2008 AACE INTERNATIONAL TRANSACTIONS

CDR.07 Causation - How is it Proved?

Mr. James E. Krebs, PE CCE, and Mr. Michael J. Reynolds

egardless of the type of contractual relationship between the parties, there is an inherent financial tension in the construction process. Contractors wish to construct the project that was bid in the most profitable manner possible. Owners wish to complete the project that it expects at the lowest possible cost. In this environment, even the most reasonable and sophisticated owner and the most responsible and vigilant contractor may find themselves in a dispute or claim situation. In that event the claimant or plaintiff must show three necessary elements liability, causation and resultant injury. [57] Liability is determined by the parties adherence or lack of adherence to the terms of their contract. Injury (damage) is the financial loss incurred by the parties. Both liability and damages have been the subject of much professional study and discussion, but are outside the scope of this paper. Proving or disproving the causation element the cause and effect link between the liability and the resultant damage has received much less attention and is the subject of this paper. This paper does not attempt to provide a definitive standard to prove causation. It does present examples of relevant legal rulings that point out common shortcomings and accepted methods of presenting a cause-and-effect analysis of delays, lost productivity, and cumulative impact. Causation Defined Causation is defined in Blacks Law Dictionary (8th Ed.) as [t]he causing or producing of an effect <the plaintiff must prove causation>. For purposes of this paper, causation means that the plaintiff must prove a causal relationship between actions or inactions of the defendant that are not permitted by the contract and delay, lost productivity, or cumulative impacts that are experienced on the project. Representation in Cost Engineering and Construction Law Literature In performing research for this paper, it became clear that the topic of proving causation is recognized only in passing in the cost engineering literature, which generally focuses on proving damages. One exception is Proving Causation by Paul E. Markis, PE [50]. Legal literature has also focused more on proving or disproving liability and damages, rather than causation. Legal Standards/Requirements Before discussing proof of causation, it is important to understand that in claims litigation, the plaintiff has the burden of proving by preponderance of evidence that a disruptive event not the responsibility of the plaintiff caused delays, lost productivity, or cumulative impacts suffered by the defendant that resulted in damages to the plaintiff [11]. The plaintiff must prove the fact that the defendant caused a loss with certainty and the amount of loss with enough certainty that it is not speculation [62]. Thus, there is a clear distinction between the measure of proof necessary to establish the fact the [plaintiff] has sustained some damages and the measure of proof necessary to enable the jury to fix the amount [60]. Federal Rule of Evidence 702 Proving a cause and effect relationship between liability and damages often requires expert opinion testimony. Expert testimony regarding causation of lost productivity, delay, or cumulative impact, or resulting damages, must meet the admissibility requirements of Federal Rule of Evidence 702, which states:

CDR.07.1

2008 AACE INTERNATIONAL TRANSACTIONS If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if the testimony is based upon sufficient facts or data, the testimony is the product of reliable principles and methods, and the witness has applied the principles and methods reliably to the facts of the case.

In deciding whether an experts underlying reasoning or methodology is scientifically valid or reliable under Rule 702, courts take a flexible approach and look at a variety of relevant factors, including: whether the theory or methodology can and has been tested; whether it has undergone peer review; whether there is any known or potential rate of error; and whether it is generally accepted as reliable in the relevant scientific or technical community [28]. The relevance and reliability requirements of Rule 702 apply to all types of expert testimony [44]. Rule 702 has been used to prevent experts from testifying about such matters as lost productivity or schedule delays, based on unreliability arising from, for instance, failure to sufficiently account for specific case facts, use of an unreliable methodology, reliance on a methodology based mainly on personal experience, or relying solely on the say so of the expert to establish the reliability of the connection of the expert opinion to the underlying data [45, 59]. On the other hand, courts have determined that proper use of critical path method (CPM) schedules to analyze the cause and extent of delays meets the requirements of Rule 702 [63]. Not all states have followed the Daubert decision. Even under somewhat more flexible admissibility standards in proceedings before federal agencies, Daubert still applies, because those standards require expert opinion to be credible, meaning that it must be reliable [46]. Other Considerations It is very important for purposes of both admissibility and persuasiveness that expert opinions find support in the actual construction project record: Expert opinions offered on certain matters that clearly are not supported by the record tended to cast a shadow on the value of other opinions concerning issues where underlying factual matters were less clear [13]. Assertions by an expert as to causation, unsupported by reference to actual, objective evidence, do not amount to proof [22]. It is risky to rely solely on expert witness testimony to prove causation: Courts are likely to reject a plaintiffs delay or lost productivity claims where plaintiff does not call witnesses familiar with the work site or how the work progressed to establish causation, and instead relied on the testimony of experts [10]. Courts are most likely to find most valuable causation testimony of witnesses familiar with the daily logs and other voluminous documentary evidence [29].

