Skip to main content

The following is an excerpt from an Interface Consulting work product issued for use in litigation, arbitration, or mediation (dispute resolution). Names, dates, and other information has been modified for client confidentiality purposes.

 

J.B. Smith North Central v. The Lofts of Minnesota Litigation

I. Introduction

The Lofts of Minnesota, Inc. (LOM), entered into a contract with J.B. Smith North Central, Inc. (Smith), to construct a residential condominium project in Minnesota, known as The Lofts of Minnesota (the Project). LOM and Smith executed a contract agreement entitled “AIA Document A111-1997 Edition, Standard Form of Agreement Between Owner and Contractor” (the Contract)....

Smith’s work under the Contract generally consisted of pre-construction and construction services relative to a new 5-story wood-framed condominium building with masonry, glass, and composite roof exterior, as well as a 1-story below grade concrete parking structure, site paving, landscaping, irrigation, and a concrete water feature. The individual condominium units that made up this project were anticipated to be customized by each unit buyer, and Smith’s work also included management and coordination of a unit buyer upgrade program.

At the time the Contract was executed, the Project plans and specifications were incomplete. This was common knowledge between LOM and Smith. In response to this fact, the Contract required Smith to use its professional judgment and interpretation relative to the plans and specifications available at the time of the Contract to anticipate the scope of work which was incomplete....

…LOM’s counsel, David &Matthews, PA, retained the services of Interface Consulting International, Inc. (Interface Consulting), to perform a schedule impact analysis relative to this matter. Interface Consulting is a consulting firm specializing in, among other services, schedule and delay analysis on construction projects. In the preparation of this report, we have conducted interviews with various project personnel and reviewed documents related to the Project. Our team was given full access to the project document database to facilitate this review and investigation....

 

II. Analysis Qualifications

II.A. Analysis Qualifications

We performed a contemporaneous schedule analysis to quantify the events which impacted the critical path of the project and identify the associated causes....

This analysis allows the analyst to understand what issues were driving the critical path of the project at discrete intervals in time and utilizes the updated schedule network in effect just prior to a delay event as a basis for quantifying the associated impacts. The effect of the delay is thus measured by the most current plan for completion rather than the contractor’s original plan....

The contemporaneous schedule analysis relies on the contemporaneous schedules created during the project to measure delays and/or mitigations, thus minimizing fundamental disagreements relative to the source data. It also considers....

II.B. Analysis Methodology

The methodology utilized for this analysis involves identifying time impacts between contemporaneous schedule updates by chronologically tracking progress along the critical and near-critical paths....

…The following provides definitions utilized for various key terms within the remainder of this report:

  • The Critical Path is defined as the longest connected chain of activities in the critical path method (CPM) network. Generally, a critical path is expected to emerge at the point of project commencement, and then flow continuously through the schedule to the final activity in the schedule, such as a “project completion”activity.

  • The term Delay is considered neutral in terms of liability. Delay simply means that an activity was prevented from starting or finishing as contemplated in the schedule or that the duration of the activity was extended compared to its planned duration.

  • A Nonexcusable Delay is a delay event which is caused by events or circumstances within the control of Smith. Thus, nonexcusable delays are Smith delays.

  • An ExcusableDelay is a delay event which is caused by events or circumstances beyond the control of Smith.

  • A delay is Compensable if it is caused by events solely within the control of LOM or its agents. A compensable delay would justify additional compensation for the costs of delay and additional time for contract performance, assuming the claim provisions of the contract have been followed.

  • Concurrent Delays are independent delays which impact the project completion date at the same approximate timeframe.

II.C. Project Schedules

…Interface Consulting was provided with electronic copies of Smith’s project schedules in native, SureTrak®, format. To facilitate our analysis, we converted the schedule update files provided by Smith into P3 format, and....

 

III. Executive Summary

II.A. Period 1: July 15, 2004 – December 31, 2004

In the period from project commencement on or about July 15, 2004, through Smith’s schedule update dated December 31, 2004, 70 calendar days of critical path delay occurred, which pushed the forecasted completion date from....

