108.02.B. Progress Schedule Schedule Costs –2002 C&MS … the cost of preparing and updating the schedule is incidental to all contract items. –2005 C&MS.

108.02.B. Progress Schedule

• Schedule Costs– 2002 C&MS

• “… the cost of preparing and updating the schedule is incidental to all contract items.”

– 2005 C&MS• “Unless otherwise included as a pay item in the Contract

Documents, the cost of preparing and updating the schedule is incidental to all contract items.”

108.02.B. Progress Schedule

• Early Completion Schedule– 2002 C&MS

• Escrow Documents when accepted progress schedule shows an early completion of Work more than 10 Calendar Days before the Completion Date.

– 2005 C&MS• Added B.2. Early Completion Schedule

– “An Early Completion Schedule is defined as a baseline schedule which anticipates completion of all work prior to the Completion Date established by the contract documents and the Contractor submits as an Early Completion Schedule.”

108.02.B. Progress Schedule

• 2005 C&MS• The Engineer will initiate a change order amending the

Completion Date to the finish date shown on the accepted Early Completion Schedule.

• All contract provisions concerning the Completion Date such as incentives, disincentives, excusable delays, compensable delays, and liquidated damages will be measured against the amended Completion Date.

• In the event that the Contractor elects not to execute the change order amending the Completion Date; the Contractor waives its rights to delay damages in meeting the projected early Completion Date.

108.02.C. Escrow Documents

• 2002 C&MS– Escrow Documents are required under the following circumstances:

1. early completion schedule shows completion of Work more than 10 Calendar Days before the Completion Date

2. when required by the Contract Documents

• 2005 C&MS– No longer linked to Early Completion Schedules– Eliminated Escrow Documents provision from C&MS– New Escrow Bid Documents Proposal Note 110

• Will only be considered for use on projects >$30 million or of a highly technical nature

108.06 Time Extension and Payment for Excusable Delays

• 2002 C&MS 108.06.A. General– 2nd paragraph states that the Department will consider

paying the Contractor for excusable, compensable delays from a projected finish date earlier than the Completion Date

• 2005 C&MS 108.06.A. General– Deleted 2nd paragraph due to new Early Completion

Schedule provision

108.06 Time Extension and Payment for Excusable Delays

• 2002 C&MS 108.06.A. General – No mention of shared duty to mitigate damages

• 2005 C&MS 108.06.A. General– Added explanation of “Duty to Mitigate”

“Mitigation of any delay, whether caused by the Department, Contractor, third party or an intervening event, is a shared contract and legal requirement. Mitigation efforts include, but are not limited to, re-sequencing work activities, acceleration, and continuation of work through an otherwise planned shutdown period. The Contractor and Engineer must explore and discuss potential mitigation efforts in a timely manner and must agree upon costs or cost sharing responsibilities prior to their implementation.”

109.05 Extra and Force Account Work

• 2002 C&MS 109.05.D.3.a. Field Overhead– Distinguished as 109.05.D.3 “Additional Allowable Delay

Costs Due to Engineer-Ordered Suspensions” from 109.05.D.2 “Allowable Delay Costs.”

• 2005 C&MS 109.05.D.2.e. Field Overhead– Limits payment for field overhead to utility/railroad

delays, engineer-ordered suspensions, and Department neglect….NOT delays due to revised work.

– Added to the list of delay costs set forth in 109.05.D.2 “Allowable Delay Costs.”

109.05 Extra and Force Account Work

• 2002 C&MS 109.05.D.3.a. Field Overhead– “The Department will pay the Contractor for field overhead costs

during a delay period if the Contractor has incurred an excusable, compensable delay that delays the Work at least 10 calendar days beyond the original Completion Date; these days are cumulative throughout the project.”

• 2005 C&MS 109.05.D.2.e. Field Overhead“…provided all of the following criteria are met:

(1) The Contractor or subcontractor has incurred an excusable, compensable delay that delays the Work at least 10 Calendar Days beyond the original Completion Date. These days are cumulative throughout the project.(2) The delay for which payment of field overhead is sought is only due to delays defined in 108.06.D.2, 108.06.D.3, and 108.06.D.5.

109.05 Extra and Force Account Work

• 2002 C&MS 109.05.D.3.a. Field Overhead– No reference to subcontractor entitlement.

• 2005 C&MS 109.05.D.2.e. Field Overhead– “The Department will pay any Contractor or

subcontractor for field overhead costs …”

109.05 Extra and Force Account Work

• 2002 C&MS 109.05.D.3.b. Home Office Overhead– Limits payment for home office overhead to engineer-

ordered suspensions….NOT delays due to utility/railroad delays, Department neglect, or revised work.

• 2005 C&MS 109.05.D.2.f. Home Office Overhead– Sets forth same two criteria for payment as Field Office

Overhead– Added to the list of delay costs set forth in 109.05.D.2

“Allowable Delay Costs.”