Even uncontroverted opinion evidence may not be conclusive if it is intrinsically non-persuasive [58]. DELAY CLAIMS Overview The term delay is defined by AACE International as to cause the work or some portion of the work to start or be completed later than planned or later than scheduled [3]. For this paper the term delay is further refined to mean delays to the critical path of a project which will result in a delay to the projects contractual completion date. Therefore, delays result in either late completion of the project, failure to complete early, or acceleration of work to meet the end date.

CDR.07.2

2008 AACE INTERNATIONAL TRANSACTIONS Rather than showing how to effectively present a cause-and-effect analysis of an alleged delay, delay presentations typically focus on calculating delay days (e.g., Windows method, but for analysis, impacted as planned, etc.) or presenting damages. In other words the analysis does not focus on the cause for the delay but whether a schedule activity did or did not start or finish. General Causation Analysis Methodology In its recent Recommended Practice 29R-03, the AACE International explained the general method of determining causation of schedule delays: Forensic schedule analysis studies how specific events impact a project schedule. The forensic schedule analyst uses contemporaneous project documentation to determine which events may have caused delay (including event identification, start and complete dates, activities impacted by the event, etc.). The forensic schedule analyst then applies these events in some orderly manner to the schedule employed on the project. Once the events are added to, removed from or otherwise identified in the schedule, then a determination can be made concerning whether any or all of the events caused the project to complete later than planned. From this determination, assessment of causation can be made [7]. Legal Considerations in Proving Causation of Delay To prove causation, plaintiff must demonstrate that a particular event, action, or inaction that was not the responsibility of the plaintiff actually (directly) caused the delay to the critical path work and resulted in the eventual delay to the contractual completion date. [W]hen the claim being asserted by the contractor is based upon alleged [defendant]-caused delay, the contractor has the burden of proving the extent of the delay, that the delay was proximately caused by [defendants] action, and that the delay harmed the contractor [65]. Plaintiff bears the burden of proving discrete periods of delay to the critical path [8]. In order for a claimant to be entitled to an extension of contract time for a delay event (and further to be considered compensable), the delay must affect the critical path. This is because before a party is entitled to compensation for damages it must show that it was actually damaged. Because conventionally, a contractors delay damages are a function of the overall duration of the project, there must be an increase in the duration of the project [5]. Typical Shortcomings in Proving Causation of Delay In order to succeed with a delay claim, plaintiffs must show that actions or inactions by the defendant actually did delay project performance, rather than merely showing that they could have caused a delay [31]. Once delay to the project has occurred, plaintiff must prove that the delay was caused by the defendant. The inability to separate delays attributable to the owner from delays caused by the contractor is a common shortcoming in causation proofs. The general rule is that where both parties contribute to the delay neither can recover damage[s], unless there is in the proof a clear apportionment of the delay and expense attributable to each party. Courts will deny recovery where the delays are concurrent and the [plaintiff] has not established its delay apart from that attributable to the [defendant] [64]. Courts have held that causation of schedule delay has not been proven where, for instance, the contractor fails to keep sufficient contemporaneous records of the alleged impacts, the critical path is not adequately documented, or the expert fails to identify the specific schedule delays attributable to factors not the responsibility of the contractor [36]. While use of the contemporaneous project record is necessary to credibly prove causation of schedule delays, it is not enough on its own. [W]ithout showing how any or all of these problems specifically caused delay to the contract's critical path. [t]he sheer weight of documents is insufficient to prove liability, causation and damage. Appellant has not provided the nexus between the allegation and the claimed delay that we must have in order to find in its favor [16]. Failure to perform CPM analysis can also be fatal to proving causation in a schedule delay claim [56].

