• What contractors, owners and construction professionals must know about cumulative impact productivity claims
  
• How owners and contractors can avoid potential cumulative impact claims
  
• The essential proofs necessary to support a cumulative impact claim
  
• Problems of causation and proof
  
• Owner defenses against cumulative impact claims
  

Post-project lessons learned analyses and retrospective studies take on even greater significance in the identification of potential cumulative impact claims. But a post-project analysis may be too late for contractors and owners unless they have taken some affirmative steps during the project itself.

For example, if the contractor hasn't reserved the right to review individual changes and adjustments, the contractor may have given up the right to a separate productivity impact claim. Conversely, if the owner hasn't resolved each change order to the satisfaction of the parties involved, the owner or owner's representative may have an exposure to a cumulative impact claim.

A cumulative impact claim can result from a series of contract changes or contract modifications that have a combined disruptive impact on the overall flow of a project. Multiple changes may disrupt work to a greater extent that one or a combination of all individual changes. A cumulative impact claim is a separate and distinct claim that is different from but related to individual claims that occur. It is the synergistic effect of the changes that is the basis of the cumulative impact claim.

As in any claim, it is not simply a matter of developing a list of changes and work disruptions. The contractor must show how the changes caused the greater impact and disruption. Problems of proof and quantification are formidable ones.

This course is designed to educate and guide those involved in schedule, performance, and efficiency-related cumulative impact claims. It is a concise analysis of the entire process. The course has been distilled into one highly concentrated day of work. The balance of the brochure spells it all out; an exceptional faculty, special case situations, the detailed course curriculum and the course reference manual.

1. CUMULATIVE IMPACT CLAIMS
   1. Cumulative Impact Defined
   2. Multiple Effects Causing Work Disruption
   3. Direct vs. Cumulative Claims
   4. Scope of Work Changes
   5. Constructive Changes
   6. Cardinal Changes
   7. Changes Clauses
   8. Cumulative Impact as a Compensable Claim
   9. Owner vs. Contractor Inefficiencies

2. IDENTIFYING AND DEVELOPING CUMULATIVE IMPACT CLAIMS
   1. Any Workplace Disruption
   2. Multiple Change Orders
   3. Scope of Work Changes
   4. Design Orders
   5. RFI's (Requests for Information)
   6. Synergistic Effect of Changes
   7. Acceleration
   8. Suspension of Work
   9. Abandonment
   10. Other Indicators

3. CAUSES OF LOSS OF EFFICIENCY
   1. Out of Sequence Work
   2. Unbalanced Crews
   3. Crowding and Stacking of Trades
   4. Reassignment of Personnel
   5. Unavailability of Personnel/Skills
   6. Overtime
   7. Change Multipliers
   8. Differing Site Conditions
   9. Weather
   10. Loss of Momentum
   11. Unbalancing Successive Operations
   12. Restricted Access
   13. Other Causes

4. PREPARING THE CLAIM
   1. Identify All Working Conditions
   2. Explain How the Changes Impacted the Work
   3. Quantify the Impact of the Changes

5. CALCULATING DAMAGES
   1. Costs
      1. Direct consequence costs
      2. Indirect or cumulative costs
   2. Total Cost Method
   3. Modified Total Cost Method
   4. Measured Mile Approach
   5. Jury Verdict Method
   6. Cause and Effect Analysis
      1. Comparisons with other work
      2. Industry studies
      3. Critical Path networks

6. LEGAL ISSUES: CLAIMS AND DEFENSES
   1. Release Language in Change Orders
   2. Equitable Adjustments
   3. General Releases
   4. Express Releases
   5. Reservation of Rights
   6. Extinguished Rights
   7. Owner vs Contractor Responsibilities
   8. Nature of the Bargain
   9. Failure to Maintain a Schedule
   10. Foreseeability as a limiting factor
   11. Breach of Implied Duty of Good Faith and Fair Dealing
   12. Causation and Quantum of Proof Issues
   13. Which Event Triggers the Claims?
   14. Expert Witnesses
   15. Expert Testimony

7. NEW DEVELOPMENTS IN CUMULATIVE IMPACT CLAIMS
   1. On the Job
   2. In the Boards and Courts

8. WORKSHOP AND CASE STUDIES

Tom Driscoll of URS Construction Services, Denver, Colorado. More than 35 years of experience as an international consultant in project and construction management practice. Author and lecturer on construction management and claims. Fellow and past President of the Construction Management Association of America. Member of the Institute of Management Consultants, the American Society of Civil Engineers, and the Project Management Institute.

Reginald M. Jones is an attorney in private practice in Atlanta with the distinguished law firm of Smith, Currie, and Hancock LLP which concentrates its practice in construction law, government contract law and employment law. He counsels and represents clients in contract matters that involve both the private and public sectors at the federal, state, and local levels. He is the author of the comprehensive article titled: Lost Productivity: Claims for the Cumulative Impact of Multiple Change Orders, published in the American Bar Association's Public Contract Law Journal.

Jim Butler is a partner with the Atlanta law firm of Smith, Currie & Hancock LLP, in the firm's Construction and Environmental Litigation Department. His practice is concentrated in the negotiation, arbitration and litigation of government contracts, hazardous waste issues and construction contracts including cumulative impact claims. He has experience with a variety of sites and projects including seminconductor facilities, power plants, water and wastewater systems, airports, office buildings, schools, casinos, condominiums, prisons, highways, manufacturing and industrial plants, hospitals, asbestos abatement projects, superfund sites and government facilities.