Supplemental Conditions

Occupy Philly and Delay Damages

By Wally Zimolong onNovember 18, 2011
Posted in Delay Claims

With the contract for the Dilworth Plaza renovation now awarded, the City has notified the Occupy Philly crybabies protestors that they must vacate Dilworth Plaza immediately.  However, the happy campers do not seem eager to move.  It begs the question: how long can they stay before the encampment begins to seriously impact the construction schedule for the Dilworth Plaza project and ultimately costs the taxpayers more money?

Construction schedules carefully sequence work in order to bring a project in on time and on budget.  If one sequence of the work is disrupted, the overall project schedule can be delayed resulting in additional labor costs for the contractors working on the project.  The contractors who have been impacted by the delay will look to the general contractor for additional compensation because of the delay.  The general contractor will likely pass those claims along to the owner.  This claims often end up in litigation compounding the already increased cost.

Any potential delay to an outdoor project is even more troubling.  Certain work on the Dilworth Plaza project will certain involve “weather sentitive” finishes.  As the name suggests, weather sentitive work is work that can only be performed in certain a certain climate.  For example, concrete work is a weather sentitive finish.  If the tempature is too hot or too cold, a contractor cannot pour concrete.  Therefore, if there is weather sensitive work on the Dilworth Plaza project , that is scheduled to be performed before the coldest Philadelphia weather sets in, that cannot be performed because of the Occupy Philly encampment that work will have to wait until the Spring.  Moreover, if that work is “predecessor work” meaning work must be performed before other work can begin – such as a foundation – the project schedule can quickly unravel. 

If the delay in commencing is not too long, there is no doubt that the general contractor on the Dilworth Plaza project, an experienced contractor familiar with this type of work, will be able to make up any delay caused by the protestors without much impact.  However, if the City fails to move the protestors soon and further delay ensues, the taxpayers could be left holding the bag when delayed contractors come looking for compensation.

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Temple of Delay: Spielberg Makes Delay Claims Interesting, Dooms Subcontractor’s Claim In The Process

By Wally Zimolong onAugust 26, 2011
Posted in Delay Claims

Last night, I took a break from Hurricane Irene coverage and caught an episode of  the Discovery Channel’s award winning, Steven Spielberg produced documentary, The Rising:  Rebuilding Ground Zero.  Interestly, the episode I caught dealt with construction project scheduling and delays.  Specifically, it focused on the challenges that  the project’s concrete subcontractor was having maintaining the schedule and the impacts the concrete sub’s delays were having on subsequent trades.  Leave it to Steven Spielberg to make delay claims, long known to make Judges beg for settlement and juries’ eyes glaze over, interesting and understandable to the average viewer.  The episode is a lesson to construction attorneys on how to explain delay claims in an uncomplicated understandable manner. 

However, in the process of presenting the challenegs a contractor faces in maintaining a construction schedule in an enjoyable and understanable manner, the episode also probably doomed any chance of the concrete subcontractor – who the producers as far as I know do not name in the program – from recovering any delay claim it may have.  Throughout the episode, the concrete sub’s colorful (and no doubt well intentioned) forman, Georgie Fitzgerald, repeatedly admits that it is the subcontractor’s fault that the project is behind schedule and that the concrete sub’s delay is impacting following trades.  You get an idea of what I am talking about in the imbedded clip below.

What the clip doesn’t show that the full episode does, is Mr. Fitzgerald explaining how he intends to make up project time and why he feels the project is delayed.  The episode even goes as far as showing project meetings involving all players discussing the delay.  Rarely do we see first hand how such meetings playout as we are usually left to only speculate based upon vague project meeting minutes.  If the delay claim ever did go to litigation, one could imagine a resourceful attorney simply playing these clips of Mr. Fitzgerald to a Judge, Jury, or Arbitrator. 

Because my bedtime is around 9 pm, I did not stay up to watch later episodes and am not sure if the concrete sub ever made up the delay.  I am also curious to know if a delay claim ever arose from the concrete sub’s delay.  And, if so, if this episode is being used in that litigation.  I know I certainly would use it. 

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Will Rejected Bids Lead to Increased Claims

By Wally Zimolong onJune 5, 2011
Posted in Contracts, Delay Claims, Public Bidding

What do the following projects have in common:  the Cape May Convention Center; the Western Reserve Road Project in Ohio; and the Guantlett Community Center in Pennsylvania?  They are examples of projects where all bids were rejected because they came in over budget.   While there are multiple reasons for this, by far the two biggest reasons are a recent spike in basic material and fuel prices and tight government budgets.

Are rejected bids a red flag for contractors looking to avoid claims?  It could be.  Elected officials may not be familiar with the value engineering process and may have trouble explaining to constituents the need to accept less for more.

Moreover, an already tight budget may lead to a government authority aggressively defending claims for additional compensation related to ambiguities or defects in drawings, plans, and specifications.

This are a few things a contractor should be aware of before submitting a revised and reduced bid on a public project. 

 

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About This Blog

Authored by Philadelphia attorney Wally Zimolong, Supplemental Conditions provides keen insight and insider analysis of construction law developments, prominent construction litigation and labor law in the construction industry.

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