CDR.07.3

2008 AACE INTERNATIONAL TRANSACTIONS The failure of a contractor to keep an updated and accurate project schedule may also interfere with its ability to prove causation of a defendant-caused delay: Lack of updated schedules reflecting what was happening at the time the delay triggering events allegedly occurred or reflecting the schedule being modified to mitigate delays can prove fatal to a schedule delay claim [20]. The usefulness of a CPM is dependent on the extent to which it is employed in an accurate and consistent manner to comport with the events actually occurring on the job. [30 [T]he critical path can change and items not originally on the critical path can become critical. Thus, if the CPM is to be used to evaluate delay on the project, it must be kept current and must reflect delays as they occur. [35] See also [12].

Unreliable CPM schedules, such as those that appear to have been manipulated to mask true critical path work, cannot be used to support delay claims [15]. Care must be taken in selecting an expert to demonstrate causation of delays. Courts will reject the testimony of experts who use an unaccepted critical path methodology [61]. Plaintiffs cannot prove causation of delays by the schedule alone. Schedules are a project management tool that, in and of themselves, do not demonstrate root causation [4] What caused the variances often does not appear on the schedule but must be investigated and researched using project documents, data and witness interviews. [6] Plaintiffs cannot prove that defendants caused delays through broad generalities and inferences from the fact that it took much longer than anticipated to complete the contract. Plaintiff must show the nature and extent of the various delays for which damages are claimed and to connect them to some act of commission or omission on defendants part. [66] A general statement that disruption or impact occurred, absent any showing through use of updated CPM schedules, logs or credible and specific data or testimony, will not suffice to meet that burden. [51] Summary Plaintiffs must do more than show that some event that might cause schedule delay occurred on project. They must identify the direct cause of the delay. Plaintiffs can prevail with a thorough presentation of contemporaneous documentation that supports the cause of the alleged delay. Plaintiffs must show, through a reliable critical path methodology analysis, that an event not their responsibility actually delayed critical path work that, in turn, caused a delay to the contractual completion date. Cause and effect must be as specific as possible. Plaintiffs cannot rely on general statements (e.g., the jobsite was congested), but must detail causation with project documents. LOST PRODUCTIVITY CLAIMS Overview Productivity is defined by AACE as quantities produced per employee hour of effort [1]. This is shown more simply as Productivity = Units Completed / Hours Worked. Lost productivity occurs when a contractor is unable to accomplish the planned quantity of work with the planned labor effort. Presented in this simple formula: Lost Productivity = More than Anticipated Hours to Complete Unit of Work. Unfortunately, many claimants and their experts do not put enough emphasis on proving causation of lost productivity. Because of the widely accepted need to rely on expert opinion when presenting loss of productivity claims, there seems to be an unfortunate tendency for such claims to minimize the use of facts and maximize the use of opinions. This is typically done by employing approximate or generalized analyses and theories and making leaps of faith from liability to quantum, thereby glossing over the causation element [33].

CDR.07.4

2008 AACE INTERNATIONAL TRANSACTIONS Legal Considerations in Proving Causation of Lost Productivity In asserting a lost productivity claim, plaintiff must perform the very complex and contentious estimation of the amount of lost productivity. However, that alone is not sufficient to prevail in its claim. The plaintiff must also prove that events not the plaintiffs responsibility were the direct and proximate cause of the reduction in productivity: Plaintiffs have failed to recover for lost productivity when they could not do the following: show that the defendant was responsible for the claimed loss, prove that their explanation favoring recovery for lost productivity was more believable than another explanation not supporting recovery, or provide a reasonable basis for allocating additional cost among many contributing factors [39].

Plaintiff has a fundamental responsibility to prove by a preponderance of the evidence that [defendants] action caused its labor to be less efficient than planned and the extent of that impact [24]. The plaintiff must prove that a change in performance of plaintiffs work that led to increased costs and/or increased time to perform the work was caused by events that were unforeseeable when the contract or change order was entered into, that were beyond plaintiffs control, and that were caused by the defendant [2]. Typical Shortcomings in Proving Causation of Lost Productivity Merely coming up with a plausible explanation implicating the defendants actions or inactions as a possible cause of lost productivity is not enough. If there are two explanations that appear equally plausible, it is up to the claimant to show why the one that favors recovery is really more plausible [17]. One of the most common shortcomings in the proof of causation for lost productivity is the inability to separate contractor-caused and owner-caused impacts on productivity. Contractors often fail to identify their own impacts on their inability to complete work at the planned productivity rate: Lost productivity claims that do not take into consideration plaintiffs self-inflicted inefficiencies will not succeed [32]. If there is a failure to adequately account for causes of inefficiencies which are not attributable to the defendant . . . , there is no entitlement to lost productivity damages [18].

