Calculating Impact Costs, 27 C.L.R.

239

27 CONSTRLR-ART 239

Construction Law Reports (Articles)

1st series

1988

Calculating Impact Costs*

Stephen G. Revay, Revay and Associates Ltd., Montreal, **

© Thomson Reuters Canada Limited or its Licensors (excluding individual court documents). All rights reserved.

Introduction

At the 1985 Annual Conference of the Canadian Society for Civil Engineering, the author presented a paper about calculating
impact costs that was subsequently published in the Construction Law Reports.1 In writing that paper he says that he assumed,
apparently erroneously, that the notion of impact cost is generally accepted and that the difficulty owners and, at times, the
Courts or arbitrators have with impact costs originates in the imprecision of their quantification. He later came to realise that
the problem lies much deeper and probably goes back to the concept itself. As a result, he decided to make a second attempt at
clarifying the issue, but this time concentrating more on the concept and less on the intricacies of calculation. A certain amount
of duplication in the scope of the two papers was unavoidable; readers involved in quantifying or evaluating impact costs claims
may nevertheless find it beneficial to read the first paper as well.

Definition

Impact costs are the increased costs of one or several related construction activities, in excess of what those costs would have
been but for an incident, action or omission relating to a separate (discrete) item of work. Impact costs are often referred to as
the ripple effect, because they originate in one or more isolated problems and spread unabated through a project like ripples
across a pond.

Some authors refer to them as disruption costs, loss of productivity, or less often, loss of labour output. Some time ago,
particularly in the United States, impact costs were regarded as acceleration costs, whereas in most European countries they are
thought of as consequential losses caused by delays. This apparent confusion has probably created an unnecessary hurdle for
those trying to assert an impact cost claim. It is, of course, simpler to define what impact cost is not; it is not the direct cost of
making a change or otherwise altering work but rather the cost impact those changes may have had on the rest of the project.
"Direct", in this context, means "discrete", as opposed to directly related. Any of these definitions might be valid in describing
specific circumstances, but they are not necessarily all-inclusive, hence the term "impact cost".

Impact costs could result from a simple one-to-one relationship, such as the effect an increased quantity of embedded conduit
might have on the cost of formwork or an increased quantity of rock could have on over-burden excavation in a slurry trench.
Impact costs can also be one step removed, such as when increased quantities (e.g., concrete or masonry) compel a contractor to
accelerate (e.g., to employ additional resources or to work overtime). Impact costs need not originate in an affirmative action,
such as a change in design, or from an incident such as encountering changed soil conditions. They may also be the result of an
omission (e.g., delay in supplying the required drawings or prepurchased material/equipment). In the latter case the delay may
simply extend the duration of the project without other effects. It is possible, however, that the extension will carry the work

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into inclement weather, thus giving rise to weather-related productivity losses. Similarly, a given incident or delay can interrupt
the orderly sequence and momentum of a construction process, creating inefficiencies.

The cost impact at times may be limited to a single item, such as working in inclement weather; on the other hand, the causes
triggering impact costs may be numerous. As long as a contractor is entitled to additional compensation for the direct costs
of those causes pursuant to the governing term(s) of the contract (or to damages in law), he is probably entitled to be paid for
the consequent impact costs as well.

This was not always so. In the United States, for example, contractors were not entitled to claim impact costs until 1968: such
claims were prohibited by the Rice doctrine. The situation was changed by revising the language of the "changes and differing
site condition" clauses in standard contracts. Contracts used elsewhere, such as that of the British Institute of Civil Engineers
(and similarly, that of the Fédération Internationale des Ingénieurs-conseils — FIDIC), always had enabling provisions, such
as art. 13, specifically setting out the right of the contractor to impact costs as follows:
(3) If in pursuance of Clause 5 or sub-clause (1) of this Clause the Engineer shall issue instructions or directions which
involve the Contractor in delay or disrupt his arrangements or methods of construction so as to cause him to incur cost
beyond that reasonably to have been foreseen by an experienced contractor at the time of tender, then the Engineer shall
take such delay into account in determining any extension of time to which the Contractor is entitled under Clause 44
and the Contractor shall subject to Clause 52(4) be paid in accordance with Clause 60 the amount of such cost as may be
reasonable. If such instructions or directions require any variation to any part of the Works the same shall be deemed to
have been given pursuant to Clause 51. (emphasis added)

Under U.S. federal contracts today, the contractor is entitled to equitable adjustment, meaning that the compensation paid to the
contractor ought to be sufficient to keep him "whole". In other words, he ought to be compensated for the increase in his costs
in excess of what they would have been, if the impact had not occurred.

In Canada the standard federal contract calls for "all reasonably expended" costs to be compensated. In my view, all the
aforementioned contracts are governed by the same principle: the contractor is to receive an amount of money that would put him
as close as possible to the position he would have been in if he had been allowed to complete the contract without interruption.
That amount of money (which would make the contractor whole) must of necessity include impact costs, because they may be
reasonably considered as arising naturally from the interruption.

That definition is simply a restatement of the law of damages recognised in most common law countries. In countries where
the legal system does not recognise damages (a number of European countries), the same or a similar amount would probably
be payable as compensation pursuant to the terms of the contract.

I have set out the possible legal basis for recovering impact costs only to demonstrate the principles governing the calculation of
the applicable compensation. It goes without saying that not all contracts are the same: some contain no enabling provisions at
all, while others limit the amount of recovery (for instance, payment of profit on parts of the compensation may not be allowed).

Impact Costs: When and Why?

Even experienced construction engineers or legal counsel may think first of lost labour productivity when discussing impact
costs. This is understandable, because lost productivity is almost always an issue, and at times the only issue, in determining
the amount of a contractor's entitlement.

Those opposing the payment of impact cost claims argue that the contractor is simply seeking compensation for his own
inefficiencies or is trying perhaps to make up for an inaccurate estimate. Both arguments may be valid on occasion.

The burden of proof is therefore heavy on contractors, but more so with respect to causation and less so respecting the amount.
This principle is set forth in a leading U.S. Supreme Court case:
It is true that there was uncertainty as to the extent of the damage, but there was none as to the fact of damage; and there is
a clear distinction between the measure of proof necessary to establish the fact that petitioner had sustained some damage

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and the measure of proof necessary to enable the jury to fix the amount. The rule which precludes the recovery of uncertain
damages applies to (damages which do not definitely result from) the wrong, not to those damages which are definitely
attributable to the wrong and only uncertain in amount.2

The apparent leniency demonstrated in this U.S. decision, which has its counterparts in most common law countries, nevertheless
demands proof of a causal connection, one that is "definitely attributable" to the interruption. In assessing inefficiencies, that
link, tying an identified cause to an alleged effect, can seldom be established without exercising at least a degree of subjective
judgment. More important, the link cannot be demonstrated without some basic understanding of construction productivity and
reasons behind fluctuations in labour productivity.

