2020 is now behind us, and we have reason for a positive outlook for 2021. However, delays and impacts due to COVID-19 and other factors in 2020 will likely continue into 2021, and claims and disputes over relief will likely increase in 2021. A persuasive claim analysis and presentation and demonstration that if the parties cannot negotiate or mediate a reasonable resolution, and the claim must be arbitrated or litigated, you have a high likelihood of success may help maximize your ability to present and recover on your claim for relief. On the other hand, you may need to be able to successfully defend against such a claim.

The American Society of Civil Engineers has issued its draft Standard for Identifying, Quantifying, and Proving Loss of Productivity for second public comment in anticipation of publication in 2021. This standard was developed by a consensus standards development process, which has been accredited by the American National Standards Institute (ANSI). Accreditation by ANSI, a voluntary accreditation body representing public and private sector standards development organizations in the United States and abroad, signifies that the standards development process used by ASCE has met the ANSI requirements for openness, balance, consensus, and due process. The provisions of the standard are written in permissive language and, as such, offer the consultant/expert a series of options or instructions, but do not prescribe a specific course of action. Significant judgment is left to the consultant/expert. The authors note “The appropriate applications of these Principles are dependent upon and should be tailored to the available project management resources, date, and circumstances of a specific project.” Thus, the standard does not promote a one size fits all approach. Rather, larger and more sophisticated projects may require more sophisticated processes and techniques, whereas smaller, shorter duration projects may be better suited for simpler processes that may be less precise, but more cost efficient for the amounts in dispute.

The standard includes best practice guidance on collecting and storing productivity data and tips for identifying, reporting and mitigating productivity loss. With respect to damage calculation methods, the standard addresses the common methods of measured mile, modified total cost and total cost. Interestingly, the draft for second public comment proposes a strikethrough of the traditional preferred damage quantification method of actual discrete costs, so we’ll have to wait and see how that is addressed in the final publication. Regardless, many courts and arbitrators continue to recognize that damages based upon actual discrete costs tend to be the most persuasive. The standard also includes in an appendix a hypothetical project with examples of application of different loss of productivity quantification methods to an impacted project. Also included is a bibliography of relevant publications on measured mile; total costs and modified total cost; changes, rework, change orders and cumulative impact; specialized studies related to weather and seasonal factors; learning curve, overtime, project characteristics and management factors; congestion, trade stacking, crew size and delayed delivery; acceleration, delay and disruption; and shift work, poor management and estimating guides. The bibliography alone is a useful research tool for performing due diligence and analyzing the testimony of your consultant/expert or the opposing consultant/expert.

Based on the foregoing, this standard may provide a useful tool for you and your consultant/expert in analyzing and presenting a persuasive claim for recovery of relief for delay and impacts due to COVID-19 and other factors. Conversely, if you are in the position of having to defend against such a claim, this standard may similarly benefit you and your consultant/expert in analyzing and defending a claim that has not been prepared using appropriate practices.