survey of state practices on construction delay · unusually severe weather 7 4. unavoidable...
TRANSCRIPT
Survey of State Practices on Construction Delay
AASHTO Subcommittee on ConstructionContract Administration Section
Page 1
Date: April 6, 2009
Submitted by:Jennifer Balis, P.E. FHWA
andCal J. Gendreau, P.E. NDDOT
Construction Delay Survey Results
1. Owner-caused suspension or delay 3
2. Unavoidable utility delay 5
3. Unusually severe weather 7
4. Unavoidable area-wide material shortages 9
5. Labor strikes that occur after bid opening 11
6. Unforeseeable and unavoidable causes 13
7. Third party delay 15
8. Differing site conditions 17
9. Damage to the permanent work caused by public traffic 19
Survey Data
1. Survey Respondents 21
2. State Specifications on Delay 22
3. Survey Data Detail 24
Page 2
Table of Contents
Survey of State Practices on Construction Delay
1. Owner-caused suspension or delay for any unreasonable period of time
Would this cause be considered an excusable delay? (Additional time would be granted)
28 (97%)
1 (3%)
Agency Comments:
• California: Excusable if the delay was owner caused. Not excusable if contractor caused. Excusable with no time extension if the cause was beyond the control of both parties.
• New Jersey: These responses are based on our 2007 Standard Specifications.
• Oregon: Assuming the delay was actually on the critical path
• Texas: Typically time charges will be suspended.
• Vermont: Section 108.11 of our Specifications address EOT
Yes
No
Page 3
1. Owner-caused suspension or delay for any unreasonable period of time
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
26 (93%)
2 (7%)
Agency Comments:
• Georgia: Compensable items are outlined in the specifications.
• Iowa: Specifications provide for a process to file a claim.
• Michigan: Standard Specification 109.03
• Montana: Section 108.7 of the Standard Specifications
• Oklahoma: Only when completion of the delayed work prevents the start of successive work that adversely impacts the project completion (affects items on the critical path)
• Oregon: Assuming the delay was actually on the critical path
• Texas: Only if delay damages are incurred. If the contractor hasn't mobilized yet, damages won't be paid for.
Yes
Specs are Silent
Page 4
2. Unavoidable utility delay
Would this cause be considered an excusable delay? (Additional time would be granted)
28 (97%)
1 (3%)
Agency Comments:
• California: Excusable only if beyond the control or actions of the contractor. For instance, it would not be excusable if the contractor damaged the utility and this was the source of the delay.
• Illinois: Depends on the length of delay.
• Iowa: This would depend on what utility information is included in the plans.
• Louisiana: If the Department was responsible for relocating the utilities before construction.
• Montana: Section 108.7 of the Standard Specifications
• New Jersey: The answer is more complicated than yes/no. NJDOT special provisions provide utility company time frames. If the utility co. is < 30% longer than the durations noted - the delay is non-excusable (no time extension). If durations are > 30% longer, time is granted for the amount >30% - If it is shown to dive project's the critical path.
• Ohio: Our state treats utility delays as "excusable" delays
• Oklahoma: Our specifications do not specifically address utility delays, however we would categorize delays by utilities, railroads, etc. as being a department caused delay by no fault of the contractor.
• Oregon: Assuming it was not identified in the contract documents and on the critical path
• Texas: Time may be suspended or extended, or a combination of both.
• Vermont: This is a really gray area; the specs say contractors receive no extra comp for working around utilities and so on, but we have compensated contractors for extreme situations.
Yes
No
Page 5
2. Unavoidable utility delay
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
16 (57%)
9 (32%)
3 (11%)
Agency Comments:
• Georgia: Generally no. We will extend fuel and asphalt indexing for a utility delay.
• Illinois: For delays of unreasonable duration only.
• Iowa: This may be compensable if the contract documents included a schedule for utility adjustments that was not met.
• Louisiana: Same as above.
• Michigan: Standard Spec 109.03
• Mississippi: Unless the delay caused all work on the project to be stopped.