Lack of contemporaneous documentation of alleged impacting events or their alleged impacts on productivity is a serious hurdle for plaintiffs to overcome, even if plaintiffs present expert opinion testimony on causation: Courts have held that causation of lost productivity has not been proven where, for instance, the contractor fails to keep contemporaneous records of the alleged impacts on productivity, the expert witness fails to account for other relevant factors that might have caused lost productivity, or the expert fails to identify the specific lost productivity attributable to a factor not the responsibility of the contractor [37]. Where a plaintiff/contractor recognizes labor inefficiencies early in a project, courts expect that the plaintiff will create and provide contemporaneous documentation of both the fact that an impact on productivity occurred and the extent of that impact, and courts will make the inference that the contemporaneous project records do not support [a plaintiffs] position if they are not provided as evidence [25]. And, Expert opinion testimony regarding the amount of lost productivity with nothing to support it will not establish the fundamental fact of resultant injury[49]

On the other hand, good record-keeping can greatly assist proving causation of lost productivity. For example, Boards have held that well described and documented daily records of disruptive events and the resulting lost productivity helped plaintiff prove both causation and damages for lost productivity [9]. Too often, productivity inefficiency claims rest on bold assertions, broad generalizations, or anecdotes without supporting facts establishing lost productivity. For instance, mere assertions that a contractor suffered impact, but without support from contemporaneous project records or factual witnesses who actually participated in the work and could describe the inefficiencies allegedly caused by disruptive events, are not sufficient proof that defendant did cause labor inefficiencies [55].

CDR.07.5

2008 AACE INTERNATIONAL TRANSACTIONS Summary Plaintiffs must do more than simply show that events occurring on the project could impair productivity. They must prove that those events actually caused lost productivity. Detailed, contemporaneous project records (including photographs and videos) and testimony of those working on the project are key in proving lost productivity caused by defendants actions or inactions. Experts must provide causation opinions that demonstrate a cause-and-effect relationship between liability and resultant damages based on the project record. CUMULATIVE IMPACT CLAIMS Overview Cumulative impacts (a/k/a ripple effect) are defined as the inefficiencies and disruptions associated with changes which, when viewed cumulatively (i.e., retrospectively), were so large in number and/or magnitude as to give rise to a separately compensable impact claim [52]. Cumulative impact claims on their face are contentious and controversial. Proof of causation is, therefore, equally contentious and controversial. The difficulty in proving cumulative impact causation was summarized in the Centex case: Causation, in the context of a cumulative impact, can be an elusive commodity because the concept of cumulative impact is, in itself, somewhat amorphous. Several points relevant to cumulative impact and causation, however, are clear. First, the mere existence of numerous contract changes in and of themselves, whether or not the number of changes is considered to be reasonable or unreasonable and whether or not the changes resulted from defective specifications, establishes no right to recover cumulative impact costs. Consequently, contract changes alone, regardless of their number or nature combined with Government liability do not serve as a substitute for causation and do not necessarily give rise to cumulative impact damages. Second, it is clear that demonstrating an overrun in labor and the existence of numerous changes without some evidence linking the changes to the overrun is insufficient proof of causation. Finally, there must be some proof of a causal connection established showing that the undifferentiated group of contract changes affecting the changed and unchanged contract work resulted in the loss of productivity on that work. This proof may take the form of demonstrating that there are no other reasons for a loss of productivity for which the Government is not responsible [23]. Causation is the most difficult element to prove. Without proof of a causal link between the owner-directed changes and the ensuing loss of efficiency, there is no entitlement to recovery [42]. There are ways to make that causal link. As explained in one article: As a practical matter, for example, a causal link may be established by showing that the disrupting changes and disrupted work took place in the same area or used the same resources, or that performance of the changes was a prerequisite to performance of the unchanged work. Even under the cumulative disruption theory, there must be a real basis for causation. The existence of a shared working condition merely establishes potential causation. There must also be proof that the change in working conditions resulted in a loss of productivity of the disrupted work. General evidence establishing that disruption was possible will not suffice to establish disruptive causation. This need for real causal mechanisms should be used as an objective, verifiable limitation on the scope of cumulative disruption claims [34]. Legal Considerations in Proving Causation of Cumulative Impact Impact is not demonstrated solely by showing the number of changes or clarifications to the contract. General unsupported statements that a contractor suffered impact are not sufficient proof that it did, and the absence of contemporaneous documentary evidence of the disruptive effects of the work may provide reason for rejecting the claim. There must be evidence of the number, timing, and effect of the changes that were issued [41].