Productivity is the ratio between output and one or more of the inputs used in the production process. If only one input is used,
the result is Single Factor Productivity; if two or more inputs are used, we refer to Multiple (or Total) Factor Productivity. The
most frequently used inputs are assets, sales, labour costs, and number of hours worked. The ratio of output to assets represents
capital productivity, while the ratio of output to labour quantity or expense represents labour productivity.

The measurement of output can be very complicated in the construction industry. The measure of output should be selected
with a view to minimizing (if not eliminating) changes in productivity that are unrelated to the input under scrutiny. Changes
in quality can be brought about by:
(1) changes in the blend of costly resources used in the production process, e.g., replacing locally-produced precast concrete
wall panels with imported marble;
(2) technological innovation that raises the quality of the product without a corresponding increase in labour input, e.g.,
the introduction of resin-coated reinforcing steel in exposed concrete structures; and
(3) design change that reduces (or increases) labour input requirements in the production process but substantially increases
(or decreases) the operating costs, e.g., replacing hand-placed riprap with truck-dumped riprap in hydraulic structures.

The technological innovation referred to above does not include a change in construction methodology, which is an input
consideration.

A further problem in measuring productivity is how to treat intermediate inputs, such as purchases of goods and services (e.g.,
precast concrete) by the on-site contractor from off-site suppliers and/or manufacturers. In most construction operations today,
intermediate inputs equal or exceed the inputs of on-site labour; nevertheless, it is highly questionable whether published index
values properly account for all off-site labour hours used to produce the supplies that are included in the output.

The evaluation of the relationship between labour and construction equipment presents another major problem in measuring
productivity on a global basis. For example, when motorised scaffolding replaced tubular scaffolding, which had to be
dismantled to be moved from place to place, or when the size of hauling and loading units increased, the ratio between labour
and equipment input changed dramatically. Furthermore, productivity analysis should acknowledge the difference between (a)
measuring the effectiveness with which labour is utilised in the construction process, and (b) the relative efficiency of labour
building things at a given time and at a particular place.

The latter approach, i.e., the measurement of relative efficiency, is the one usually applied in calculating impact costs, because
as a rule one is interested in the difference (i.e., the loss) between productivity before and productivity after the impact. This
type of determination (i.e., measuring micro-productivity) is perfectly acceptable for most impact calculations, but would fall
short when the impact of a major design change, obliging the contractor to alter his entire method of operation, was being
analysed. Here the real increase in costs would probably originate from changes in the type of equipment used. Productivity, in
its everyday sense, is a measure of the rhythm of a worker doing what he is required to do. If a worker is sufficiently skilled for
the task, with no external impediments disturbing him, and is reasonably well-motivated, then he is probably working efficiently
(at least as efficiently as possible under the given circumstances). His level of productivity is a relative figure, however, as
productivity varies from job to job and from trade to trade within the same job. Productivity for the same task tends to be higher
in urban areas than on rural jobs. Productivity varies with the size and type of contracts (e.g., larger jobs usually yield lower
productivity, and cost-reimbursable contracts tend to affect productivity detrimentally).

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Accordingly, in analysing productivity, results on the same job should be compared to the extent possible. It has been said that
labour productivity in any given situation is governed by:
(1) a labourer's skill to do what he is required to do; and
(2) his attitude to his assigned task.
The first criterion, the skill of the individual, for all practical purposes, can be considered constant for the duration of the
project, understanding, nevertheless, that individual productivity will increase (up to a point) in proportion to the number
of times the task is repeated (the learning-curve principle).
The second criterion, which is usually equated with motivation, is governed by three factors:
(i) the attitude of the individual when arriving on the site. This may be the result of social background, family relations,
religion, and even political or union affiliation;
(ii) the work environment: adequacy of space, equipment tools, safety and sanitary facilities, ease of access, weather
protection, etc.; and
(iii) management practices: proficient planning and scheduling, efficient communications (adequate flow of
instruction), effective supervision and co-ordination (timely delivery of the required supplies, tools or equipment),
firm but fair discipline, and due recognition of achievement.

It is difficult to motivate a worker, but it is very easy to destroy motivation. Difficulties in a worker's private life (which affect the
attitude he brings to the site), the introduction of an impediment into the work environment, or a deficiency in the management
of a job can disturb a worker's rhythm, with adverse effects on motivation and hence productivity.

Some of these demotivators may be the result of inexperience or carelessness on the part of management or risks assumed by the
contractor. Others, however, "could reasonably be considered as naturally arising" from causes that, under the particular contract,
entitle the contractor to additional compensation. Costs generated by this second category of demotivators are considered impact
costs for purposes of this article. The fact that lost productivity can result from a number of compensable and non-compensable
causes acting together renders impact cost analysis that much more complex.

The three most common causes that give rise to impact costs are:
(1) delay;
(2) acceleration; and
(3) disruption.

Delay

Standard construction contracts recognize three types of delay:

(i) compensable;
(ii) excusable; and
(iii) chargeable.
(i) A compensable delay occurs when the contractor is delayed by an act or omission of the owner (or those acting on his
behalf), or by an event that, under the governing term of the applicable contract, entitles the contractor to both extension
of time and additional compensation. Delays normally considered compensable include impeded access to the work site,
late supply of drawings or other information, and owner-purchased material or equipment.
(ii) An excusable delay is when the contractor is entitled to a time extension but no compensation (i.e., there is no impact
cost). Examples of delays in this category: force majeure, strikes or lockouts, and in general, delays beyond the control of
either party (other than weather delays in some contracts).
(iii) Chargeable delay entitles the contractor to neither a time extension nor compensation. Chargeable delays include
weather delays (in some contracts unusual weather gives rise to extensions of time and sometimes even compensation),
and in general, problems of the contractor's own making.

Perhaps the most common reason for delay-associated productivity loss is weather; that is, as a result of a delay, some operations
have to be performed under inclement weather conditions.

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Studies indicate that outside workers perform most efficiently between 21 and 27 degrees Celsius (70-80 degrees Fahrenheit).
Loss of productivity depends on the type of work (i.e., whether the task requires fine motor skills or gross motor skills). It
may be as much as 40 per cent as temperatures drop below freezing or rise above 38 degrees Celsius (100 degrees Fahrenheit).
In calculating productivity loss, the chill factor (i.e., temperature combined with wind velocity) and relative humidity should
also be considered.

In some parts of the world, work pushed into a rainy season can also give rise to productivity losses. Unlike cold weather,
however, rainy weather has not been the subject of published data.