109.05 Extra and Force Account Work

• 2002 C&MS 109.05.D.3.b. Home Office Overhead– “A significant subcontractor may submit a claim for

reimbursement…”

• 2005 C&MS 109.05.D.2.f. Home Office Overhead– Clearly designates which subcontractors may submit a

claim for home office overhead• “Any subcontractor that has approved C-92’s for subcontracted

work totaling $4,000,000.00 or more is eligible for reimbursement provided…”

109.05 Extra and Force Account Work

• 2002 C&MS 109.05.D.3.b. Home Office Overhead– Addresses “normal winter shutdown periods”– No provisions addressing UNANTICIPATED winter

shutdown periods or construction periods

HOOP = (exc./comp. delay x orig. contract $ x 5.5%)

contract duration

* Normal winter shutdown periods are subtracted out of duration terms

109.05 Extra and Force Account Work

• 2005 C&MS 109.05.D.2.f. Home Office Overhead– Sets forth new calculation which clearly addresses

UNANTICIPATED winter shutdown periods and construction periods

109.05 Extra and Force Account Work

• 2005 C&MS 109.05.D.2.f. Home Office Overhead– “Payment will be made for every eligible day beyond the

original contract completion date at the…” Home Office Overhead Daily Rate.

Step 1: Determine HOOH Daily Rate

Daily HOOP = (orig. contract $ x .08)

contract duration

* Normal winter shutdown periods are NOT subtracted out of duration term

109.05 Extra and Force Account Work

• 2005 C&MS 109.05.D.2.f. Home Office Overhead– Payment for unanticipated construction

period is distinguished from payment for unanticipated winter period• Unanticipated construction period refers to the period

between May 1 and November 30• Unanticipated winter period refers to the period

between December 1 and April 30

109.05 Extra and Force Account Work

• 2005 C&MS 109.05.D.2.f. Home Office Overhead

Step 2: Determine HOOH Payment for Unanticipated Construction Period

CP HOOP = Daily HOOP x D

D = all excusable, compensable delays minus all delays due to 108.06.D.1 revised work and 108.06.D.4 government acts other than Department (Calendar Days)

109.05 Extra and Force Account Work

• 2005 C&MS 109.05.D.2.f. Home Office Overhead

Step 3: Determine HOOH Payment for Unanticipated Winter Period

WP HOOP = Daily HOOP x F x (D/E)

D = all excusable, compensable delays minus all delays due to 108.06.D.1 revised work and 108.06.D.4 government acts other than Department (Calendar Days)E = all excusable, compensable delays plus all excusable, non-compensable delays (Calendar Days)F = 151

109.05 Extra and Force Account Work

• 2005 C&MS 109.05.D.2.f. Home Office Overhead

Step 4: Determine Total HOOH Payment

Total HOOP = CP HOOP + WP HOOP

109.05HOOP Hypo

Facts:Execution of Contract: 6/13/04

Original Completion Date: 9/30/05

Original Contract Amount: $12,000,000

109.05HOOP Hypo

Delays to Critical Path (Calendar Days):Weather – 50 (excusable, non-compensable)Utility – 91 (excusable, compensable)

* BUT, 16 of the weather days were concurrent with the utility delay.

So, only 75 of the utility delay days are compensableExtra Work – 39 days (excusable, compensable)

__________________________________________________________Total Time Extensions: 50 +91 +39 – 16 = 164 Cal. DaysThe delays extend the project over the winter, so... 164 Cal. Days (time ext.) + 151 (winter shutdown) = 315 Cal. Days9/30/05 (Orig. Compl. Date) + 315 Cal. Days = 8/11/06

Revised Completion Date: 8/11/06

109.05HOOP Hypo

Delays to Critical Path (calendar days):Weather – 50 (excusable, non-compensable)

Utility – 91 (excusable, compensable)

* BUT, 16 of the weather days were concurrent with the utility delay.

So, only 75 of the utility delay days are compensable

Extra Work – 39 days (excusable, compensable)

___________________________________________________________________

Excusable, compensable = 75 + 39 = 114 Cal. Days

Excusable, non-compensable = 50 Cal. Days

109.05 HOOP Hypo

Step 1: Determine HOOH Daily Rate

Daily HOOP = (orig. contract $ x .08)

contract duration

* Normal winter shutdown periods are NOT subtracted out of duration term

Daily HOOP = ($12,000,000.00 x .08)

474 Cal. Days

= $2025.32

109.05 HOOP Hypo

Step 2: Determine HOOH Payment for Unanticipated Construction Period

CP HOOP = Daily HOOP x D

Daily HOOP = $2025.32 (from previous page)D = all excusable, compensable delays minus all delays due to 108.06.D.1 revised work and 108.06.D.4 government acts other than Department (Calendar Days)

D =114 – 39(EW) = 75

CP HOOP = $2025.32 x 75 Cal. Days = $151,899

109.05 HOOP Hypo

Step 3: Determine HOOH Payment for Unanticipated Winter Period

WP HOOP = Daily HOOP x F x (D/E)

Daily HOOP = $2025.32 (from previous page)D = 75 Cal. Days (from previous page)E = all excusable, compensable delays plus all excusable, non-compensable delays (Calendar Days)F = 151 or 152 in leap year

E = 114 + 50(weather) = 164

WP HOOP = $2025.32 x 151 x (75 Cal. Days/164 Cal. Days) = $139,858.23

109.05 HOOP Hypo

Step 4: Determine Total HOOH Payment

Total HOOP = CP HOOP + WP HOOP

Total HOOP = $151,899 + $139,858.23

= $291,757.23

Thank You