Basic Concepts and Principles of Construction Claims

1. Introduction

1.1. Construction Claims

What is Construction Claims?

A construction claim is the assertion of a right demanding either additional time or/and payment due to the result of an action. It is possible to meet construction claims in all construction projects.

Why do Construction Claims occur?

Clients, contractors, and subcontractors of this environment try to reach their own goals and expectations in order to increase their benefits. Conflicts may arise as a result of this diversified goals and expectations of parties.

They can be originated by several other reasons such as inadequate project planning, changes in scope, change orders, errors and omissions.

What is the consequence?

If the conflicts are not managed successfully, disputes which affect the successful completion of the construction project may arise.

1.2. Claim Management

Claim management is an unavoidable process in construction project management which requires effective management practices during the entire life cycle of a project.

A typical claim management process basically has 4 phases as follows:

  • Claim Prevention: The claim prevention process is activated at the Pre-tender and Contract Formulation phases of a project. Contract documents project plans and scope of work should include all requirements related to the project because after the award of contract the opportunity to prevent claim comes to an end.
  • Claim Mitigation: Construction activities are generally performed in highly sensitive and outdoor environments. It is better to minimize the possibilities of occurring claim all through the progression of the contract. A well-defined scope, responsibilities and risks will help to decrease the possibility of occurrence of claims. Also, risk management plans play important roles in the phase of claim mitigation.
  • Pursuing Claims (Claim Identification and Quantification): Claim identification can be done by analyzing both the scope of work and the provisions of the contract. Inputs of the claim identification process are the scope of work, contract terms, definition of extra work and definition of extra time requested. Once an activity is identified as a claim, it will be quantified in terms of an additional payment or a time extension to the contract completion or other milestone dates. In this phase, a schedule and critical path analysis should be made in order to calculate the delay of the project. In addition to that, additional direct and indirect costs originated from the claimed activity should be calculated.
  • Claim Resolution: Claim resolution is a step by step process to resolve the claim issues. If an agreement between the parties is reached, then the claim is resolved and becomes a change order. If the agreement is not reached, depending on the resolution terms of the contract the claim may proceed to negotiation, mediation, arbitration, and litigation before it is completely resolved.

2. Characters of a Highly Impacted Project

A lot of projects are out of control and headed for claims and disputes. The characters of these projects are described as follows:

  • The contractor bids on incomplete design documents;
  • The contract is awarded to the lowest bid contractor but not necessarily the most qualified;
  • The owner/engineer issues a large number of design changes;
  • The owner is inadequately staffed to process the multitude of change orders and respond in a timely manner to the numerous RFI from the contractor;
  • The contractor fails to prepare an adequate as-planned or baseline schedule to identify the planned sequence and duration of work;
  • The contractor fails to maintain an accurate and updated progress schedule including identification of changes and cause of delays;
  • The contractor requests a time extension that is denied because of inadequate support to recognize excusable delays;
  • The project is completed late, the owner has paid a significantly higher price for many changes, the contractor now has a big delay and impact claim, and the owner withholds payments to cover its liquidated damages.

3. Effect on the Project

Large value claims may destroy the viability of a project or make construction more difficult by adding to the disappointment between the owner and contractor. If a sizable claim is found to be valid, an owner faces serious problems. New financing may be required, later occupancy may be necessary, income from operation of the facility or rent from commercial property may be delayed or lost, and staffs may have to be funded longer than planned to administer the project.

Most owners include contingency funds in their project budgets to cover the cost of claims. However, the contingency funds are usually limited and seldom are large enough to handle claims. If a project experiences unfunded cost increases, emergency actions may be required, such as a temporary halt to construction, requesting special appropriations, financing by additional borrowing.

Almost any of these solutions create serious problems for the owner, as well as the contractor, because lost time costs money. Nonreceipt of payments resulting from incurred costs not envisioned in the contract price may result in the contractor’s financial capability becoming dangerously unstable, and his being unable to pay his subcontractors or suppliers. Subcontractors, in turn, may default and the project may collapse due to a lack of resources and money.