Weather-caused productivity losses have been accepted in the past as valid causes for compensation in situations where a
building could have been closed in (i.e., the exterior skin or envelope completed) prior to winter but for owner-caused delays,
and where the loss of productivity resulting from working under "exposed" conditions was compensable.3 Similarly, when an
owner delayed the start of work and thereby obliged a contractor to carry out during November and December outside work
that was tendered on the basis of "working conditions normally encountered during September and October", the Court found
for the contractor, stating in part:
The next dispute over cl. I is the meaning and method of determining 'additional costs'. This gave the learned trial judge
some difficulty which, with deference, I do not share. They are the amount by which the cost of doing the work under
winter conditions exceeds the cost of doing it under ordinary September and October conditions. The question is essentially
one of fact. Where the amount involved is the cost of doing a type of work that would not be required under ordinary
conditions, eg heating cable, the cost of that work can easily be segregated and established, as was done. But where the
additional cost is caused by a decrease in the productivity of labour and machinery, it is difficult, if not impossible, to
segregate and identify the items of additional cost; but it is still possible to measure the additional cost, assuming efficient
and skilful conduct of the work, by comparing the actual cost of doing the work with the estimated cost of doing it under
ordinary conditions. This was substantially the method adopted by the learned trial judge, although he took the normal
costs to be the tendered prices, as expressed by the stipulated unit costs. The evidence led by respondent shows that the
stipulated unit costs represent the fair and reasonable cost of doing the work under ordinary conditions, and that evidence
was not challenged by cross-examination or contradicted by other evidence. In my respectful opinion, the learned trial
judge, in the light of that evidence, employed a proper measure of the additional costs under cl. I.4

There may at times be overlap between delay and disruption; delay could conceivably give rise to disruption and vice versa.
The most common delay-caused disruption is when a missing piece of equipment, material or design information (such as
a contemplated change order) obliges the contractor to interrupt the orderly sequence that would normally be followed to
complete a job. Workers who know what is expected of them — who know what they are doing today, what they will be doing
tomorrow and the next day, and how their activities relate to the successful completion of the project — develop a rhythm.
Labour productivity is at its highest when there is a good job rhythm. When this rhythm is broken because something is missing
(a piece of information, a decision, a vital supply) the sequence has to be revised. Productivity will then suffer, with adverse
consequences for both the work directly affected and the unchanged work.5

In one of the milestone cases in Canada, the Supreme Court accepted that constructing a railroad by commencing near the
centre and working out in both directions from that centre point was more expensive than starting at the end of the existing line
and working continuously towards the new terminus. The Supreme Court also found that because the reason for this out-of-
sequence work was a delay on the part of the owner, the contractor was entitled to be compensated for his additional costs.6

Acceleration

Acceleration came into prominence in the United States during the initial missile silo construction programme in the 1960s.
Acceleration occurs when a contract variation (e.g., a design change, differing site conditions, quantity increase, or compensable
delay) obliges the contractor to accomplish more work during the same or a shorter period of time than he would have had under
normal conditions. This practice is sometimes called "buying back time", because instead of granting a time extension, the

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owner orders the contractor to make up the time that under normal circumstances would have had to be added to the contractual
completion date in order to perform the extra work.

Acceleration may be undertaken pursuant to an affirmative order or by way of "constructive acceleration" (at least in the United
States). Constructive acceleration is definitely not a valid basis for a claim in England or under FIDIC contracts, and is probably
not in Canada either, although there was one decision here that, if followed in subsequent cases, would raise an interesting
question. In the case the Judge found as follows:
If there are delays for which the Contractor is totally responsible, then the cost of acceleration to overcome those delays
must be paid by him without any recourse to the Owner. Contract 25 makes provision for the relief of the Contractor
when his work has fallen behind schedule through Owner-caused delays or unavoidable delays. S 1.02.02, which requires
completion of the work by specified dates, empowers the Engineer to allow extensions of time 'For Extra Work or Any
Other Reason'. He is not required to grant extensions, no matter what the cause of the delay. If he should decide against an
extension of time in a clear case of Owner-caused delay, the result is that the Contractor remains legally bound to complete
by the contract dates. That may involve acceleration — at additional cost — to overcome the delay. In such circumstances,
fair treatment would require the Owner to pay that extra cost.7

Later in the judgment his Lordship commented:

Breach of Contract 25 through refusal to pay for acceleration, undertaken in lieu of time extensions to which the contractor
was entitled, was fundamental by any test. Discussion of the point is labouring the obvious. Consider the importance that
the parties would seem to have attached to the term thus broken. The longer the delay caused by the Owner's default, the
greater would be the expense of the Contractor in accelerating to overcome their effects. The Contractor, in performing
efficiently, and with good fortune, could find a profitable contract turned into a financial disaster.

It is possible, however, that the wording of cl. S 1.02.02 (pursuant to which the engineer is not required to grant extensions
regardless of the cause of the delay) would distinguish this judgment (overturned on appeal) from others where the engineer
ought to have granted an extension but refused to allow extra time.

A construction project carried out in the acceleration mode is usually a hotbed of inefficiency. The leading reasons for lost
productivity are:
(a) overtime;
(b) overmanning (or crowding);
(c) introducing multiple shifts;
(d) stacking of trades (creating congestion); and
(e) unavailability of skilled manpower.

(a) Overtime

Although the definition varies somewhat from place to place and from trade to trade, this generally means working in excess
of 40 hours per week. Most studies indicate that 40 hours per week is the optimum work period and that working longer hours
reduces the rate of output. There are several reasons for this slowdown: first and foremost, workers tend to pace themselves by
slowing down to accommodate the longer day. The resulting productivity loss, according to some sources, may exceed the time
worked beyond the normal 40-hour week.8 Simply stated, after 9 weeks of continuous overtime the output achieved in a 50-
hour work week is less than what could have been achieved in a 40-hour week.

Two caveats should be considered: the introduction of work weeks shorter than 40 hours (37.5 or 35 hours) and compulsory
coffee breaks has raised questions about the applicability of earlier studies. Second, contractors occasionally find that to attract
and keep sufficient (and suitably skilled) manpower, it is necessary to offer overtime work as an incentive. When this occurs,
the cost of such overtime must be borne by the contractor.

(b) Overmanning

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Overmanning (or crowding) occurs when more workers are placed in a given area than can work productively. If this is done
in response to an acceleration order from the owner, the contractor is probably entitled to be compensated for his impact cost,
i.e., the cost of working at lower-than-normal efficiency. Overmanning may take the form of increased crew size (for a given
operation) or the deployment of multiple crews: in either case, a loss of productivity will occur.

Optimum crew size for an activity represents a balance between an acceptable rate of progress and the highest possible level
of productivity. Increasing the number of workers in a given area above optimum will usually yield better progress, but at
reduced productivity. As more workers are added to the optimum crew, each new worker increases the rate of progress (not
just productivity). Experience shows that on a greatly overmanned project, the rate of progress may at times be improved by
reducing the number of workers and/or equipment on the site.9 Overmanning tends to dilute supervision, slow down and/or
confuse material delivery, and, in general, affects the morale of the workmen.