• Montana: Section 108.7 of the Standard Specifications
• Ohio: Our state treats utility delays as "compensable" delays. In reality, the owner should have made sure the utilities were clear prior to bidding the project.
• Oklahoma: Our specifications do not specifically address utility delays, however we would categorize delays by utilities, railroads, etc. as being a department caused delay by no fault of the contractor.
• Oregon: Assuming it was not identified in contract documents and on critical path.
• Texas: Only if delay damages are incurred and if the project completion date is extended due directly to this delay.
• Vermont: The Specs are silent but we have paid claims on these matters.
Yes
No
Specs are Silent
Page 6
3. Unusually severe weather
Would this cause be considered an excusable delay? (Additional time would be granted)
26 (90%)
3 (10%)
Agency Comments:
• California: Depends on the type of contract time. Working day contracts, yes. Calendar day or completion date contracts, No.
• Connecticut: Possibly - depending on the nature and severity.
• Illinois: Not normally, but would consider for cataclysmic events.
• Louisiana: Above the adverse weather days listed in the contract per month over the life of the contract.
• Montana: Section 108.7 of the Standard Specifications
• New Jersey: NJDOT defines an anticipated amount of weather delay (giving # days lost/month). If weather delays critical path activities more than this -it is considered extreme weather and the # days > than the # shown in the spec is eligible for time extension.
• New York: If emergency is declared.
• North Carolina: The Specifications require that weather impacts have to be greater than 40% of the contract time before additional time will be granted.
• Oregon: Would need to meet our definition of unusual weather
• Texas: In most contracts time will not be charged; however in some high profile contracts, time charges continue.
Yes
No
Page 7
3. Unusually severe weather
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
20 (76%)
3 (12%)3 (12%)
Agency Comments:
• Maine: Only if FEMA funds available
• Montana: Section 108.7 of the Standard Specifications
• New Jersey: Defined as non-compensable
• Texas: Bad weather is excusable but not compensable.
Yes
No
Specs are Silent
Page 8
4. Unavoidable area-wide material shortages that occur after bid opening
Would this cause be considered an excusable delay? (Additional time would be granted)
23 (82%)
1 (4%)
4 (14%)
Agency Comments:
• California: The contractor would have to prove the material is not available.
• Iowa: Yes, if national shortage and properly documented.
• Kansas: Our specifications are silent, but we generally would grant more time.
• Michigan: Yes but, we rely on "industry wide" shortage, which is not clearly defined and is very difficult to establish. I cannot think of one instance where we have granted an extension for "industry wide" shortage in the 20 years I've been involved in construction. Standard Spec. 108.09.C
• Mississippi: Additional time would only be considered if the contractor could provide proper documentation from suppliers concerning the shortage.
• Montana: Section 108.7 of the Standard Specifications
• Oregon: Contract says no, but we have allowed time on rare occasion
• Texas: In most contracts time will not be charged; however in some high profile contracts, time charges continue.
Yes
NoSpecs are
Silent
Page 9
4. Unavoidable area-wide material shortages that occur after bid opening
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
16 (70%)
3 (13%)4 (17%)
Agency Comments:
• Montana: Section 108.7 of the Standard Specifications
• New Jersey: Defined as non-compensable
• Texas: Material shortages are excusable but not compensable.
• Vermont: The specs are clear that time is to be provided but silent on the compensation. A delay beyond the control of the contractor would be subject to a claim and potential settlement.
Yes
No
Specs are Silent
Page 10
5. Labor strikes that occur after bid opening
Would this cause be considered an excusable delay? (Additional time would be granted)
21 (75%)
4 (14%)
3 (11%)
Agency Comments:
• Montana: Section 108.7 of the Standard Specifications
Yes
No
Specs are Silent
Page 11
5. Labor strikes that occur after bid opening
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
15 (72%)
3 (14%)3 (14%)
Agency Comments:
• Montana: Section 108.7 of the Standard Specifications
• New Jersey: Defined as non-compensable
Yes
No
Specs are Silent
Page 12
6. Unforeseeable and unavoidable causes, such as fires, floods, or natural disasters
Would this cause be considered an excusable delay? (Additional time would be granted)
26 (93%)
2 (7%)
Agency Comments:
• Iowa: Only if declared a disaster.