CDR.07.6

2008 AACE INTERNATIONAL TRANSACTIONS The principle factor that connects change orders to disruptions and lost efficiency is timing. Late changes can be particularly detrimental. Changes occurring late in the job have a progressively more disruptive impact on productivity [38]. In determining whether change orders caused a cumulative impact, courts will also consider the value of the change order work in comparison to the original contract price, as well as how much the performance period was extended in relation to the original period [53]. Industry groups have tried to provide means to determine whether a cumulative impact has occurred. Six variables identified by the Construction Industry Institute as being able to determine with 80 percent certainty whether a project suffered a cumulative impact from change orders were the following: percent of change from the original budgeted work-hours; percent of time spent by the project manager on the job site; percent of change orders initiated by the owner; whether the contractor tracked productivity; whether the project was overstaffed; and how long it took the owner to approve change orders [27].

Typical Shortcomings in Proving Causation of Cumulative Impact Reliance on the mere number of changes, without considering how they impacted unchanged work, can prove fatal to a cumulative impact claim. For instance, an experts cumulative impact testimony was deemed unreliable and inadmissible under Rule 702 where the expert relied almost entirely on the number of change orders [40]. Another hurdle is that plaintiffs must establish that the alleged cumulative impact was unforeseen and unforeseeable. "Cumulative impact is the unforeseeable disruption of productivity resulting from the 'synergistic' effect of an undifferentiated group of changes [26]." If the impact could be foreseen at the time of the change orders, then those impacts should have been taken into consideration in determining the proper price and time extension for the change order. Plaintiff cannot automatically assume that a single change or a group of changes impacted unchanged work, without proof. Lack of contemporaneous documentation of the alleged impact on unchanged work from change orders, and lack of testimony by site staff on the alleged impacts to the unchanged work, makes it difficult to prove causation of cumulative impact damages: [C]onclusive assessments of project managers and expert consultants made during the claim and dispute process are not sufficient substitutes for the contractor's underlying obligation to contemporaneously document, during the pendency of the Contract, the adverse impacts of RFIs, changes and suspensions it experienced [19]. Contractors know when a project is troubled by the impact of many changes. Upon that realization, the contractor should step up its efforts to document the impact to the work and allocate costs of specific change orders to separate cost accounts [47]. Even though it is difficult, or by definition impossible, to quantify cumulative impact in terms of man-hours and costs, the field staff must document the changed conditions which are causing the loss of productivity, such as design interferences, crowded work areas, out of sequence work, or stop-and-go work. A consistent record of problems documented contemporaneously through daily reports, RFIs, change requests and correspondence is of much greater value than any analysis or expert opinion that can be offered after the project is completed. Absent these records, the contractor will find it difficult to recover on any cost overruns, much less those caused by the cumulative impact of changes [48]. Courts give weight to the absence of project records that might have supported [plaintiffs] claims analysis, particularly where plaintiff failed to record evidence of disruptions and lost productivity arising after plaintiff identified and reserved its cumulative impact claim [21]. [T]here is no better proof of the delays caused by individual change orders than the testimony of the individual witnesses[14]

Failure to segregate the causes of cumulative impact may also bar a cumulative impact claim. Plaintiffs must account for delays and disruptions that were their fault or responsibility to successfully assert a cumulative impact claim [54]. Much like the difficulties of demonstrating resultant injury, the biggest problem with proving causation involves separating internally (contractor) caused inefficiencies from externally (Government or private owner) caused inefficiencies [43].