(c) Multiple shifts

Introducing multiple shifts is another — often less distractive — way of adding more men to the work force. Double- (or perhaps
triple-) shifting can be a reasonably economical way to accomplish more work within the same period of time, but depending
on the type of work, it can also give rise to total chaos. Experience tells us that trades requiring fine motor skills are ill-suited
for double-shifting; where activities require high precision, overall output may even be lower with a double shift than it would
have been with a single. Gross motor skill trades, on the other hand, and equipment operation (e.g., bulk excavation or building
an earth-fill dam) can be double-shifted very effectively.

(d) Stacking of trades

Stacking of trades (creating congestion) is a very expensive way of buying back time. This problem develops when different
trades, which should be working sequentially, are obliged to work simultaneously. When this occurs, the work area becomes
smaller (or at least, appears so) because all trades are trying to bring in the material required for their work. Each trade tries
to get ahead of the other without co-ordinating the sequence of their activities; as a result, newly-completed work often has
to be torn out. Congestion can also give rise to unsafe practices and conditions and probably leads to lost productivity in all
the trades involved.

(e) Unavailability of skilled manpower

This is a frequent outcome of acceleration in general and overmanning in particular. Every labour market has practical limits,
especially as far as skilled tradesmen are concerned. The greater the demands placed on that market, the greater the chances that
poor quality labour will be hired. It has been said that the average productivity of a crew is governed by its least skilled member.
The responsibility of training new arrivals has to be borne by their immediate supervisor who may neglect normal supervisory
duties while training is taking place. In one successful U.S. claim, the contractor was able to prove that change orders prevented
him from maintaining a stable labour force. At a time when the local construction market was at capacity employment, he had
been forced to let his experienced help go; later, when he could finally proceed, experienced labour was no longer available
and he had to train new workers.10 Here the loss resulted from the disruption of the job rhythm as well as the duplication of the
learning curve. Canadian Courts (at least in one case) have recognised that productivity at the commencement of an operation
will be significantly below the overall job average.11

The need to go through the initial learning period twice would, of course, increase total labour costs while at the same time
lowering overall productivity.

Disruption

Disruption occurs when workers are moved prematurely from one task to another, because of either a contemplated change or
a delay in the supply of required information or material. Regardless of the competence of the supervision and the attitude of
the labour force, loss of productivity is inevitable as a result of unproductive moving from place to place and breaks in the job

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rhythm. This loss increases with the duration of the outage (time spent away from the original task), particularly if the outage
is long enough to require a second orientation period after the crew has returned.

The usual disruption-related reasons for lost productivity are:

(a) out-of-sequence work (already described under "Impact costs — when and why: Delay")
(b) stop-and-go operation;
(c) restricted access; and
(d) the ripple effect.

(b) Stop-and-go

Stop-and-go operation, a classic disruption-caused impact, occurs when an essential component of an activity is not available
at the time it is required. The component might be a drawing, a decision on a contemplated change or on the acceptability of
workmanship, or pre-purchased material or equipment. In all cases, the activity is halted temporarily and the crew is moved
elsewhere to a new task. Breaking the rhythm, taking time to make a decision on the next step (usually referred to as reaction
time), packing up tools, moving to the next activity, unpacking, orientation, obtaining the required supplies — all these activities
are non-productive, requiring additional labour input without a corresponding increase in output — in other words, a net loss
of productivity. At times losses can be significant, on the order of 30 to 40 per cent.

(c) Restricted access

Restricted access (i.e., less than unimpeded access) may be caused by the untimely presence of other contractors, unworkable
site conditions, inadequate housekeeping, safety hazards, accidents, or simply some artificial barrier obstructing free access.
Some obstructions can be self-inflicted (thus not a valid cause for additional compensation) or form part of the contractual risks
undertaken by contractors. Others will be caused by or under the control of the owner. Loss of productivity resulting from the
latter kinds of restrictions is, of course, compensable, unless the contract contains a disclaimer clause excluding the possibility.

Restricted access, which may at times be the result of unco-operative behaviour by the owner, slows down the flow of workers,
supplies and/or equipment to the site, thereby reducing the time available for gainful employment. It may also produce idle
periods. At other times, restricted access can give rise to out-of-sequence work, which reduces efficiency significantly.12

(d) Ripple changes

These are changes to one aspect of the project that affect the sequence of performance of other activities. Examples of this type
of impact include variations in the quantity of an item (say, reinforcing steel) that have to be installed in parallel with another
item (say, the formwork) that has not changed. In this case increasing the quantity of the first item will slow down (and give rise
to a loss of productivity in) the second item. In another example, involving an industrial building, the mechanical contractor
was subjected to a large number of delays. At first, this delayed progress on his portion of the job and on the overall project.
As a result, the follow-up electrical contractor worked at reduced efficiency. The mechanical contractor eventually had to work
extensive overtime to buy back the initial delays. The electrical contractor, who was not involved with the changes (and thus
not entitled to additional compensation), also had to work overtime for fear of losing his crew. This type of ripple effect from
changes is properly compensable.13 The ripple effect may originate with another independent contractor on the same site,14
for example when the owner fails to ensure that the responsible contractor provides winter heat, for the entire site, including
spaces where other contractors are working.

Time-related Impact Costs

Loss of productivity, even though it makes up the greatest percentage of impact cost claims, is not the only kind of impact
cost. Impact costs may also consist of purely time-related costs, particularly when delays are involved. Here the contractor's
entitlement depends on the cause of the delay, and only if the contractor sustains a type of delay that is compensable under the
terms of the contract is the quantum to be calculated. The quantification may be very simple, such as when a missing piece

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delays the entire project by, say, one month, but causes no productivity losses. Quantification can also be very complex, such as
when the actual delay results from three concurrent causes, one compensable, one excusable, and one for which the contractor
must bear the consequences. Until relatively recently, the Courts tended not to want to deal with the latter situations and "left
the parties where they found them". This attitude has been changing; today Courts may try to apportion responsibility for the
overall delay (and cost). The method used to do so is not part of this article, but because that exercise may be considered a
component of quantification, it is summarised here.
First, not every delay extends the duration of the entire job. Most literature on the subject states that only delays on the
critical path ought to be taken into account. This advice is valid in theory.
Second, the critical path on any project tends to shift, sometimes more than once, sometimes at frequent intervals. This is
because the amount of time assigned for various reasons, such as delays (of whatever type), progress slower than anticipated
(for whatever reason), bad weather (affecting one part of the job and not others), and design changes. Non-critical activities
(i.e., activities not on the theoretical critical path) are supposed to have "floats" (leeway to slip without affecting the overall
duration of the job). These floats will maintain their importance only as long as the assigned duration of the non-critical
activities remains unchanged, which happens rarely. A change in the duration of one significant but previously non-critical
item can often shift the critical path.
Third, resources assigned to the job (such as a major piece of equipment or a scarce trade) can, and often do, govern overall
progress, and thus could be considered the critical path.
Finally, but most important, loss of productivity (giving rise to impact costs) originating with a non-critical activity, can
render critical another, previously non-critical, activity.