• Montana: Section 108.7 of the Standard Specifications
• New Jersey: Cataclysmic natural phenomena - lightning; wild fires, floods, tidal waves, earthquakes, tornadoes, hurricanes
• North Carolina: Weather related delays would follow the same 40% rule.
• Texas: Time charges may be suspended or time may be added or both.
Yes
No
Page 13
6. Unforeseeable and unavoidable causes, such as fires, floods, or natural disasters
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
17 (66%)
5 (19%)4 (15%)
Agency Comments:
• Louisiana: However under Act of God Spec damage to the work would be covered.
• Montana: Section 108.7 of the Standard Specifications
• Nebraska: Actual cost for recovery would be paid. Delay cost would not be paid.
• Texas: Disasters are excusable but not compensable.Yes
No
Specs are Silent
Page 14
7. Third party delay without the fault or negligence of either the owner or contractor
Would this cause be considered an excusable delay? (Additional time would be granted)
17 (61%)
1 (3%)
10 (36%)
Agency Comments:
• Connecticut: If third party is a supplier - yes. In most cases - yes. If third party was somehow related to contractor, no.
• Louisiana: Depends on circumstances
• Maine: Utilities
• Michigan: It depends...Standard Spec 108.09
• Mississippi: Only if the third party is another governmental agency.
• Montana: Section 108.7 of the Standard Specifications
• New Hampshire: We don't recognize any one but the Prime Contractor.
• New Jersey: This does not include third parties that are the Contractor's responsibility - subcontractors, suppliers.
Yes
No
Specs are Silent
Page 15
7. Third party delay without the fault or negligence of either the owner or contractor
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
10 (59%)
3 (18%)4 (23%)
Agency Comments:
• Montana: Section 108.7 of the Standard Specifications
• New Jersey: Defined as non-compensable. NJDOT also limits risk for excusable, non-compensable delays to 180 days, after which delays would be excusable, compensable. This applies to all excusable, non-compensable delays.
• Oklahoma: Our specifications do not specifically address utility delays, however we would categorize delays by utilities, railroads, etc. as being a department caused delay by no fault of the contractor.
Yes
No
Specs are Silent
Page 16
8. Differing site conditions
Would this cause be considered an excusable delay? (Additional time would be granted)
27 (96%)
1 (4%)
Agency Comments:
• Montana: Section 104.02 of the Standard Specifications
• North Carolina: Specifications require the contractor to perform whatever investigations are necessary to satisfy himself of the conditions to be encountered.
• Oklahoma: Only if the work being delayed is critical to the timely completion of the project and the contractor has made every reasonable effort to minimize the adverse impact of the condition.
• Texas: Time may be suspended but a notice requirement by the contractor is required.
Yes
No
Page 17
8. Differing site conditions
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
24 (89%)
2 (7%)
1 (4%)
Agency Comments:
• Connecticut: In most cases – yes
• Louisiana: If proven to cause delay and beyond contractor's control
• Mississippi: Delay costs would not be but the additional costs to perform the work would be paid.
• Montana: Section 104.02 of the Standard Specifications
• Oklahoma: Only if the work being delayed is critical to the timely completion of the project and the contractor has made every reasonable effort to minimize the adverse impact of the condition.
• Texas: Only if delay damages are incurred and if the project completion date is extended due directly to this delay.
• Wyoming: If the contractor demonstrates to the department the additional costs are warranted. Contract Amendment is required. Yes
No
Specs are Silent
Page 18
9. Damage to the permanent work, prior to partial or final acceptance, caused by public traffic on a section of road required to be open to traffic during construction
Would this cause be considered an excusable delay? (Additional time would be granted)
14 (50%)8 (29%)
6 (21%)
Agency Comments:
• Kansas: The actual situation would be reviewed and if warranted, time extensions may be granted.
