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Impacts
• Definitions
• Methods of Evaluating Delays
• Best Practices
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Classification of Project Delays
(Risk Point of View)
•Non-excusable
•Excusable
–Compensable
–Non-compensable
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Non-excusable Delays
• Contractor problems result in schedule
impacts
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Excusable Compensable
Delays
• Owner or owner’s agent problems result
in schedule impacts
• Contractor eligible for time extension
• Contractor eligible for extended
“General Conditions” cost
• Contractor has to meet burden of proof
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Concurrent Delays
Definition:
• “Concurrent Delay” is experienced on a
construction project when two or more
separate delay events occur during the same
time period.
• Multiple causes to a critical path delay with
both contract parties involved. In the
absence of one party’s cause, the other
party’s cause will govern.
• The schedule has more than one critical path
with a separate delay affecting each at the
same time (very rare)
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Concurrent Delays
• Significance
Determines compensability
• Apportionment:
Where both parties contribute to the
delay neither can recover damages
unless there is clear evidence by which
we can apportion the delay and the
expense attributable to each party
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Concurrent Delays
Elements:
• Two or more delays occur during the same time period
• Both delays impact the critical path
• Delays may be caused by either or both parties, or
unforeseen events
• In the absence of one delay event, the other delay
event will govern.
Governing Rules:
• The float belongs to the project
• Both parties have the right to use any additional float
• The Critical Path with respect to a specific milestone is
the path with the least total float
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Concurrent Delays:
Result:
5 excusable (non-compensable) days to contractor
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Concurrent Delays:
• Concurrent delay by contractor and an uncontrollable
event is excusable but not compensable
Critical Path Activity
9 Delay events occur
during the same time
Contractor period
5 Days of CP Slippage
Delay: 5
days lost 9 They impacted the critical
due to path
productivity Critical Path Activity
issues 9 In the absence of one
delay event, the other
3 days of Rain delay event will govern.
Result:
3 excusable (non-compensable) days
2 non-excusable days
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Concurrent Delays:
•Concurrent delay by owner and an uncontrollable event
is excusable but not compensable
Critical Path Activity
Result:
10 excusable non-compensable days
5 excusable compensable days
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Example: Delays Concurrent
Owner Delay Impacting
Framing Activity (12 days)
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WF L1 WF L2
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TF=5 days
Submittal/Fabrication L2 9 Delay events occur
during the same time
7 period
Contractor Delay Impacting
Fabrication (7 days)
9 They impacted the critical
path
Result:
7 days of Concurrent Delay
(Excusable, Non-compensable)
5 7
Non-critical Delay
7 CP Delay
WF L1 WF L2
5 7
Submittal/Fabrication L2
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Example: Delays not Concurrent
Owner Delay Impacting
Foundation Activity
15 9 Delay events occur
TF=5 during the same time
Foundation Steel Erection
period
Steel Fabrication
Contractor has the right to
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Added Float use the added float
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Methodology for Delay
Quantification
• Total-Time Schedule Approach
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Total-Time Approach
Owner-
As-planned Duration caused
Project
Delay
As-built Duration
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Adjusted As-Planned Approach
Owner-
As-planned caused
Project
Delay
Owner-
caused
Delay
Adjusted
As-planned
Owner-
caused
Delay
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Collapsed As-Built “But For”
Approach
As-planned
Owner Delay
As-Built
Contractor Delay
Owner-caused
Collapsed Project Delay
As-built Contractor Delay
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Contemporaneous Approach
2 Delays
As-planned
Contractor-caused
Contractor-
Update Project Delay
caused
Date
Delay
1st Delay
Owner-caused
Owner-
Contractor- Project Delay
caused
caused Delay
Delay
2nd Delay
Update
Date
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Contemporaneous Approach
Same but Owner Delay Happened First
As-planned
Owner-caused
Owner-
Update Project Delay
caused
Date Delay
1st Delay
Owner-
caused
Delay No Project
Delay
2nd Delay
Contractor-
Update caused
Date Delay
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Contemporaneous Approach
“TIA Event Update Analysis”
“ Fragnet Analysis”
• The importance of timing: When the delay-causing
events occurred
• What was the Critical Path when the delay-causing
events occurred
• Using current schedule updates as the basis for
analysis
• Takes into account the dynamic nature of the
schedule
• Concurrency and therefore compensability of delays
can be evaluated.
