Cumulative Impact Claims

Dr.  Amin Terouhid, PE, PMP

This article describes the nature and causes of cumulative impact claims and explores the underlying factors that give rise to cumulative impacts in construction projects.

Changes that are made to a contract scope of work and modifications of work conditions are among the key causes of conflict in construction projects. The net cumulative effect of changes is often greater than the sum of the effect of individual changes.  This condition may occur when a contractor realizes that the work has been affected by unforeseeable synergistic effects of multiple changes. This condition is typically the case where the collective cost, time, and productivity impacts of the changes have been impossible for the contractor to foresee while considering each of the effects individually. The collective impacts of these types of changes are typically identified as the cumulative impact. The Construction Industry Institute (CII) describes cumulative impact as follows:

When there are multiple changes on a project and they act in sequence or concurrently, there is a compounding effect – this is the most damaging consequence for a project and the most difficult to understand and manage. The net effect of the individual changes is much greater than a sum of the individual parts. [1]

A cumulative impact claim typically arises when the changes to a contractor’s scope of work are so numerous and overlapping that the contractor had no reason to know that it was not fully pricing each of the change orders at the time it negotiated the changes one at the time.

Cumulative impacts have unique characteristics that differentiate them from other types of impacts. In the case of cumulative impacts, multiple changes occur whose cumulative effect is greater than the sum of the effect of individual changes. It is important to note, however, that the multiple changes that have a cumulative impact on a scope of work should typically be labor-related changes. Therefore, in assessing cumulative impacts, the dollar value of the changes that have occurred is not as important as their intensity in terms of the number of labor hours required to execute the changed work. The number of labor hours needed to perform the change is critical in evaluating cumulative impacts because the ultimate objective of a cumulative impact claim is to demonstrate the extent of loss of labor productivity arisen from the synergistic effects of multiple changes. It is typically expected that the more labor-intensive the changes are, the greater their individual and cumulative impacts will turn out to be.

To quantify the damages resulted from the cumulative impact of multiple changes, a variety of methods can be used some of which include actual cost method, estimated cost method, total cost method, modified total cost method, should have spent method, measured mile, and jury verdict [2]. What is important, however, is to be able to demonstrate that the damages have resulted from the causes in reference. The success of a cumulative impact claim depends primarily on the ability to establish the cause and effect relationships between the causes in dispute and the resultant cumulative impact. No definitive standard has been established or accepted by courts or dispute boards to quantify the loss of productivity claims that contain a cumulative impact component; therefore, it is typically challenging to prove that damage calculations accurately represent the damages incurred as the sole result of cumulative impacts.

As part of a cause and effect analysis, a written narrative that describes the chain of events is essential. The narrative should properly establish the relationship between causes and resultant impacts. Preparing such a written description of the events, causes, and their effects is a minimum requirement for parties involved in a claim to demonstrate the cause-and-effect relationships between various events and resultant damages. Adequate supporting documents such as excerpts from the contract, change directives, meeting minutes, relevant correspondence, and filed reports can play an important role in substantiating the arguments and supporting the statements contained in the claim.

One of the methods that are often used to assess causal relationships between causes and effects in complex construction claims is the system dynamics method. Complex cases of claim involve multiple claim components that are typically intertwined and interrelated; and as such, assessing these cases may require advanced methods such as system dynamics. This method is an approach within the system thinking domain which considers complex systems as a holistic set of interrelated components to provide a better understanding of the system. Four important questions that are asked in the process of developing a system dynamics model include what is the issue at hand, what is flowing into and gets accumulated in the system representing the problem, where and how does it accumulate, and what factors cause it to flow.

Cumulative impacts should not typically be measured right after a change or during the course of the project while the impact of changes has not fully been materialized. Instead, cumulative impacts are typically measured towards the end of the project to ensure the full adverse, synergistic effect of multiple changes can properly be identified and qualified. Untimely evaluations may partly represent the adverse cumulative impacts that take shape over time.

References:

[1]. T. Hester, John A. Kuprenas. & T. C. Chang (1991). Construction Changes and Change Orders: Their Magnitude and Impact. CII Source Document 66.

[2]. Jones, R. M. (2001). Lost productivity: Claims for the cumulative impact of multiple change orders. Pub. Cont. LJ, 31, 1.

 

If your project has been affected by multiple change orders and they have adversely affected labor or equipment productivity on-site, or if you are interested to investigate the adverse effects of cumulative impacts on your project, Adroit will be able to assist in assessing these impacts. For more information, please contact us.

 

 

Types of Change in Projects

A variety of reasons may cause an increase or decrease in the amount of work from the scope of work specified in the original contract. These reasons result in either directed changes or constructive changes to the project’s scope of work. This article briefly describes each of these main categories of changes. It also outlines the potential implications of changes to a contract scope of work from the time, cost, and productivity perspectives.

In general, owners have the contractual right to make changes to the scope of work outlined in the original contract. Since owner changes impact contract scope of work and they potentially have time, cost, and productivity implications, it is important to identify various types of change in project scope of work and recognize potential effect of each type of change on project contracts. Examples of the most common changes include:

  • Changes in means and methods or material to be installed
  • Differing site conditions not envisioned in the original contract price
  • Modifications that change the planned work sequence as originally envisioned
  • Changes to the scope of work due to constructability issues or conflicts between systems
  • Changes in construction, prescriptive, proprietary, or performance specifications
  • Corrections made due to errors or omissions
  • Modifications as a result of the actions or inactions of third-parties

A directed change is issued when the owner specifically directs the contractor to make a change. This type of change may or may not affect the contract price. A directed change that influences only the schedule is an example of a directed change with no effect on the contract price. As another example, a directed change that impacts a project’s configuration, work sequence, or space requirements may adversely influence labor and equipment productivity on-site. A directed change with cost impact may reduce or add the contract price. Directed changes are typically not complicated because the owner specifically directs the contractor to make a change and as such, directed changes are easier to recognize.

Constructive changes, on the other hand, occur as a result of non-owner-directed events that implicitly necessitate modifying the scope of work. Unlike directed changes, the owner does not specifically direct the contractor to make a change in case of a constructive change. Instead, as a result of non-owner-directed events or actions or inactions of the owner, the contractor is forced to modify the scope set forth in the contract. Typically, constructive changes are not easy to recognize because they generally occur due to non-owner-directed events or circumstances. In addition, in case of a constructive change, the owner does not typically have explicit acknowledgment of a change to the original scope of work set forth in the contract. Examples of the most common types of constructive changes include:

  • Verbal communications that implicitly necessitate making changes
  • Deficient drawings or specifications
  • Ambiguity in architect-provided responses to information requests
  • Differing site conditions
  • Over-inspection

It is important to identify changes in a timely manner, especially in case of constructive changes whose effects are not explicit and readily recognizable. The reasons for each change need to properly be identified and documented in proper change management logs. Moreover, the effects and implications of each change need to properly be documented to ensure sufficient documentation and historical records are readily accessible to substantiate contractual entitlements. If your project has been affected by multiple change orders and they have adversely affected labor or equipment productivity on-site, or if you are interested to investigate the extent of time and cost impacts due to change orders, Adroit will be able to assist in assessing these impacts. For more information, please contact us.

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