…It is our opinion that 53 calendar days of critical path delay during this period are excusable to Smith, and 15 calendar days of critical path delay are compensable to Smith. The remaining 17 calendar days of critical path delay are nonexcusable Smith delays, as shown.


Period 1 Critical Path Delays

 

III.B. Period 2: January 1, 2005 – January 31, 2005

In the period from January 1, 2005, through January 31, 2005, 24 calendar days of critical path delay occurred, which pushed the project completion date to....The root cause of this critical path delay was Smith’s untimely MEP coordination, specifically related to plumbing design requirements....

Also during this period, Smith’s schedules indicate that two (2) concurrent delays occurred as a result of the delayed preparation of submittals for wood trusses and wood windows, which would....

…Thus, 24 calendar days of critical path delay are excusable, but not compensable to Smith.


Period 2 Critical Path Delays

 

III.C. Period 3: February 1, 2005 – June 1, 2005

…This critical path delay related to framing activities on the first, second, third, and fourth floors, which were hindered by manpower and workmanship issues, crane failures, and submittal delays. Each of these issues was within Smith’s control.

Also....

III.D. Period 4: June 2, 2005 – August 9, 2005

III.E. Period 5: August 10, 2005 – October 1, 2005

III.F. Period 6: October 2, 2005 – November 1, 2005

III.G. Period 7: November 2, 2005 – December 1, 2005

III.H. Period 8: December 2, 2005 – January 11, 2006

III.I. Period 9: January 12, 2006 – February 6, 2006

III.J. Period 10: February 7, 2006 – March 24, 2006

III.K. Period 11: March 25, 2006 – April 24, 2006

III.L. Period 12: April 25, 2006 – May 15, 2006

III.M. Period 13: May 16, 2006 – June 12, 2006

III.N. Period 14: June 13, 2006 –January 31, 2007

III.O. Summary of Excusable and Compensable Delays

…The following illustration provides a summary of the critical path delays which occurred during each period.

 

Summary of Excusable and Compensable Delays

 

IV. Original Plan

The baseline schedule included in Exhibit B of the Contract reflected the logic, sequence, and duration for each portion of Smith’s work through project completion. The baseline schedule, as prepared and submitted by Smith, maintained zero (0) float along the critical path based on....

 

V. Period 1: July 15, 2004 December 31, 2004

V.A. Progress through Period 1

V.A.1. Slab-on-Grade and Post-Tensioned Slabs

…Smith’s progress relative to the plaza area slab-on-grade did not proceed as planned, as its earthwork subcontractor….

The primary cause for the delayed completion of this critical path activity was poor progress and/or errors by Smith’s subcontractors....

V.A.2. Building Permit

...

V.A.3. Additional Time for Hand Framing

...

V.B. Critical Path at the Conclusion of Period 1

The controlling critical path at the conclusion of Period 1 began with the issuance of a building permit on….


Detailed Critical Path at the Conclusion of Period 1

V.C. Opinions on Causation of Delay

…There were three (3) primary issues which delayed the critical path during this period….

 

VI. Period 2: January 1, 2005 January 31, 2005

VI.A. Progress through Period 2

VI.A.1. Release of Architectural Construction Documents

...

VI.B. Critical Path at the Conclusion of Period 2

...

VI.C. Opinions on Causation of Delay

…The root cause of this critical path delay was Smith’s untimely MEP coordination, specifically related to plumbing design requirements….

 

VII. Period 3: February 1, 2005 – June 1, 2005

VII.A. Progress through Period 3

VII.A.1. Framing Activities

...

