Construction delays chapter sixteen determining responsibility for delay

Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay Construction delays chapter sixteen determining responsibility for delay

Determining Responsibility

for Delay

In addition to determining the activities that were delayed, the magnitude

of the delays, and the general nature of the delays (extended duration, late start, etc.), the analyst must also determine the party responsible for the delay Often, responsibility will be determined after the analyst has identi-fied and quantiidenti-fied the delay This is because specific delays are often identified only after the project schedules are analyzed But even if the delay has not yet been quantified, the basic concepts associated with determining responsibility are the same

Note, also, that “responsibility” may have to be determined on several levels First, there is the basic question as to which party is responsible for the delay, or if responsibility is shared Once responsibility is determined, the contract may then provide guidance as to how the consequences of the delay will be addressed For example, is the delay excusable or com-pensable? The types of delay—excusable or nonexcusable, compensable

or noncompensable—were discussed in detail earlier in this book

CONTRACT REQUIREMENTS

When determining who was responsible for a delay, it is essential to first refer to the contract The contract will be determinative in identify-ing which party was responsible for the performance of the work that led

to the delay In some cases, such as unusually severe weather, neither party will be “responsible.”

The General Conditions or General Provisions of the contract will generally be the most informative and helpful regarding the contractor’s entitlement to a time extension Keep in mind that contracts include references to contract provisions that are not physically included in the contract, but are part of the contract by reference With respect to delays,

it is important to focus on the changes clause or clauses (differing site

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condition and suspension clauses, e.g., are “changes clauses”) and on the scheduling and time extension provisions of the contract These are most commonly the clauses that address delays and time extensions Also, pay attention to exculpatory clauses like no-damage-for-delay clauses that may seem unfair but may be enforceable depending upon the applicable jurisdiction and case law

Delays that are the contractor’s responsibility will generally not entitle the contractor to any time or monetary relief and will typically expose the contractor to liquidated or actual damages for completing the project late Delays that are the responsibility of the owner are generally caused by some form of change, either directed or constructive These may include

a change in the design, an error or omission in the contract documents, a differing site condition, failure to provide timely direction or approvals, failure to timely answer questions needed to progress the work, inspecting the work to a higher standard than specified, or a stop work order Some contracts include time extension provisions that provide a detailed list of the types of delays for which a contractor would be enti-tled to a time extension and reimbursement of delay costs Some con-tracts, however, do not even have a time extension provision When the contract is silent in this regard, it is generally prudent to assume that, based on industry norms, the contractor will be entitled to a time exten-sion for project delays that are not the contractor’s fault or responsibility and that could not reasonably have been anticipated or mitigated by the contractor Similarly, if the contract is silent with regard to compensation, absent contract language, or case law to the contrary, it is generally pru-dent to assume that delays are compensable when they are excusable and they are the owner’s fault or responsibility

For example, critical project delays caused by industry-wide strikes are generally considered to be excusable, but not compensable That is because such strikes are not seen as being the fault or responsibility of the contractor and could not have been foreseen or easily mitigated Strikes are usually not compensable, because they are also not the owner’s fault

or responsibility

In contrast, a critical project delay caused by the owner’s unwarranted suspension of the contractor’s work would typically be seen as being com-pensable This is because the delay was the owner’s fault and responsibility and not the contractor’s

Most construction contracts have some kind of notice provision related to project delay Though there is a great variation in how these

provisions are written, they generally require the contractor to provide timely written notice to the owner that the contractor is experiencing a delay for which the contractor believes it is entitled to a time extension There are at least three reasons that owners require notice The first is to give the owner an opportunity to investigate the problem The second is

to give the owner and the contractor time to work together to develop a strategy to mitigate the delay, and, third, to give the owner an opportu-nity to document the delay contemporaneously Even if the contract does not have a notice provision, the contractor would be well advised to pre-pare contemporaneous written documentation regarding the delay and to timely submit this information to the owner

The contract may specify a set number of days within which time extension requests must be submitted to the owner The contract may further state that if the required written documentation is not submitted within the time specified, then the contractor forfeits the right to recover any additional time or money In addition to specifying time limits, the contract may also specify exactly the information that the contractor must submit when requesting a time extension Such information would include a clear statement of how much time is being sought and an expla-nation as to why the delay was the owner’s responsibility; references to the specific contract clauses that apply; a clear definition of the specific effects associated with delay (i.e., extra work, overtime, delay, etc.); and a detailed breakdown of the added costs associated with the delay, if any

EVALUATING RESPONSIBILITY

In addition to what is referenced in the clauses of the contract, the process of assigning responsibility for a delay requires a thorough review

of the project documentation to find out what factors influenced the per-formance of the delayed work The facts required to assign responsibility will often come from bid package and prebid meetings and inspections; contract plans and specifications; preliminary schedules, baseline and schedule updates, and recovery schedules; change orders, modifications,

or supplemental agreements; daily reports or diaries; general correspon-dence and emails; requests for information (RFIs); submittals; meeting minutes; photos and videos; and cost reporting data For example, the project daily reports may show that the contractor experienced

an equipment breakdown on two separate occasions, which caused the delays to a particular activity Similarly, a comparison of the schedules and the submittal log may show that the late start of an activity was caused by the engineer’s slow return of shop drawings

