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07-Str-B2 · May 2017

Question 2 of 6: Litigation — delay claims, contractual prevention, settlement routes and delay analysis

Nivaar worked solution (AI-drafted; not reviewed by a licensed engineer)

Notes on this paper

Paper format: National Exams, May 2017 — 07-Str-B2 Management of Construction. Three hours, closed book, one approved Casio or Sharp calculator permitted. Six questions of equal value (20 marks each); any five constitute a complete paper and only the first five answered in the answer book are marked. All six are worked below so the paper can be used for revision whichever five a candidate chooses.

Reference texts: Hegazy, T., Computer-Based Construction Project Management (Prentice Hall) — activity-on-arrow networks, event-time calculations, time–cost trade-off and least-cost crashing, project cash flow and overdraft financing, and labour productivity; these chapters cover Questions 1, 3 and 5. Hendrickson, C. & Au, T., Project Management for Construction (2nd ed., Carnegie Mellon) — Chapter 10 (fundamental scheduling procedures), Chapter 11 (advanced scheduling techniques) and Chapter 12 (cost control, monitoring and accounting), including the S-curve and the financing of construction operations. Halpin, D.W. & Senior, B.A., Construction Management (4th ed., Wiley) — construction financing and the interest cost of a negative cash position, labour productivity and motivation, and construction safety management. Sullivan, W.G., Wicks, E.M. & Koelling, C.P., Engineering Economy (17th ed., Pearson) — Chapters 5 and 6, present-worth analysis and the repeatability (common multiple of lives) assumption for alternatives with unequal lives, used in Question 4. Peurifoy, R.L. & Schexnayder, C.J., Construction Planning, Equipment and Methods (9th ed., McGraw-Hill) — site layout and the physical determinants of crew output. AACE International, Recommended Practice 29R-03, Forensic Schedule Analysis, and the Society of Construction Law, Delay and Disruption Protocol (2nd ed., 2017) — the delay-analysis taxonomy required by Question 2. Canadian Construction Documents Committee, CCDC 2 — Stipulated Price Contract (2020), CCDC 40 — Rules for Mediation and Arbitration and CCDC 220/221/222 bond forms — the Canadian contractual machinery for notice, claims and dispute resolution. Transportation Association of Canada, Manual of Uniform Traffic Control Devices for Canada (MUTCDC), and the BC Ministry of Transportation and Infrastructure Traffic Management Manual for Work on Roadways, together with WorkSafeBC's Occupational Health and Safety Regulation (Part 18 Traffic Control, Part 4 lighting and workplace conditions, Part 8 personal protective clothing) — the Canadian rule set behind Question 6.

Question 1 (network). The node numbers, the activity letters and the i–j pairs printed in the data table agree completely with the drawn arrows: solid arrows run 1→2, 1→3, 1→4, 2→3, 2→6, 3→5, 3→6, 4→5 and 5→6, and one dashed arrow runs 2→5. The dashed arrow carries no letter in the table, so it is the network's dummy activity with zero duration and zero cost. Every arrowhead was checked individually at 8× magnification.

Question 5(b) (cash-flow chart). The values below are read from the printed chart. The smooth curve (cash out) reads 4.0, 11.5, 15.5, 45.0, 54.0, 71.5 and 71.5 thousand at the ends of months 1 to 7; the staircase (payment received) rises at the end of months 2 to 7 to 4.0, 12.5, 16.5, 47.5, 57.5 and 80.0 thousand. Both series are read to the nearest $500, which is the resolution the printed chart supports and is consistent with the word “estimate” in the question.

Question 2: Litigation — delay claims, contractual prevention, settlement routes and delay analysis (20 marks)

Question text not reproduced: the examination questions are © Engineers and Geoscientists BC. Open the official past paper (linked at the top of this page) to read the question, then follow the worked solution below.

A delay claim is a request for additional time, additional money, or both, made because the work took longer than the contract contemplated and the party making the claim says the other party caused it. Almost every one of them traces back to the same short list of causes, and recognising which cause is in play determines both the entitlement and the analysis that has to be run to prove it.