CDR.07.7

2008 AACE INTERNATIONAL TRANSACTIONS Summary Cumulative impact claims are difficult to prove because the concept of cumulative impact is amorphous and no one accepted method of proving such claims exists. Plaintiffs cant rely solely on the fact that there were many change orders, but they must link the number, nature, magnitude, and timing of change orders to actual unforeseeable inefficiencies and disruptions in unchanged work. Contemporaneous documentation and testimony from those who performed the unchanged work is indispensable.

ow to prove causation of schedule delay, lost productivity, and cumulative impact damages has been largely ignored by cost engineering literature, even though it is the most difficult of the required elements to prove.

Causation of such damages must be proven by expert opinion testimony based on reliable methods, in order to comply with Rule 702. This requires detailed, specific, contemporaneous records and observations showing that unforeseeable events that were not the responsibility of plaintiff actually caused schedule delays, lost productivity, or cumulative impact damages.

REFERENCES 1. AACE International Recommended Practice 25R-03, p. 1. 2. AACE International Recommended Practice 25R-03, pp. 7-8, B(2). 3. AACE International Recommended Practice 25R-03, p. 18. 4. AACE International Recommended Practice 29R-03, p. 9, 1.2(f). 5. AACE International Recommended Practice 29R-03, p. 16, 1.5(B)(7). 6. AACE International Recommended Practice 29R-03, pp. 29-30, 2.4(A)(5). 7. AACE International Recommended Practice 29R-03, p. 100, 5.2. 8. Appeal of Allen Ballew Genl. Contr., Inc., 07-2 B.C.A. (CCH) 33,465; 2006 VA BCA Lexis 4, *60 (2006). 9. Appeal of Barrett Co., Inc., 78-1 B.C.A. (CCH) 13,075; 1978 Eng. BCA LEXIS 29 (1978). 10. Appeal of Bay Constr. Co., 02-1 B.C.A. (CCH) 31,795; 2002 VABCA LEXIS 4, *86 (2002). 11. Appeal of the Clark Constr. Group, Inc., 2000-1 B.C.A. (CCH) 30,870; 2000 VABCA LEXIS 4, *91-92 (2000). 12. Appeal of Coffey Constr. Co., 93-2 B.C.A. (CCH) 25,788; 1993 VABCA LEXIS 3, *39-42 (1993). 13. Appeal of Dawson Construction Co., Inc., 93-3 B.C.A. (CCH) 26,177; 1993 VABCA LEXIS 20, *187 (1993). 14. Appeal of Freeman-Darling Co., 89-2 B.C.A. (CCH) 21,882; 1989 GSBCA Lexis 191, *67 (1989). 15. Appeal of Hensel Phelps Constr. Co., 99-2 B.C.A. (CCH) 30,531; 1999 ASBCA LEXIS 123, * 25-27 (1999). 16. Appeal of Kaco Contr. Co., 01-2 B.C.A. (CCH) 31,584; 2001 ASBCA Lexis 146, *87 (2001). 17. Appeal of The Piracci Corp., 82-2 B.C.A. (CCH) 16,047; 1982 GS BCA LEXIS 14, *148 (1982). 18. Aetna Cas. and Surety Co. v. Hyman Constr. Co., 1998 U.S. Dist. LEXIS 22627, *262-264 (E.D. Pa. 1998) (citation omitted). 19. Allen Ballew, supra., 2006 VABCA LEXIS 4, *59-60. 20. Bay, supra, 2002 VABCA LEXIS 4, *88. 21. Bechtel, supra., 1989 NASABCA LEXIS 6, 109-110. 22. Centex Bateson Constr. Co., 99-1 B.C.A. (CCH) 30,153; 1998 VABCA LEXIS 14, *275-276 (1998). 23. Centex Bateson, supra., 1998 VABCA LEXIS 14, *268-70. 24. Clark supra, 2000 VA BCA LEXIS 4, *91-92. 25. Clark, supra, 2000 VABCA LEXIS 4, *94-95. 26. Coates Indus. Piping, Inc., 99-2 BCA 30,479; 1999 VABCA LEXIS 13, *47 (1999). 27. Construction Industry Institute, Quantifying the Cumulative Impact of Change Orders for Electrical and Mechanical Contractors, Research Summary 158-1, p. 16 (2000). 28. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593-94 (1993). 29. Dawson, supra,1993 VABCA LEXIS 20, *187. 30. Dawson, supra, 1993 VABCA LEXIS 20, *185. 31. Dawson, supra, 1993 VABCA LEXIS 20, *207-208. 32. Dawson, supra, 1993 VA BCA LEXIS 20, *214-215. 33. Finke, Claims for Construction Productivity Losses, 26 Pub. Cont. L.J. 311, 334 (1997). 34. Finke, supra, 329 (footnotes omitted).