4. Situations Causing High-cost Claims

From Contractor:

  • Inadequate site investigation before bidding: Too often, the contractor will bid work without performing an adequate site investigation into areas such as availability of qualified labor, labor productivity, weather patterns, underground conditions, and other competing projects in the area that would compete for the available labor. As a result of not doing their homework adequately, contractors may then take every opportunity to prepare change order requests or file claims to make up for their bid errors.
  • Bidding below costs and over optimism: this practice would be considered a deliberate underbid, presumably justified to break into a new geographic market or new line of work. After the excitement of winning the job disappears and the reality of losing big money on the project occurs, contractors may be persuaded to seek every opportunity to submit requests for change orders or file claims.
  • Slow mobilization: Many contractors do not perform sufficient planning in advance to effectively mobilize for the project. After contract award, the owner informs the contractor that the site is available and ready for mobilization to begin. In a design-build or EPC contract, the start of construction is often optimistically planned to occur earlier than when the approved for construction drawings are actually completed, and equipment and materials are procured and delivered. Also, contractors may not move on to a site in an efficient or timely manner because of insufficient planning regarding the equipment and labor needs that are required.
  • Poor planning and use of wrong equipment: the means and methods contemplated by the contractor’s estimators to achieve the productivities anticipated by their bids are often not implemented in the field because inadequate planning is performed prior to mobilizing to the site. When lower than anticipated productivities are experienced, contractors will be on extra alert to identify claim opportunities.
  • Inadequate cost and schedule control systems: these problems are associated with imperfect management planning and control. Possible explanations for why estimated costs for project activities are so inaccurate when compared to actual costs, and why planned schedules experience significant delay, include poor definition of work activities and improper control of schedules.
  • Performing defective work: Owners may need to withhold progress payments from contractors that have performed defective work. The delay to the project completion caused by the time required to correct these defects may also justify the owner’s liquidated damages claims.

From Owner:

  • Inadequate and ambiguous scope definition in the bid documents: a project’s scope must be defined in enough detail for comprehensive scheduling, estimating, and resource allocation to be reasonably accomplished. Whenever the owner is unwilling to make a concerted effort to define the construction project in the early stages, problems will undoubtedly occur throughout the entire project life cycle.
  • Inadequate time provided for bid preparation: Owners are always under economic pressures to start and complete a new project or a modification to an existing facility. As a result of these pressures, owners may rapidly prepare incomplete bid packages and then request fixed price or unit price bids by a date that does not provide the contractor with an adequate time period to investigate the site conditions, thoroughly read and understand the owner’s specifications, verify the accuracy of the owner’s quantities, secure quotations for equipment and materials, prepare an adequate project schedule, and estimate its costs for performing the work. When this occurs, the contractor can either choose to add significant contingencies to its estimate to cover the risks and hope that its bid is still within the owner’s budget, or bid competitively in spite of the risks and hope that if it wins the bid, it can recover any unanticipated costs through change orders and/or claims.
  • Competitive bidding: competitive bidding is the procurement practice in which the contractor, who leaves the most money out of his estimate (usually as contingencies), gets the job. The lowest bidder is also the one faced with the highest danger of loss if contingencies, i.e., risks, are encountered. They will search ways to cut losses by seeking additional funds through changes. While competitive bidding is often a sound procurement practice, the owner must recognize that a bid that is significantly below the other bidders is a claim waiting to happen.
  • Major changes in the plans and specifications during construction: the owner is ultimately responsible for defining the scope of a project during the conceptual phase of the project; the scope will probably change quite frequently. However, changes that occur during the construction phase or even detailed design phase inevitably make life difficult for the construction contractor. Scope changes result from a number of situations, such as owner preferences, design reviews, constructability issues, safety requirements, hazardous operations reviews, and operations and maintenance concerns.
  • Unrealistic schedules and underestimated costs: Whenever time schedules and/or project costs are based on optimistic predictions of labor productivity, availability of skilled labor, good weather, quantities based on an incomplete design, etc., the project will be burdened with missed milestone dates, cost overruns, and even low morale among project personnel. Sufficient time must be allocated in the planning stage of a project to accurately estimate time and cost requirements.
  • Owner-furnished materials: owners typically want to procure and furnish their own equipment for unique projects, such as power plants, chemical plants and refineries, because of favorable purchasing agreements with vendors or the special needs associated with such projects. Most owners fail to understand that contractors have specific materials management plans for the project – a plan for when that material will be installed and where it’s going to be stored once it arrives at the site. Most owners have the mistaken belief that whenever owner-supplied material arrives on the site, the contractor can efficiently store or install the materials. The sequence of delivery of bulk material items such as structural steel, large bore piping, and piping supports is extremely important to the contractor’s efficiency. Owners and contractors must thoroughly coordinate and schedule the delivery of these items. Contractors usually have installation schedules that they plan to follow, and this type of misunderstanding leads to significant material management problems.
  • Failure to give adequate and timely access to the work site: when an owner does not provide the contractor with adequate access to the work site to complete its work in the timeframe and in unobstructed conditions that were anticipated in its bid, the contractor may file a delay and loss of productivity claim for the increased costs resulting from the access problems.
  • Delayed approval of submissions, shop drawings or materials: these types of delays can often affect activities on the critical path of the project schedule and cause delay claims. The contract should state the turnaround time that is available to the owner to perform these tasks. In addition, the contractor should always state in its transmittals the date when it needs a response.
  • Unclear definition of Mechanical Completion: owners typically designate the Mechanical Completion Date as the key completion milestone in the contract. When these dates have occurred, the owner can begin to start-up the facility. Also, this date is usually the date from which liquidated damages are measured. Final Completion is the last milestone before the contractor can completely demobilize. Often, the contractor is merely completing punch list work or certain miscellaneous work that was not necessary for Mechanical Completion. Disputes often occur at the end of the project if the definition of Mechanical Completion is unclear. The contractor knows what it has to do for Final Completion, but each owner’s requirement for Mechanical Completion may be different. For example, are as-built drawings and operating manuals required for Mechanical Completion? If the owner requires these items before it will agree to the contractor’s declaration of Mechanical Completion, but the contractor was planning to submit these after it declared Mechanical Completion, a dispute may occur over liquidated damages.