The possible combinations of these (and other) eventualities are infinite; accordingly, precise mathematical formulae to solve the
problem cannot be developed. Moreover, delays affecting non-critical activities could conceivably cause compensable impact
costs, such as when the critical path (the real one) goes through the core of the building, e.g., the elevators, but a design change
in the curtain walls forces installation of windows to extend into winter, thus causing productivity loss and extended duration
costs to the window installer, and perhaps even to painters and electricians.

Preoccupation with the critical path can therefore give rise to erroneous conclusions. A cause-and-effect examination has to go
into much more detail; each trade may have to be investigated separately. In the majority of cases, determining (i.e., apportioning)
the duration of and responsibility for individual delays and their impact on the overall job can be done only by dividing the
job into discrete time frames, e.g., 3 months or 6 months on long-duration jobs. The analyst then assesses the actual progress
achieved during a given period on an activity basis by comparing it with the schedule in force (or intended to be followed) at
the beginning of the period examined.

This type of analysis is known in the trade as the snapshot method. Its principle was first introduced by Professor John W.
Fondahl of Stanford University and subsequently expanded by the U.S. Army Corps of Engineers in 1979 and others.15,16

Apportioning responsibility for concurrent delays will always be subjective, and the reliability of the assessment will depend
on the experience of the analyst. The amount of compensation payable to the contractor is obtained by applying the percentage
of owner's responsibility to the total delay cost.

Time-related impact costs can be divided into two groups:

(i) Directly assignable — function of time

These may include costs that, depending on the party involved, are known as job overhead, site overhead, site administration
costs, general conditions, general expense, or indirect costs.

In dealing with time-related costs, care must be exercised to ensure that only those indirect activities that are a function of
time are used. This can be ascertained by considering all the sub-accounts that go into the total category. For example, job
mobilisation and demobilisation are not time-related. Typical items that should be taken into account are:

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Site supervision and administration:

Project manager, resident engineer, field engineer, cost engineer, scheduling engineer, draftsman, surveyors;
superintendent/s;
office manager and administrative staff;
timekeepers, warehousemen;
bookkeepers, accounting personnel;
secretary, clerks;
watchman, safety supervisor;
messengers.

Equipment and tools:

Company and outside rentals, equipment maintenance.

Temporary services:

Light and power, water, heat, pumping (including maintenance crews).

Temporary offices & storage facilities:

Trailer rentals, warehouse, maintenance, photocopying, office materials, telephone and telegraph.

Delay costs can be calculated in a number of ways, but the two most frequently employed are as follows:
(a) when the period of delay is clearly identifiable on the time scale (i.e., represents specific calendar units), then the
corresponding costs should be extracted from the contractor's book of accounts; or
(b) when a delay spans several months (as with disruptions) or has been accumulating throughout a job, but has nevertheless
been determined to represent a precise duration (expressed in units of time, such as days or months), then the total time-
related cost of the job is divided by the actual duration of the job (expressed in the same units as the delay). Then this "unit
cost" is multiplied by the number of delay units.

(ii) Directly assignable — not time-proportioned

These are the costs that are assignable specifically to a particular job and occur as a consequence of a delay. These costs are
not necessarily time-proportional.

Items to be considered are:

(a) cost of escalation: productive work is performed or material has to be ordered at a date later than scheduled. Higher
labour rates come into effect, material prices and equipment rentals escalate in the interim;
(b) cost of any work necessary to make good damages or deterioration sustained on stored material or weather-exposed
uncompleted work;
(c) possible shortage of labour and associated recruiting costs;
(d) increased cost of equipment rentals; and
(e) increased cost of subcontractors.

Acceleration costs may also include time-related charges, such as additional resources, e.g., labour, construction supplies, tools,
or equipment. The time-related costs of the originating delay (giving rise to the acceleration) must also be accounted for in
calculating the cost of acceleration. In a case of accelerated performance in response to excusable delays, the contractor must
credit the "would have been" delay costs (the costs saved as a result of the acceleration) against the costs of the acceleration.
The same credit is not applicable in circumstances when the purpose of the acceleration is to buy back compensable delays.

Calculating Productivity Using Published Charts

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Calculating Impact Costs, 27 C.L.R. 239

The measurement of worker fatigue and its effects on labour productivity has occupied scientists, engineers and doctors
for decades. Research and records of productivity fluctuations resulting from changes in working hours formed part of that
preoccupation for some time. The latter studies concentrated on the overall effects, including productivity losses, absenteeism
and increased frequency (and severity) of accidents, associated with long hours of work. Perhaps the first reported statistical
analysis of overtime-related productivity losses was published by the U.S. Department of Labour in 1948.17 It indicated that
40 hours per week yields the highest level of productivity and that the most efficient way to increase the number of hours per
week is by maintaining the daily eight hours but adding an extra day (i.e., 6 × 8 = 48).

In 1964 a second study was carried out by a number of contractors in the Detroit area. They concluded that the net result of
working 40 hours straight time plus 32 hours overtime (6 days per week, 12 hours per day) is the same as working 47 to 52 hours
straight time.18 Subsequent studies were made by Proctor & Gamble, the Mechanical Contractors' Association, the Electrical
Contractors' Association, the U.S. Army Corps of Engineers,19 and most recently, the Business Round Table.20 The results
of these reports vary somewhat, but in general seem to indicate similar losses in productivity. All the studies were based on
40-hour weeks.

A recent (1984) unpublished study by Revay and Associates Limited, covering nearly 2 million man-hours, raises some doubts
about the 40-hour concept, especially since the introduction (at least in Canada) of mandatory coffee breaks and the 35- or 37.5-
hour week. It is also possible that the traditional work ethic of North American construction labour has been changing in recent
years, thus putting the results of earlier studies in question. The aforementioned study by Revay and Associates also indicates
that the net productivity loss associated with overtime work may not be as significant as it was once considered; moreover,
those losses may be eliminated entirely with some type of financial incentive or bonus.

It is now clear that the level of overtime-related losses varies greatly with the type of work. It is also possible that in certain
situations boredom can have a more significant influence on productivity than fatigue. Boredom is brought on by poor motivation
towards the job or by a task that is too easy or unchallenging. Because of the usual variability of construction work, boredom
ought to be less of a problem in construction than it is in the manufacturing sector. Boredom was nevertheless a noticeable
factor in some of the fast-track projects where multiple changes were part of the daily routine.