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2008 AACE INTERNATIONAL TRANSACTIONS 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. Fortec Contractors v. United States, 8 Cl. Ct. 490, 505 (1985) (internal citations omitted). Fru-Con Constr. Corp. v. United States, 43 Fed. Cl. 306, 335-37 (1999), affd., 250 F.3d 762 (Fed. Cir. 2000). Fru-supra, 335-37 (1999). Galloway, et al., Cumulative Impact, Nielsen-Wurster Communique Vol. 2.6, June 2007, p. 7 (footnotes omitted). Ginsburg, et al., Loss of Efficiency, 85-12 CONSTRUCTION BRIEFINGS (1985). Hensel Phelps, supra, 1999 ASBCA LEXIS 123, * 24. In re Bechtel National, Inc., 90-1 B.C.A. (CCH) 22549; 1989 NASABCA LEXIS 6, *107-109 (1989). Jones, Lost Productivity: Claims for the Cumulative Impact of Multiple Change Orders, 31 Pub. Cont. L.J. 1, 37-38 (2001). Jones, supra, 38. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149-50 (1999). Lake Michigan Contractors, Inc. v. The Manitowac Company, Inc., 225 F. Supp. 2d 791, 794-804 (W.D. Mich. 2002). Libas, Ltd. v. United States, 193 F.3d 1361, 1365-66 (Fed. Cir. 1999). Long, Cumulative Impact Claims, 8.1, p. 37 (Long International, Inc. 2005). Long, supra, 8.1, pp. 37-38. Luria Bros & Co. v. United States, 369 F.2d 701, 712 (Ct. Cl. 1966). Markis, Paul E., PE. Proving Causation (2004 AACE International Transactions, CDR.05) Preston-Brady, Co., Inc., 87-1 BCA (CCH) 19,649, at 99,520, 1987 VA BCA LEXIS 86, *127 (1987), clarified on denial of recon., 87-2 BCA (CCH) 19,925, 1987 VA BCA LEXIS 78 (1987). Pittman Constr. Co. v. United States, 2 Cl. Ct. 211, 216 (1983) Pittman, supra, 216-217. Pittman, supra, 217. R.W. Contracting Inc., 84--2 BCA 17,302; 1984 ASBCA LEXIS 594, *33-37 (1984). Sauer v. Danzig, 224 F.3d 1340, 1346 (Fed. Cir. 2000). Servidone Construction Corp. v. United States, 931 F.2d 860, 861 (Fed. Cir. 1991). Sternberger v. United States, 401 F.2d 1012; 185 Ct. Cl. 528, 535-36 (1968). Steward Machine Co., Inc. v. White Oak Corp., 462 F. Supp. 2d 251, 263 (D. Conn. 2006). Story Parchment Co. v. Patterson Parchment Paper Co., 282 U.S. 555, 562 (1931). Sunshine Constr. & Engg., Inc. v. United States, 64 Fed. Cl. 346, 368-370 (2005). Tyger Constr. Co., Inc. v. United States, 31 Fed. Cl. 177, 256 (1994). United States ex. Rel. CMC Fabricators, Inc. v. Harrop Constr. Co., Inc., 131 F. Supp. 2d 882, 886 (S.D. Tex. 2000), affd., 61 Fed. Appx. 120 (5th Cir. 2003). William F. Klingensmith, Inc. v. United States, 731 F.2d 805, 809 (Fed. Cir. 1984). See, also, Tyger, supra, 256. Wilner v. United States, 24 F.3d 1397, 1401 (Fed. Cir. 1994). Wunderlich Contracting Corp. v. United States, 351 F.2d 956, 968-69; 173 Ct. Cl. 180 (1965).

CDR.07.9

2008 AACE INTERNATIONAL TRANSACTIONS

Mr. James E. Krebs, PE CCE Administrative Controls Management jek@acmpm.com

Mr. Michael J. Reynolds, JD Barris, Scott, and Driker mreynolds@bsdd.com

CDR.07.10