• Michigan: Possibly. Would need to be evaluated.
• Mississippi: Time would only be granted if all other work had been completed or if additional material delivery time was required.
• Oklahoma: Only if the work being delayed is critical to the timely completion of the project and the contractor has made every reasonable effort to minimize the adverse impact of the condition.
Yes
No
Specs are Silent
Page 19
9. Damage to the permanent work, prior to partial or final acceptance, caused by public traffic on a section of road required to be open to traffic during construction
If an excusable delay, would this cause be a compensable delay? (Delay costs would be paid)
7 (47%)5 (33%)
3 (20%)
Agency Comments:
• Nebraska: Actual cost for repair. Not delay cost.
• Oklahoma: Only if the work being delayed is critical to the timely completion of the project and the contractor has made every reasonable effort to minimize the adverse impact of the condition.
Yes
No
Specs are Silent
Page 20
Survey of State Practices on Construction DelaySurvey Respondents
Page 21
Name Agency Email Address
Chuck Correa Alaska DOT/PF [email protected]
Michael Kissel California Department of Transportation [email protected]
Dennis Largent Colorado DOT [email protected]
James P. Connery Connecticut DOT [email protected]
William G. Stewart Jr Delaware DOT North II Construction [email protected]
Randall Hart Georgia Department of Transportation [email protected]
Frances J. Hood, P.E. Idaho Transportation Department [email protected]
Mike Renner IDOT (Illinois) [email protected]
John Smythe Iowa DOT [email protected]
Susan Darling Kansas Department of Transportation [email protected]
Brian Buckel La DOTD [email protected]
Scott Bickford Maine DOT [email protected]
Brenda O'Brien Michigan Department of Transportation [email protected]
Brad Lewis Mississippi DOT [email protected]
Kevin Christenen Montana Department of Transportation [email protected]
Claude Oie Nebraska Department of Roads [email protected]
Theodore Kitsis NHDOT [email protected]
Sean Sheehy New Jersey DOT [email protected]
Joe Garcia NMDOT [email protected]
Jim Tynan NYSDOT [email protected]
Lamar Sylvester North Carolina Department of Transportation [email protected]
Eric Molbert NDDOT [email protected]
Clint M. Bishop, P.E. Ohio Department of Transportation [email protected]
George T. Raymond Oklahoma Department of Transportation [email protected]
Jeffrey L. Gower Oregon DOT [email protected]
Juan Francisco Urrutia TxDOT [email protected]
Stan Adams, P.E. Utah Dept. of Transportation [email protected]
David Hoyne Vermont Agency of Transportation [email protected]
Mark R Eisenhart Wyoming Department of Transportation [email protected]
Survey of State Practices on Construction DelayState Specifications on Delay
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Agency Standard Specification Number(s) for Construction Delay
Alaska Primarily 108-1.06
Colorado 108.07
Connecticut Standard Specifications Section 1.08.08 (Extension of Time) As a side note - Differing Site Condition,
Standard Specs. 1.04.04
Delaware 104.06 - Differing Site Conditions; 105.15 - Claims for Adjustments & Disputes; 105.21 - Claims for Delay
Damages.
Georgia 105.13
Idaho 104.04, 105.07, 108.06
Illinois 108
Iowa 1109.11, 1108.06, 1108.07, 1107.15
Kansas Division 100, Sections 104, 105 and 108 of Kansas DOT 2007 Standard Specifications.
Louisiana 104, 105, 107, 108 and Special Provisions for some projects
Maine 109.5
Michigan 103.02.C Differing Site Conditions 108.09 Extension of Time on Calendar Day or Calendar Date Contracts
109.03 Payment for Increased Contractor Costs
Mississippi 104.02.2 - Differing Site Conditions 108 - Prosecution and Progress
Montana Section 104.02, Section 108.7
Nebraska 107.15
New Hampshire 108.07
New Jersey 108.11
New Mexico Various
Survey of State Practices on Construction DelayState Specifications on Delay
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Agency Standard Specification Number(s) for Construction Delay
New York Section 100
North Carolina Article 108-10
North Dakota 104.05 Additional Compensation for Suspension or Delay of Work. 108.04 Determination and Extension of
Contract Time
Ohio 108.06
Oklahoma 108.07 - Administration and Extension of Contract Time 104.12 - Contractor's Responsibility for Work
Oregon Section 180
Texas Item 4.4 Requests and Claims for Additional Compensation
Utah Standard Specification 00570
Vermont Section 108.11 Prosecution and Progress- Determination for Extension of Contract Time for Completion. We
are looking to bolster the current spec.