These variable and changing results serve to underline the great potential for inaccuracies relating to the use of overtime charts;
nevertheless, at times they may be the only basis available for calculating losses of productivity.

Charts dealing with possible fluctuations in productivity caused by other demotivators do not fare much better, because they
all represent averages, and no situation is exactly average; once again, however, they have to be used in the absence of better
information.

Statistical information is available to estimate productivity losses resulting from:

(a) overtime;21
(b) inclement weather;22
(c) stop-and-go operation;23
(d) overmanning;24 and
(e) stacking of trades.25

The relative reliability of these charts has already been described. There is, however, a further and even greater problem that
should be considered before accepting the values indicated on such charts. On most construction jobs where impact cost is an
issue, the loss of productivity is a result of a number of different but parallel causes. None of the published charts offers any
help in calculating cumulative losses. There are analysts who advocate adding together the various percentages (taken from the
relevant chart), but such a procedure may yield a 100 per cent loss, meaning that no progress at all was achieved.

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Admittedly, at times it may appear to the owner that nothing is being accomplished, but it is hard to imagine a contractor
allowing a work force to sit idle for days on end. The notion of an 80 to 85 per cent productivity loss might be conceivable under
extremely adverse conditions, such as millwrights trying to set a turbine in the open air at minus-40 degrees with 60 knots of
wind blowing; but even in these unusual circumstances, the loss would surely not be 100 per cent — much less a loss exceeding
100 per cent (which would be arrived at by adding together a 35 per cent overtime loss, 30 per cent loss due to overmanning,
and 45 per cent loss due to weather).

Notwithstanding these uncertainties, Courts (at least in the United States) have accepted estimated percentages as the basis for
their awards, for example:
(1) a 50 per cent loss of productivity for winter work in Alaska;26
(2) a 25 per cent loss of productivity due to extensive blasting which disrupted the work (i.e., stop-and-go operation);27
(3) a 20 per cent loss of productivity due to frost permeating fill;28 and
(4) a 25 per cent loss of productivity due to disruption and increased man-hours.29

Total Cost Method

Most owners approach impact cost claims by either denying their validity or demanding detailed proof of the loss experienced
by the contractor with respect to each incident — something that is impossible to provide. At the other extreme, contractors
want to claim the difference between their actual costs and the contractual revenue, without even trying to establish causal
connection between the reason for their entitlement and the quantity of the corresponding loss. The fallacy of this method
has already been demonstrated; however, the total cost method of determination may sometimes be the only way open to the
claimant to calculate damages.

It has been established that for a total cost method of quantification to be acceptable, the contractor first must prove that:
(i) the tender of the contractor was reasonable;
(ii) the actual cost is fair and reasonable;
(iii) all of the increases in costs (over and above the estimated costs) resulted from the change/breach and that the contractor
is not responsible for any part of the increase; and
(iv) there is no other practical method available to quantify the damages.

The total cost method of calculation is not synonymous with the quantum meruit principle, although sometimes it will yield
the same result.

Probably the best example of the application of this method is the following U.S. decision (eventually decided pursuant to a
modified total cost method):
We agree that the nature of appellant's claim is such as not to be susceptible of proof on an item-by-item basis in the
manner insisted on by the contracting officer. Even if such an avalanche of minutiae were available, it would not be of
any help in arriving at the increased costs resulting from the causes found in Section 13 supra to entitle appellant to price
adjustments. The dollar amount of appellant's claim cannot be determined on an item-by-item, part-by-part basis any more
than a tapestry can be evaluated by separating it into its individual fibres and valuing each fibre. The causes for which
appellant is entitled to price adjustments are so intermeshed with each other and the performance of the contract as a whole
that the only sound and realistic method of determining their cost-effect is from the standpoint of their overall effect on
the performance of the contract.30 (emphasis added)

The difference between the modified total cost method (used by the Court in the case just cited) and the total cost method is
that in the former the contractor adjusts his bid estimate (for the purpose of quantifying his compensable losses) for activities
that he concedes were underbid or deemed to be his responsibility.

The Differential Method of Calculation

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The shortcomings described above, coupled with the owners' reluctance to accept such obviously questionable results, forced
the industry to search for more reliable ways of determining impact costs. The leading role in that research was assumed by
the Office of Chief of Engineers, U.S. Army and the U.S. Armed Services Board of Contract Appeals. The latter developed
the guidelines used currently by both the administrative tribunals and the federal Courts in the United States. These guidelines
were stated in the Fermont case, as follows:
There could be at least three different approaches to quantum. One would be to show the costs of particular actions that
were taken in order to accelerate the work and that would not have been taken otherwise, or, which is equivalent, the
reasonable estimated cost of performing without the acceleration, compared with the actual cost with the acceleration
(which of necessity would require identification and reasonable costing of specific acceleration action actually taken)
...A second would be total cost or modified total cost approach, based on a comparison of actual costs with the bid estimate,
perhaps with adjustments for any underbidding or any causes of cost-growth not attributable to the acceleration. Appellant
has not invoked precisely this method, either, and indeed it is frowned upon by the Board and Court of Claims, and is
adopted only when other more reliable methods of computing costs are unavailable and the reliability of the supporting
evidence for a total cost approach has been substantiated...
...The third method, which appellant has chosen, is to compare the actual cost of performing without the acceleration (ie
fabricating the first set of articles) with the actual cost of performing with the alleged acceleration (ie of fabricating the
second set of articles)...31

This third method of quantification has in subsequent decisions been defined as the classical approach and called the differential
method of cost calculation.

It should be obvious that this method of quantification satisfies both the governing legal principles (e.g., Victoria Laundry
(Windsor) Ltd. v. Newman Industries Ltd., [1949] 2 K.B. 528, [1949] 1 All E.R. 997 (C.A.) or Ranger v. Great Western Railway
Co. (1854), 5 H.L. Cas. 72, 10 E.R. 824 (H.L.)) and the hard realities of construction.

More specifically, it offers a means of measuring the difference between actual productivity and what productivity would have
been saved and except for the impact under consideration. The former is frequently referred to as "normal" productivity, because
it is representative of the level of productivity the contractor, under normal conditions, could have maintained for the duration
of the job. It therefore incorporates losses in productivity resulting from either the inherent shortcomings of the contractor or
the risks assumed by him under the governing terms of the contract — simply stated, normal productivity for that contractor
for that specific project.