5. Reasons for Forensic Schedule Analysis

Forensic schedule analysis may include a prospective or forward-looking method which uses the contemporaneous schedules to forecast the impact from a current or future event. It may also include a retrospective or backward-looking method which uses the as-built schedule. The reasons for performing a forensic schedule analysis can be numerous and often concern the following issues:

  • Relief from liquidated damages;
  • Justification for a time extension;
  • Proof of delay mitigation;
  • Change Order impact to the critical path;
  • Proof of concurrent delay versus “pacing”;
  • Demonstration of schedule acceleration (i.e., Time Impact Analysis results compared to as-built schedule); and
  • Recovery of compensable delay.

6. Claim Entitlement Identification

Entitlement is the legal basis of the claim. It may be derived from the language of the contract (for example, the Changes Clause). A thorough understanding of construction contract entitlement is a mandatory prerequisite to the identification of issues on a project that give rise to a contractor’s recovery of increased time and cost of performance. This understanding is also necessary for the analysis and preparation of a claim.

A few typical claim entitlements are listed below:

  • Delays: problems beyond the control and without the fault or negligence of the contractor that prevent the contractor from proceeding with any part of the work.
  • Disruption: any change in the method of performance or planned work sequence, contemplated by the contractor at the time the job was bid, that prevents the contractor from actually performing its work in that manner.
  • Directed Change: the owner enjoys the right to make any change that generally falls within the scope of the contract.
  • Acts of God/Adverse Weather: typically good for a time extension only if the conditions vary substantially from the norm.
  • Differing Site Conditions: two types: (1) subsurface or hidden physical conditions at the site differing materially from those indicated in the contract; and (2) unknown conditions at the site of an unusual nature.
  • Acceleration: performance of the contract work in a time period shorter than that originally contemplated by the contract or performing on time when the contractor is entitled to a time extension for performance.
  • Defective and Deficient Contract Documents: if the contractor is bound to build according to plans and specifications prepared by the owner, the contractor will not be responsible for the consequences of defects in the plans and specifications.
  • Owner-furnished Items: the owner’s failure to furnish items in accordance with the contract.
  • Variation in Quantities: the importance to the contractor is whether its unit prices are sufficient to cover its overhead and other costs if the number of units significantly changes from the owner’s estimated quantities used to prepare the contractor’s bid.
  • Strikes: typically good only for a time extension.
  • Suspension: the owner’s directive that work be stopped on a part or the whole of the contract.
  • Termination: two types: (1) termination for convenience resulting from factors outside the contract; and (2) termination for default when a contractor’s performance is not acceptable.