Wyoming Subsection 108.6, 104.2 and 107.12
Survey of State Practices on Construction DelaySurvey Data Detail
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Survey Data Detail
State
1. Owner-caused 2. Utility delay3. Severe Weather
4. Material shortage
5. Labor strikes6. Unforeseeable
cause7. Third party 8. Differing Site
9. Damage to permanent work
Excu
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AL
AK Yes Yes Yes No Yes No Silent Yes No Yes No Yes No Yes Yes No
AZ
AR
CA Yes Yes Yes Yes Yes No Yes No Yes No Yes No Silent Yes Yes Yes Yes
CO Yes Yes Yes Yes No Yes No Yes No Yes No Silent Yes Yes Silent
CT Yes Yes Yes No Yes No Yes No Yes No Yes No Yes No Yes Yes Yes No
DE Yes Yes Yes No Yes No Yes No Yes No Yes No Yes No Yes Yes Yes Yes
FL
GA Yes Yes Yes No Yes No Yes No Silent Yes No Silent Yes Yes Yes Yes
HI
ID Yes Yes Yes Yes Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent Yes Yes Yes Yes
IL Yes Yes Yes Yes No Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes No
IN
IA Yes Yes Yes Yes Yes No Yes No No Yes No Silent Yes Yes Silent
KS Yes Yes Yes Yes Yes No Silent No Yes No Silent Yes Yes Silent
KY
LA Yes Yes Yes Yes Yes No Yes No Yes No Yes No Silent Yes Yes No
ME Yes Yes Yes No Yes Yes Silent Silent No Yes No Yes Yes No
MD
MA
MI Yes Yes Yes Yes Yes No Silent Yes No Yes No Silent Yes Yes Yes No
MN
MS Yes Yes Yes No No Yes No No Yes No Yes No Yes No No
MO
MT Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Silent
Survey of State Practices on Construction DelaySurvey Data Detail
Page 24
Survey Data Detail
State
1. Owner-caused 2. Utility delay3. Severe Weather
4. Material shortage
5. Labor strikes6. Unforeseeable
cause7. Third party 8. Differing Site
9. Damage to permanent work
Excu
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Co
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NE Yes Yes Yes No Yes No Yes No Yes No Yes Yes Yes No Yes Yes Yes Yes
NV
NH Yes Yes Yes No Yes No Yes No Yes No Yes No Silent Yes No Yes No
NJ Yes Yes No Yes No Yes No Yes No Yes No Yes No Yes Yes Yes No
NM Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Yes Silent Yes Yes Yes Silent
NY No Yes Yes Yes No Yes No Yes No Yes Yes Yes No Yes Yes Yes No
NC Yes Yes Yes Yes Yes No Yes No No No No No No
ND Yes Yes Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent
OH Yes Yes Yes Yes Yes No Yes No Yes No Yes No Yes No Yes Yes Silent
OK Yes Yes Yes Yes Yes No Yes No Yes No Yes No Yes Yes Yes Yes Yes Yes
OR Yes Yes Yes No Yes No No Yes No Yes No Silent Yes Yes No
PA
PR
RI
SC
SD
TN
TX Yes Yes Yes Yes Yes No
UT Yes Yes Yes Yes Yes No Yes No Yes No Yes No Yes No Yes Yes Yes Silent
VT Yes Silent Yes Silent Yes No Yes Silent Silent Yes Silent Silent Yes Yes No
VA
WA
WV
WI
WY Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent Yes Silent Yes Yes Silent Yes