However, the differential method requires care to ensure that only like operations are compared. For the differential method to
be acceptable, a contractor must demonstrate that:
(1) the unaffected items (having the normal productivity) are representative, both in complexity and method of execution,
of the items affected by the causes or impacts under examination;
(2) the difference between the actual productivity (or cost) of the affected items and the normal productivity (or cost)
resulted solely from the causes under examination;
(3) all items analysed have been affected by the cause in question; and
(4) the normal productivity (or cost) of the unaffected items is supportable and is valid; it allows for all applicable risks
and/or inherent shortcomings of the contractor and represents a sufficiently large percentage of the item(s) of work under
examination to generate reasonable confidence in the comparison.

Unfortunately, the type of cause-and-effect relationship described by these guidelines is seldom obvious, and often a
considerable amount of investigation is required before even preliminary conclusions can be drawn. It must be clear, therefore,
that impact cost analysis will be always subjective and will generally be based on calculations performed after the fact.

This (from the owner's perspective) undesirable feature should be self-evident from the nature of the problem; even so, there
is usually an understandable desire to obtain at least some of the answers before the fact. After all, owners (and/or their
designers) may be making far-reaching and perhaps expensive decisions about the justification of a proposed design change.

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This determination, if made without proper allowance for anticipated impact costs, could turn out to be totally erroneous. In
the case of one or a few simple changes, an objective estimate is possible. Similarly, when the cause of the anticipated impact
can be limited to a reasonably well-known single demotivator (e.g., overtime or inclement weather), a front-end estimate may
be acceptable. On complex jobs, where any single activity can influence the timing and the rate of progress of many related
operations, and in the case of cumulative causes, such as working overtime in a congested area with inadequate access during
inclement weather, front-end "guesstimates" can be wrong by as much as 200 or 300 per cent.

Experience tells us that determining impact cost is almost always an heuristic and seldom a deterministic exercise. There are,
nevertheless, some general rules to guide such an analysis. The starting point, in all instances, ought to be an examination of the
productivity history of the operation (or job) in question. Recalling the third criterion in the guidelines cited earlier, all items
analysed have been affected by the cause in question.

In reality, the tendency is to turn this around and look for work activities that have been affected by some or any impact
during the life of the project. This can be accomplished by plotting the periodical productivity of both the suspected individual
operations and the entire job on a time-scale. Graphical presentation of this history is always preferable, because it tends to
make the conclusion self-evident. Unfortunately, this exercise often presents considerable problems because of inadequate or
unsuitable cost and progress records. Contractors who maintain weekly or monthly cost and progress records should not have
much difficulty, but those without suitable (i.e., quantity of work put in place) records must first establish their most likely
progress from the available records. Many firms report progress as a function of expended man-hours; this method is always
suspect and seldom valid. Problems can also arise when progress is reported as a percentage (as opposed to hard quantities),
because certain types of work may not be readily susceptible to physical measurement.

Probably the best universal method of measuring progress is to convert both quantities and percentages to "earned" man-
hours. This is done by expressing the work actually accomplished in commensurate budget man-hours. Example: if a contractor
estimated 0.75 square metre of formwork per man-hour, and completed 750 square metres during the month, he has earned 1000
man-hours. Similarly, if an operation was estimated to require 650 man-hours, each percentage point of completion equates to
6.5 earned man-hours. Needless to say, in any of these determinations, "front-end loading" ought to be redistributed. The added
advantages of using earned man-hours (as opposed to quantities or percentages) is that the cumulative productivity of many
different activities (e.g., formwork, placing rebars and concrete) can be analysed.

The ratio of earned man-hours to the corresponding number of man-hours actually expended is the productivity achieved by the
contractor during the period under examination. A ratio of more than one usually represents better than estimated productivity,
with less than one representing productivity below the estimate, although some analysts tend to state this relationship the
opposite way.

Calculating productivity on a period-by-period basis could present a problem in handling work-in-progress, both as brought in
from the prior period and as unreported at the end of the current period. Without addressing this issue one might be comparing
apples with oranges. With reasonably uniform progress in each period there may be no danger, but periods of build-up and
slow-down can produce a significantly distorted figure, requiring commensurate adjustments in either the earned man-hours
or the expended man-hours.

A further safeguard is to work with cumulative values. This method of analysis is almost always more reliable because it tends
to smooth out inexplicable surges or letdowns that may occur for relatively short durations without identifiable causes. (For
example, motivation could be affected by other than job-related events.) If plotting cumulative experience, a significant change
in the slope of a given trend is the best indicator of some impact.

Considerable time may be needed to prepare and evaluate graphs of the various activities and/or the job as a whole. Example:
if similar breaks can be seen in the productivity trends of many related activities, the analyst should look for a specific and
readily identifiable cause. If the similarity tends to be less pronounced, then there may be many overlapping causes, such as a
great number of relatively insignificant design changes.

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A difficulty often encountered in such situations is that various changes affect different activities to a lesser or greater extent.
In fact, some activities may be affected by only a relatively small percentage of all changes. In such cases, each activity ought
to be analysed separately, with both the normal productivity and the loss calculated for each individual activity.

Another situation is when design changes start in the early stages and last throughout the job. Accordingly, no normal period
(i.e., a period when productivity may have been normal) can be identified. If such a predicament applies to one or a limited
number of activities only, then normal productivity for those activities may be established by reference to other related but
unaffected activities, keeping in mind the first criterion of the guidelines (representativeness in complexity and method). If the
problem is of a general nature, then the analyst must resort to estimating along the lines described for the first method in the
Fermont decision. Selecting normal productivity is always the most difficult task of any impact cost analysis, but being forced
to rely on estimating makes it almost insurmountable. The burden of proof — to show that the method of calculation meets the
various criteria of the guidelines — is exceptionally heavy on the contractor, and rightly so, because this method of calculation
is the same as the total cost method, which is seldom looked on favourably.

The fourth criterion of the guidelines is worth repeating here. In order for this method to be acceptable, it must be demonstrated
that:
4. The normal productivity (or cost) of the unaffected items is supportable and is valid; it allows for all applicable risks
and/or inherent shortcomings of the contractor and represents a sufficiently large percentage of the items(s) of work under
examination to yield reasonable confidence in this comparison.

Some of the implications of these prerequisites have been already discussed in a general way. The specifics are also relevant.
To support statements about normal productivity, the contractor should maintain cost and progress records in a format and in a
manner to allow tracing (i.e., an audit trail) of the source data to the final report upon which the study is based. To be valid, claims
about normal productivity must contain all the cost components (e.g., direct labour, supporting crews, indirect labour, etc.) that
are included in the impact cost. To allow for applicable risks, the analyst must investigate and make appropriate adjustments
in respect of such risks as strikes, jurisdictional problems, inclement weather, material shortages, etc., in order to ensure that
both the normal period and the periods under examination are affected proportionately. To allow for the inherent shortcomings
of the contractor, the analyst must verify that the same supervision and overall management was in charge of the project during
both periods and, if not, investigate the implications and make the required adjustments.

