28

Notice

Often required If required, provide it Adhere to contract specification requirements Negotiate notice requirements prior to the start of construction Keep it simple; develop a form letter

54

QUESTIONS & ANSWERS

Scott Lowe, P.E.
Trauner Consulting Services, Inc.
1617 JFK Blvd, Ste 600 Philadelphia, PA 19103 Phone: 215-814-6400 Fax: 215-814-6440

Trauner Publications
Just Released!

scott.lowe@traunerconsulting.com

Feel Free to Contact Me for More Information

55

29

This concludes The American Institute of Architects Continuing Education Systems Program. Feel free to approach todays speakers if you have additional questions or would like clarification on a topic covered in todays program. Thank you for choosing Lorman Education Services for your continuing education needs.

56

30

Notes