How to Avoid and Resolve Disputes over Delays and Disruptions - 8

do so actually prejudiced the owner's position, and in that
case, the owner should be relieved of its duty to provide
an equitable adjustment in time and/or contract price to
only the extent of such prejudice.
B. TRACKING AND/OR ESTIMATING
ADDITIONAL COSTS AND QUANTITIES
Contractors can also seek provisions that outline and clarify
their obligation to track additional costs and quantities
relating to any delay and/or disruption, and explain what
the parties will do if discrete tracking is infeasible.
1. Such provisions can reasonably require a contractor to
segregate and discretely track any additional costs and/
or quantities that a delay or disruption has the effect of
increasing, provided that clients also account for the time
and effort necessary to segregate and separately track those
costs, and whether it is feasible to do so. The exact same
cost codes typically cover work that is impacted and work
that is not, without distinguishing between the two, and
that reality can often make it difficult, if not impossible,
to segregate the hours or costs associated with each one.
Clients need to recognize and acknowledge that discrete
tracking may not be feasible, and should avoid requiring
such tracking if and when it is not feasible to implement.
2. Understanding that it may not be feasible for the contractor
to segregate and discretely track the additional costs that a
project delay is causing the contractor to incur, the parties
can also identify, limit and prioritize the methodologies
that they will use, after the fact, to calculate the duration
of a delay or disruption and/or the resulting costs. While it
is preferable for the parties to agree on a single methodology, the facts and circumstances surrounding a particular
problem may preclude them from taking any one approach.
Both limiting and prioritizing the options is, however, helpful. The parties can reasonably agree, for example, to the
following options and priorities for assessing the impact
that an event has had on the project schedule:
* Time Impact Analysis
* Collapsed As-Built Analysis
3. Understanding that it may not be feasible for the contractor
to segregate and discretely track the additional costs that
a disruption is causing the contractor to incur, the parties
can also identify, limit and prioritize the methodologies
that they will use, after the fact, to calculate those costs.
While it is preferable for the parties to agree on a single
methodology, the facts and circumstances surrounding a
particular problem may preclude them from taking any
one approach. Both limiting and prioritizing the options
is, however, helpful. The parties can reasonably agree,
for example, to the following options and priorities:
* Measured Mile Study
* Earned Value Analysis
* Industry Productivity Studies (such as MCAA factors)

C. SHARING THE COST OF UNCERTAINTY
Contractors can also seek provisions that fairly allocate and
require the parties to share the costs of the uncertainty that
can surround claims for delay and/or disruption for a significant
period of time. Such claims can be complex, and the parties can
require time to sort out the details, and they would do well to
account for that possibility.
1. If the client has neither granted nor denied an appropriately
prepared claim for delay and/or disruption within thirty (30)
calendar days of the client's receipt of that claim, such provisions can reasonably entitle the contractor to the prompt
but contingent payment of fifty percent (50%) of the claim.
In this context, a payment would be prompt if made within
thirty-seven (37) calendar days of the client's receipt of the
contractor's request. The payment would be contingent in
the sense that the contractor could be required to return
it, with interest, depending on how the parties ultimately
resolved the claim. Given the particular circumstances, the
parties may also want to consider whether the contractor
should provide any security to the owner.
2. Such provisions would reasonably require the contractor to return any partial payment that it has received in
accordance with the preceding provision, plus interest at
a monthly rate that the parties should specify, if either of
the following occurred:
* The client ultimately denied the claim and the contractor
did not further pursue it (under and in accordance with
any contractual provisions relating to the resolution of
disputes); or
* The individual or body assigned the responsibility for
resolving the dispute (whether an arbitrator, board or
court) determined that the claim did not have merit.
3. In addition, if that individual or body determined that the
contractor had made its claim for delay and/or disruption
in bad faith, such provisions could reasonably require the
contractor to reimburse the client for its cost (including
reasonable attorneys' fees) of defending its denial of that
claim.
D. THE RESERVATION OF CERTAIN RIGHTS
Contractors also find it useful if not necessary to seek contractual provisions expressly reserving their right to equitable
adjustments for any delay or disruption that the client causes,
particularly where the impact is a cumulative one resulting,
for example, from multiple change orders.
1. It is reasonable for such provisions to specify that the contractor cannot be required to waive or release its right to
pursue a cumulative impact claim merely to resolve a claim
relating to one or a few discrete events.
2. It is equally reasonable for such provisions to specify that
any routine and/or partial waiver or release on which the



Table of Contents for the Digital Edition of How to Avoid and Resolve Disputes over Delays and Disruptions

How to Avoid and Resolve Disputes over Delays and Disruptions - Intro
How to Avoid and Resolve Disputes over Delays and Disruptions - 1
How to Avoid and Resolve Disputes over Delays and Disruptions - 2
How to Avoid and Resolve Disputes over Delays and Disruptions - 3
How to Avoid and Resolve Disputes over Delays and Disruptions - 4
How to Avoid and Resolve Disputes over Delays and Disruptions - 5
How to Avoid and Resolve Disputes over Delays and Disruptions - 6
How to Avoid and Resolve Disputes over Delays and Disruptions - 7
How to Avoid and Resolve Disputes over Delays and Disruptions - 8
How to Avoid and Resolve Disputes over Delays and Disruptions - 9
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