On a heavily disrupted project. one or a combination of several of the above entitlements may provide to the contractor the contractual basis for compensation for the increased cost of the work or extended duration of performance.

7. Establishing The Cause-Effect Link

A contractor’s claim request must clearly identify what actions or inactions by the owner caused the compensable liability and which of the entitlements bear a direct relationship to the financial loss or schedule impact. This establishes the important cause-effect link that is necessary to support a construction claim, as shown in the figure below.

If the contractor does not comply with the stipulated requirements in the contract, a contractor’s claim may be rendered invalid and rejected due to lack of contract compliance. All contractor claims must be supported by contemporaneous project records and documentation. More specifically, the crucial element of proof needed for delay claims should be based on the contemporaneous project schedules used to execute the work.

8. Assessment of Schedule Quality

The underlying foundation for developing a supportable forensic schedule analysis depends on the quality and reasonableness of the project schedules. Checking the integrity of project schedule for obvious deficiencies is vital to ensure that the schedule is accurate and reasonable. If significant deficiencies exist, then the schedule used to measure, allocate, and assign critical path slippage could be flawed, and any resulting conclusions regarding the schedule analysis could be rendered unreliable.
Some vital schedule issues to evaluate include the following:

  • Determine if the schedule complies with the contract documents;
  • Ensure that the original contract scope and approved change orders are accurately reflected in the schedule;
  • Check schedule integrity; and
  • Compare schedule updates to the baseline schedule to identify significant changes.

8.1. Schedule Complies with Contract Documents

An essential starting point is a thorough review and understanding of the contract documents. It is important to fully understand what documents and drawings are included and how they work together to define the scope of work. The various terms and conditions that define the contract administration procedures, notice requirements, responsibilities, and other contractual duties should be considered.

More specifically, the contract documents will likely define, limit, or at least influence the direction of a schedule delay analyst and the selection of the appropriate schedule analysis method.

Other contract clauses and requirements that need consideration regarding schedule delay are summarised as follows:

  • Liquidated Damages
  • Time Extension
  • Changes
  • Mechanical Completion / Substantial Completion
  • Weather
  • Timely Notice
  • No Damages for Delay
  • Inspection of Site Conditions
  • Differing Site Conditions

8.2. Original Contract Scope and Approved Changed Order

An important quality check is to ensure that the complete original scope is represented in the project schedule. On large and complex projects, it is not unusual to find some of the original contract scope to be missing and accidentally excluded from the baseline schedule. This is especially the case when a rolling wave schedule development technique is utilized by the contractor. Therefore, it is important to verify to the extent possible that all required contract scope is represented in the baseline schedule. This is done by going through a verification process of the contract documents and other available project information to determine that the schedule accurately reflects the contractual Scope of Work. Areas for review may include the following:

  • Engineering, including owner approvals of drawings and specifications;
  • Procurement, including equipment and material delivery durations and customs clearance activities;
  • Construction, including the necessary detail to ascertain if all work is included and the critical path is realistic;
  • Pre-Commissioning activities;
  • Start-Up and Commissioning activities; and
  • Quality assurance and quality control activities.

Omission of a required portion of the original work scope within the project schedule could produce a project schedule with an overly optimistic duration for the work because the full scope is not reflected in the schedule. As a result, forecasted early and late dates, float values, completion dates, and the calculated critical path may be unreliable.

In addition, if approved change order work is required to be incorporated into the project schedules, existing activity durations may need to be adjusted or fragnet activities may also need to be added to represent approved change order work in the schedule.