Main reasons for delay claims. The largest single category is owner-caused delay: late or defective design information, drawings issued in packages that do not match the construction sequence, slow response to requests for information and shop-drawing submittals, late delivery of owner-supplied equipment, and late or partial access to the site because a right-of-way, a permit or a utility relocation is not in place. Closely related is change and scope growth — a change order adds work but the contract time is not extended proportionately, or a stream of small changes disrupts a sequence out of all proportion to their individual value. A third category is differing site conditions: rock where boreholes indicated till, contaminated soil, unrecorded utilities, archaeological finds. A fourth is external events that are nobody's fault — abnormal weather, strikes, permit-authority delay, force majeure — which typically earn time but not money. A fifth is contractor-caused delay: under-resourcing, poor productivity, late procurement, defective work requiring rework, or subtrade failure. Finally there is acceleration, where an owner refuses a justified extension and directs the contractor to meet the original date; the resulting overtime, additional shifts and crowding costs are claimed as constructive acceleration.

Two structural features of construction turn these causes into disputes rather than adjustments. The first is concurrency: an owner delay and a contractor delay frequently overlap, and the entitlement of each party then depends on which delay was on the critical path and for how long. The second is disruption, the loss of productivity caused by out-of-sequence work, trade stacking and constant re-planning. Disruption costs often exceed the direct cost of the delay itself and are much harder to prove, which is why they end up in litigation.

Contractual modifications that reduce claims. The most effective changes are those that force the parties to deal with a delay while it is still happening rather than at the end of the job. A prompt-notice regime with a short, clearly stated period — CCDC 2 requires notice in writing within ten working days of the event giving rise to the claim — converts a two-year-old dispute into a contemporaneous one that can still be investigated. A contractual baseline schedule, submitted and accepted early, updated monthly and accompanied by a narrative of variances, gives both parties an agreed reference against which any later analysis can be run; without it, delay analysis degenerates into a contest between two reconstructed schedules. Explicit risk allocation clauses matter: a differing-site-conditions clause that entitles the contractor to relief removes the incentive to price contingency into every bid and to litigate when the contingency proves inadequate; conversely a properly drafted weather clause that defines “abnormal” against published Environment and Climate Change Canada normals removes a whole category of argument. A float-ownership clause stating that float belongs to the project rather than to either party, and a concurrent-delay clause stating how time and money will be apportioned when delays overlap, decide in advance the two questions that most often go to court. Time-bar and prescribed-form claim procedures, liquidated damages set as a genuine pre-estimate of loss rather than a penalty, prompt-payment and adjudication legislation (now in force in Ontario and several other provinces), and a staged dispute-resolution ladder written into the contract all reduce the number of claims that mature into litigation.

Approaches to settling a claim. These form a ladder of increasing cost, formality and loss of control. Negotiation between the project participants settles the great majority and is the only route that preserves the working relationship intact. Escalation to senior management or to a standing dispute review board — a panel of three neutrals appointed at the start of the job, briefed continuously and empowered to issue non-binding recommendations — catches disputes early and is well suited to large infrastructure work. Mediation introduces a neutral facilitator who has no power to decide; it is fast, confidential and, under CCDC 40, a required step before arbitration. Statutory adjudication, where it applies, gives an interim binding decision within roughly a month, preserving cash flow while the merits are argued later. Arbitration yields a binding award from a decision-maker the parties choose for technical competence, with limited rights of appeal and confidential proceedings. Litigation is the last resort: public, slow and expensive, but the only route that offers full discovery, precedential authority and the coercive powers of a court. A rational claims strategy uses the lowest rung that will actually resolve the matter, because the transaction cost of the higher rungs frequently exceeds the amount in dispute.

Types of delay analysis. Validating a delay claim means demonstrating causation on the critical path, and the recognised methods — classified in AACE International Recommended Practice 29R-03 and in the Society of Construction Law Delay and Disruption Protocol — differ in what they compare and in what data they require. The as-planned versus as-built comparison sets the baseline schedule beside the record of what actually happened and identifies the differences; it is simple and intuitive but does not by itself prove causation. Impacted as-planned inserts the delay events into the baseline and re-runs the network to show the theoretical effect; it is easy but ignores everything else that changed. Collapsed as-built (“but-for”) starts from the as-built schedule and removes the delays attributed to one party to show what the duration would have been without them; it requires a reliable as-built logic network. Time impact analysis is the method most often specified and the one the courts prefer: the schedule update immediately before each delay event is taken, a fragnet representing the event is inserted, and the network is re-run to measure that event's incremental effect on the completion date. Because it is prospective and event-by-event, it deals properly with a moving critical path. Windows analysis divides the project into periods, usually monthly, and measures the critical-path movement in each window against the delays occurring in it, which is the most reliable way to handle concurrency because it identifies which delay controlled in each period. The choice among them is driven by the quality of the schedule records: a project with a contemporaneous, updated, logic-driven baseline supports a windows or time-impact analysis, and a project without one is left with the weaker retrospective methods and a correspondingly weaker claim.