VII.B. Critical Path at the Conclusion of Period 3

VII.C. Opinions on Causation of Delay

 

VIII. Period 4: June 2, 2005 – August 9, 2005

VIII.A. Progress through Period 4

VIII.A.1. MEP Rough-In

VIII.B. Critical Path at the Conclusion of Period 4

VIII.C. Opinions on Causation of Delay

 

IX. Period 5: August 10, 2005 – October 1, 2005

IX.A. Progress through Period 5

IX.A.1. MEP Rough-In

IX.B. Critical Path at the Conclusion of Period 5

IX.C. Opinions on Causation of Delay

 

X. Period 6: October 2, 2005 – November 1, 2005

X.A. Progress through Period 6

X.A.1. MEP Rough-In

X.A.2. Moisture/Mold Remediation

…The root cause of the moisture/mold issue was Smith’s failure to protect the work and mitigate impacts of exposure to elements by installing temporary enclosures and/or drying the building after exposure to moisture. As illustrated in the following photographs, Smith failed to protect the Project against rainwater and allowed the project to remain in an excessively wet condition for extended periods of time.

 

Smith’s Failure to Protect the Work

 

X.B. Critical Path at the Conclusion of Period 6

X.C. Opinions on Causation of Delay

 

XI. Period 7: November 2, 2005 – December 1, 2005

XI.A. Progress through Period 7

XI.A.1. MEP Rough-In

XI.B.2. Moisture/Mold Remediation

XI.B. Critical Path at the Conclusion of Period 7

XI.C. Opinions on Causation of Delay

….

 

XII. Period 8: December 2, 2005 – January 11, 2006

XII.A. Progress through Period 8

XII.A.1. MEP Rough-In

XII.A.2. Moisture/Mold Remediation

XII.A.3. Buyer Upgrade Change Order 21

XII.B. Critical Path at the Conclusion of Period 8

XII.C. Opinions on Causation of Delay

 

XIII. Period 9: January 12, 2006 – February 6, 2006

XIII.A. Progress through Period 9

XIII.A.1. MEP Rough-In

XIII.A.2. Moisture/Mold Remediation

XIII.A.3. Buyer Upgrade Change Order 21

XIII.B. Critical Path at the Conclusion of Period 9

XIII.C. Opinions on Causation of Delay

 

XIV. Period 10: February 7, 2006 – March 24, 2006

XIV.A. Progress through Period 10

XIV.A.1. MEP Rough-In

XIV.A.2. Drywall Installation

XIV.B. Critical Path at the Conclusion of Period 10

XIV.C. Opinions on Causation of Delay

 

XV. Period 11: March 25, 2006 – April 24, 2006

XV.A. Progress through Period 11

XV.A.1. Ductwork, Soffit, and Drywall Installation

XV.B. Critical Path at the Conclusion of Period 11

XV.C. Opinions on Causation of Delay

 

XVI. Period 12: April 25, 2006 – May 15, 2006

XVI.A. Progress through Period 12

XVI.A.1. Ductwork, Soffit, and Drywall Installation

XVI.B. Critical Path at the Conclusion of Period 12

XVI.C. Opinions on Causation of Delay

….

 

XVII. Period 13: May 16, 2006 – June 12, 2006

XVII.A. Progress through Period 13

XVII.A.1. Drywall Installation and Prime Painting

XVII.B. Critical Path at the Conclusion of Period 13

XVII.C. Opinions on Causation of Delay

 

XVIII. Period 14: June 13, 2006 – January 31, 2007

XVIII.A. Progress through Period 14

XVIII.A.1. Unit Finishes, Punchlist, and Buyer Upgrades

XVIII.B. Critical Path at the Conclusion of Period 14

XVIII.C. Opinions on Causation of Delay

 

XIX. Summary of Excusable and Compensable Delays

As a result of the events and circumstances which occurred throughout the Project duration, 457 calendar days of critical path delay occurred. We have determined that 359 calendar days of critical path delay were nonexcusable Smith delays, 98 calendar days of critical path delay were excusable delays and 15 calendar days of critical path delay are compensable delays to Smith. It should be noted that…

The following illustration provides a summary of the critical path delays which occurred during each period.

 

Period Conclusion Chart

 

XX. Signature

...

 

XXI. Appendices

...