8.3. Schedule Integrity

Because the project schedule is a key management tool for measuring project progress over time, the project schedule should accurately reflect the impacts on specific works, milestones, and completion date. However, it is not unusual for the project schedule to be deficient because activity logic is missing, contractual milestones are artificially constrained, and actual dates are incorrect.

If a multitude of errors and deficiencies in the underlying schedule data exist, then the legitimacy of the schedule analysis may be invalid. Moreover, problems associated with the accuracy of project schedules may mask the true driving impacts that caused schedule delays. Therefore, the basis for claims may be in question. It is important to evaluate the quality and reasonableness of project schedules and identify potential areas of deficiencies that affect schedule accuracy. Common items that can negatively affect the quality of a schedule include the following:

  • Excessive number of open-end activities;
  • Overly long activity durations;
  • Activities with excessively high float values;
  • Conflicting as-built dates;
  • Overuse of negative lags;
  • Excessively long positive lags;
  • Excessively long negative lags;
  • Overuse of constraints; and
  • Activities with incorrect status.

Without fixing these problems, the allocation of delay responsibility may be entirely wrong.

In the following paragraphs, some of these deficiencies are examined.

Excessive number of open-end activities:

  • Open-end activities are defined as activities that have no predecessor, no successor, or both. In theory, all activities should have at least one predecessor and one successor except for: (1) the project start activity (no predecessor activity); and (2) project completion activity (no successor activity).
  • At a minimum, good scheduling practice should have a very small number or no activities with open-ends. A large number of open-end activities will create erroneous float within the schedule (in Primavera P6, the project start or finish date will be used to calculate the total float of open-end activities). Correcting open-end activities will change float values that may affect the critical activities.

Activities with excessively high float values:

  • Float is defined as the amount of available time that the start or finish of an activity can be delayed without impacting a project’s overall finish date.
  • Schedule paths with high float values typically arise due to artificially constrained activities or other very long parallel critical paths. High float values can also result from a large number of activities with open-ends, which is a major issue.
  • Schedules with a large number of high float activities should be examined and corrected for open-ends or missing logic links that would better optimise the planned dates of activities with high float values.

Inconsistent Use of Schedule Calculation Modes:

  • Retained logic is often the default calculation mode that contractors typically use for calculation of the schedule. Another type of scheduling calculation mode is progress override. Progress override is typically used to accelerate a schedule which allows out-of-sequence work activities to progress without delay and not wait until its logical predecessor is complete.
  • In many cases, contractors will use progress override as a way to update a schedule without having to spend the time correcting out-of-sequence work activities. If no reasonable explanation by the contractor is provided, then the inconsistent switching of schedule calculation modes between updates is a deficiency.
  • A consistent use of schedule calculation mode as represented by the baseline schedule should be used for the schedule updates.

Overuse of Constraints:

  • Constraints are defined as restrictions on either the start or finish of an activity.
  • A large number of constraints should be avoided. Constraints artificially lock down a schedule and prevent a schedule to naturally “flow” during a forward and backward pass calculation to determine activity float values and the critical path of the project.
  • The use of a constraint that affect or alter the critical path should be avoided.
  • Constraints are also too often used as a shortcut tactic by schedulers when they do not have enough time to properly update the schedule or account for out-of-sequence activities.

8.4. Compare Schedules To Identify Significant Changes

Popular delay analysis methods often employ some form of windows analysis approach, or schedule just before the delay event occur (e.g. TIA). These methods require the accuracy of contemporaneous schedule updates. Therefore, it is important to compare the schedule updates to the baseline, and between the schedule updates to identify changes made. Important schedule comparison checks include the following:

  • Added and Deleted Activities;
  • Activity Duration Changes;
  • Changes to Activity Scope/Names;
  • Changes to the Critical Paths;
  • Changes to the Schedule Logic; and
  • Added Constraints.

The bottom line is that significant schedule changes must be supported by reasonable explanations. If no reasonable explanations are provided, the schedules used to support a delay claim may be at risk.

Reference:

Articles from Long International Inc. (http://www.long-intl.com/)

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