Litigating Lost Productivity Claims in Construction: Developing Methodologies, ASCE Standards

A live 90-minute CLE video webinar with interactive Q&A


Thursday, October 7, 2021

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

This CLE course will guide construction counsel on best practices when pursuing and defending a lost productivity claim on a project. The panel will detail the methodologies for prosecuting a productivity claim and provide guidance on best practices for project management and field personnel to keep records that could support a lost productivity analysis and recent legal decisions on these types of claims.

Description

Construction delays are common in the building industry, and loss claims on projects in progress when COVID-19 struck will likely increase due to contractors performing work under conditions far different than originally contemplated when they bid the project and signed the contract.

Consequently, contractors pursue claims seeking compensation for adverse impacts to projects shut down or slowed because of the COVID-19 pandemic, and owners defend such claims. Documenting causation and accurately assessing loss of productivity will be vital to both parties. While COVID-19 has changed the construction industry in many ways, it has not changed the fact that claims for loss of productivity remain some of the most contentious and most difficult to quantify and prove.

There is no universally accepted standard for calculating damages for these claims. Contractors and their experts rely upon various treatises and studies on loss of productivity to present such claims in mediation, litigation, and arbitration proceedings. Over the years, courts have decided claims and awarded damages based on different methodologies for quantifying and proving such claims, often leading to inconsistent results.

Construction counsel proving or defending lost productivity claims can arm themselves with effective litigation strategies to achieve the best outcome for their client, including leveraging clauses in the construction contract to strengthen their client's position.

Listen to our authoritative panel of construction law attorneys discusses best practices for proving or defending lost productivity claims due to construction delays. The panel will also discuss proactive steps counsel can take and methodologies for determining losses and incorporating ASCE standards.

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Outline

  1. Litigating lost productivity
    1. Liability
    2. Causation
    3. Resultant injury
  2. Methodologies
    1. Measured mile
    2. Comparing actual productivity from the subject project to different project
    3. Comparing actual productivity to the contractor's bid or estimate
    4. Expert opinion
    5. Published inefficiency factors
  3. ASCE standards
  4. Recent decisions
  5. Best practices

Benefits

The panel will review these and other key questions:

  • What are the most common types of lost productivity claims?
  • What are some common methods of calculating damages for lost productivity?
  • How does the ASCE standard differ from other methods of calculating damages?
  • How can well-crafted construction contracts be used to assert or defend lost productivity claims?
  • What steps can owners and contractors take to minimize the likelihood of lost productivity litigation?

Faculty

Salamirad, Ali
Ali Salamirad

Attorney
SMTD Law

Mr. Salamirad concentrates his practice in the areas of construction and surety law. Many of the nation’s leading...  |  Read More

Zhao, Tong
Tong Zhao, PhD, PE, PSP, CCP

Senior Director
Delta Consulting Group

Dr. Zhao has broad experience in the engineering and construction of infrastructure, industrial, commercial, housing,...  |  Read More

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You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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