The last item of the fourth criterion and the entire first criterion must be taken together. For an item to be representative of another,
it must exhibit similar characteristics. (In construction terms this means complexity, prevailing physical and underground
conditions, method of operation, trades used, supporting staff, etc.) For a sample to be sufficiently large in respect of the total,
all the characteristics listed (to the extent applicable) must be present in about the same proportion, in both the unaffected
and the affected activity(ies). The terms "confidence" and "size of sample" are not, and ought not to be, used in a statistical
sense. In fact, the extent to which compliance with these prerequisites is required will vary from job to job, depending on the
size, complexity, duration, and history of the project. Simply stated, determining whether the normal productivity satisfies the
prerequisites stated in the guidelines is a judgment call that can be made only by someone with exhaustive knowledge of the
job and extensive experience in the construction process.

Normal productivity need not necessarily be calculated using the same code of accounts as that for the affected work. Sometimes
relying on "similar" work is the only solution. The question is, of course, whether similar work can be considered representative.
The answer depends on the experience of the contractor's estimating staff and the reliability of the checks and balances employed
by the contractor in verifying the accuracy of the estimate. Experience shows that tender estimates are more reliable in total than
in detail, if for no other reason than that support costs (e.g., indirect costs) are often distributed arbitrarily. Accordingly, single
accounts (work items) should not be used to calculate normal productivity, unless the affected work is also charged to the same
code of account. This peculiarity is another reason why combining many related accounts usually yields more reliable results.

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If there is no "normal" period during the contract, then rate(s) of productivity achieved on other contracts of a similar nature
may be the only answer. For this relaxation of the guidelines to be acceptable, a contractor would likely have to satisfy the
following criteria:
(1) The work used for comparison should closely resemble the affected work;
(2) the weather conditions prevalent during performance of the two jobs should be similar;
(3) rural construction should not be compared with urban construction; and
(4) union jobs should not be compared with non-union work without making an allowance for the different skill level.32

In short, and by way of conclusion, quantifying impact cost claims is an art, and one that is unlikely to become a science.
The reliability of the result varies in direct proportion to the experience of the analyst and the adequacy of the information on
which it is based.

Footnotes
* The original version of this article was published in the International Business Lawyer, which is the journal of the International Bar
Association's Section on Business Law, and is reproduced with the permission of both the International Bar Association and the author.
** Note: The opinions expressed in this article are based on the author's experience and are for general information only. They ought
not be applied to specific situations without the advise of legal counsel.
1 11 C.L.R. 15, "Impact Costs".
2 Story Parchment Co. v. Patterson Parchment Paper Co., 282 U.S. 555, 51 S. Ct. 248, 75 L. Ed. 544 (U.S. Mass., 1931).
3 J.D. Hedin Construction Co. v. United States, 171 Ct. Cl. 70, 347 F. 2d 235 (Ct. Cl., 1965).
4 Electric Power Equipment Ltd. v. R.C.A. Victor Co. (1964), 49 W.W.R. 193, 46 D.L.R. (2d) 722 (B.C. C.A.).
5 Louis M. McMaster Inc., A.G.B.C.A. No. 76-156, 79-1 B.C.A. (1979).
6 Penvidic Contracting Co. v. International Nickel Co., [1976] 1 S.C.R. 267, 4 N.R. 1, 53 D.L.R. (3d) 748 (S.C.C.).
7 Northern Construction Co. v. B.C. Hydro & Power Authority, B.C. S.C., 1974 (unreported).
8 "Scheduled Overtime Effect on Construction Projects", Business Round Table (1980) and others.
9 Construction of the Montreal Olympic Stadium, November and December 1975.
10 S. Leo Harmonay Inc. v. Bank Manufacturing Co., 597 F. Supp. 1014 (S.D.N.Y., 1984); affirmed Harmonay Inc. v. Binks
Manufacturing Co., 762 F. 2d 990 (2nd Cir. N.Y., 1985).
11 Charlton-Leslie (Can.) Ltd. v. Universal Pipeline Enterprises Ltd. (1983), 48 N.B.R. (2d) 283, 126 A.P.R. 283 (N.B. Q.B.).
12 Continental Consolidated Corp., A.S.B.C.A. 10662, 67-1 B.C.A.-6127, or Flex-Y-Plan Industries Inc., G.S.B.C.A. 4117, 76-1,
B.C.A.-11713 (1976), 18 G.C. 271.
13 Metro Engineering, A.G.B.C.A. 6069, 1962 B.C.A.-16143, etc.
14 De Riso Brothers Inc. v. State, 373 N.Y.S. 436 (App. Div., 1930).
15 "Modification Impact Evaluation Guide", Department of the Army, Office of the Chief of Engineers (July 1979).
16 "Time Extension in Construction Contracts", S.G. Revay, 6 C.L.R. 253.
17 "Hours of Work and Output", U.S. Department of Labor, Bureau of Labor Statistics, Bulletin 917, U.S. Government Printing Office.
18 Qualified Contractor (March 1969).
19 Note 16, supra.
20 Note 8, supra.
21 Notes 16, 8, supra.
22 "Weather Effect on Mason Productivity", Journal of Construction Engineering, A.S.C.A. A.S.C.E.-1974 & "Associated General
Contractors", Constructor Magazine.
23 L.V. O'Conner, Foster Wheeler Corp., Livingston, N.Y., "Overcoming the Problems of Construction Scheduling on Large Central
Station Boilers".
24 Note 16, supra.
25 Michael H. Kappaz, "Effect of Scope Changes on Schedule", A.A.C.E. Convention, Wisconsin, June 26-29, 1977.
26 Urban Planning & Heating Co., A.S.B.C.A. 9831 71-2 B.C.A.-8980.
27 Continental Consolidated Corp., A.S.B.C.A. 10662, 67-1, B.C.A.-6127.
28 Bateson Construction Co., A.S.B.C.A. 6028, 63 B.C.A.-3692.

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29 Pilcher Livingston & Wallace Inc., A.S.B.C.A. 13391, 70-1 B.C.A.-8331.

30 International Aircraft Services Inc., A.S.B.C.A. No. 839, 65-1 B.C.A. P4793, at 22, 762.
31 Fermont Division, Dynamics Corporation of America, A.S.B.C.A. No. 15806, 75-1 B.C.A.-11139 (1975).
32 Clark Baridon Inc. v. Merrit Chapman & Scott Corp., 311 F. 2d 389 (4th Cir. Md., 1962), 5 G.C. 82, and Robert McMullan & Sons
Inc., A.S.B.C.A. 19129 76-2 B.C.A. 12072 (1976).

End of Document Copyright © Thomson Reuters Canada Limited or its licensors (excluding individual court documents). All rights
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