For a specific delay, there may be no documentation that reasonably explains why an activity had an extended duration Without documenta-tion, it may be reasonable to conclude that the extended duration was the contractor’s fault For example, either the scheduled duration was too optimistic or inadequate resources were applied to the task to accomplish the work in the time scheduled Unfortunately, it is common to find insufficient documentation to answer every question related to the cause

of a delay

It is also possible that another work activity was responsible for the activity delay being investigated For example, an excavation activity may not have started because the contractor planned to use the area for crane access to erect steel and a steel design delay delayed the fabrication of that steel In this example, the steel activity would likely not have been linked

to the unrelated excavation The project documents may not readily reveal the reason for the excavation delay However, a more thorough analysis would reveal that the steel delay was the cause of the late start of excavation

To arrive at the correct answer, it is necessary to collect all of the available data related to the work activity that was the source of the delay Once the pertinent project documents have been identified, they should

be organized chronologically so that they can be evaluated in the time period and sequence in which they occurred It is sometime necessary

to supplement this information with fact witness interviews as some pertinent information may not have been documented in the project documents

WEATHER DELAYS

It is common for time to be “of the essence” in a construction con-tract It is also common for “contract time” or the contract completion date to be terms defined by the contract In addition, given the contract’s role in defining the sharing of risk, especially the considerable risk associ-ated with weather, it is common for the contract to specifically address

how weather-related time extensions will be determined and administered

It is important to know how your contract addresses time extensions for weather Common contract language addressing time extensions for weather can vary from allowing recovery of 1 work day for every work day lost to allowing no time at all Typically, weather-related time exten-sion proviexten-sions only provide for time extenexten-sions in the event of unusually severe weather When that is the case, the contractor is required to con-sider and account for anticipated weather in its bid and in its baseline schedule and schedule updates

In requesting a time extension for weather delays, the ability to iden-tify the number of days that the actual precipitation exceeded the expected frequency or levels or the number of days that the temperature fell well below that which should have been anticipated is only one part

of the equation The contractor must also demonstrate that the adverse weather experienced at the project site limited its ability to perform criti-cal path work on those weather-affected days and, thus, delayed the proj-ect To do so, the contractor will need to rely on the project schedule—

in the best case, a Critical Path Method—to determine if the weather-affected work was, in fact, on the critical path and that the adverse weather resulted in a delay to the project

To evaluate a weather-related time extension, as with any time exten-sion request, we need to review the contract The most common approach to addressing weather-related delays is for the contract to allow excusable, noncompensable time extensions for weather-related delays Normally, the contract wording will refer to “unusually severe weather.”

A well-written contract should further define what “unusually severe weather” means It may clarify this as weather beyond that which is ordi-narily anticipated in that location based on the National Oceanic and Atmospheric Administration historical records If this type of wording exists, all parties to the contract should refer to this standard in the resolu-tion of weather-related time extension requests Some public agencies go

as far as checking the weather experienced at the end of each month, and

if a number of days lost to weather exceeds the norm (as defined by the contract), the agency will unilaterally grant weather-related time exten-sions each month The more normal practice is for the contractor to request weather-related time extensions

Though the project may experience weather of a nature that would qualify for a time extension, the mechanism for providing a time

extension must be spelled out in the contract and must be followed For example, as noted previously, normal practice requires the contractor to request a time extension for weather-related delays If the contractor fails

to make this request, it is possible that no time will be granted Therefore, all parties need to understand the process for weather-related time extensions and must follow it as prescribed

Merely because a project experiences inclement weather that would qualify for a time extension does not necessarily mean that one is due or should be granted For example, if the project is a midrise building and the building is completely enclosed and “water-tight,” the occurrence of

a significant rainfall may have no effect on the contractor’s ability to per-form critical finish work inside the structure Consequently, no time extension may be due Conversely, if the project is a heavy civil job involving earthwork, and significant rainfall occurs, it is possible that

3 days of severe rain may actually delay the project for more than just

3 days Additional time may be required to clean up the site and dry the soil so that work may continue in a productive fashion Therefore, it is necessary to verify that the specific work that is adversely affected by the weather is on the critical path of the project and will delay the project completion date If a project experiences unusually severe weather that would qualify for a time extension, but the work affected had ample float with respect to the critical path, it is likely that a time extension is not due

To properly request or evaluate a time extension request for weather-related delays, the analysis must assess the basic requirements of the con-tract, the severity of the weather occurrence with respect to the contract requirements, the specific activities that are affected, and the effect of the affected activities on the project’s critical path