• The most preferred method
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LAUSD Scheduling Specification
• Calls for contemporaneous Fragnet
approach
• Requests supporting elements:
Baseline schedule, weekly and monthly
schedule updates
• Baseline and monthly schedule
submittals reviewed/accepted for quality
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LAUSD Scheduling Specification;
Steps
• Contractor recognizes an impact
• Contractor notifies District of actual or
potential impact in a timely manner
• Pre-delay schedule prepared by Contractor
• Pre-delay schedule approved by District
• Delay Fragnet prepared by Contractor
• Delay Fragnet approved by District
• Net impact calculated/negotiated
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Projected Delays
• Projected delays are delays or portions
of a delay that extend into the future
• They are time estimates
• They affect the Critical Path
• LAUSD Specifications calls for the
approval of projected delays (Fragnets)
before they can be incorporated into the
schedule
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Projected Delays
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Risk!!!!
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Risk!!!!
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Risk!!!!
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Elements of Constructive
Acceleration
• Based on the owner’s unjustified
refusal to grant a time extension or
failure to act
• Requires that:
– A cause exists that would justify a time extension
– A proper request for a time extension
– Denial of that request
– Demand (express or implied) that performance be
completed on time
– An actual acceleration
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Best Practice
• Enforce the contract requirement for a
good baseline schedule and schedule
updates with a narrative for each as
required
• Enforce the contract requirement for a
formal notice announcing a potential delay
• Enforce the contract requirement for a
Fragnet showing Critical Path impact
• Enforce the contract requirement for
timely submittal of all the above
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Best Practice
• Do not waive the contract requirements
by your act or failure to act
– Do not give up on sending a letter
requesting the schedule submittal
– Do not give up on sending a letter
requesting a Fragnet as backup for a COP
requesting time extension
– In your requests, always explain the
reasons why you need the schedule or the
Fragnet.
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Best Practice
• Use the “Notice of Event” tool to establish
a track record of communication on
potential delays. This will reduce
surprises at the end of the project
– District has contractual right to know so it
can make decisions to mitigate and/or
evaluate options
– Investigate the criticality of the issue and act
on it
– Respond to the notice until closed
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Best Practice
• When scope is added to the Critical
Path, shift the risk to the contractor as
soon as possible
– District has no control over the execution of
the added scope and therefore should not
be assuming the risk
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Best Practice
• When scope is added to the Critical Path,
shift the risk to the contractor as soon as
possible
– Request the time estimate and schedule
analysis
– Negotiate time
– Contractor has right to reasonable
contingency, not sandbagging
– Consider recovery schedules, if applicable
– Make them commit
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Best Practice
• Analyze and negotiate delays on a monthly
basis.
– Calculate the net monthly Critical Path
slippage, if any
– Request Fragnets, if not submitted yet
– Allocate/proportion delaying factors (owner,
contractor, concurrent)
– Schedule a meeting to understand/negotiate
– Always take the initiative to document/issue
the results of the meeting even if only partial
or no agreement is reached
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Best Practice
• Analyze and negotiate delays on a
monthly basis.
– Negotiation meetings must address all
claimed delays that affected the project
within a specific time frame
– The objective is to resolve delays up to the
end point of the time frame
– Assumptions on projected portions of a
delay must be documented as part of the
agreement
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Best Practice
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Best Practice
• Demonstrate good faith even if the
Contractor is not cooperating
– If you’re able to reach only partial resolution
with the Contractor, isolate the disputed
portion and issue a separate unilateral CO
for this portion
– If you’re unable to reach any resolution with
the Contractor, issue a unilateral CO for
time extension
– Avoid constructive acceleration by
discussing recovery options
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Key Points to Remember
• Communicate
• Document
• Enforce the requirements of your
contract
• Do not waive the requirements by your
act or lack of action
• Shift the risk to the Contractor, for work
that you have no control over, as soon
as possible
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Key Points to Remember
• Negotiate time impacts on a monthly
basis
• Demonstrate good faith even if the
Contractor is not cooperating
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QUESTIONS?
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