EOT Claim Review Checklist

Construction contract claims and disputes will invariably involve complex issues in unique scenarios, where legal precedents and straightforward interpretation of the contract provisions do not always provide an instant resolution. In this article, we will highlight the EOT claim review checklist for claim issues.

Valid reasons for an extension of time claim

Each contract will have specific terms that establish valid reasons for an EOT claim. Examine and refer to your contract for allowable claim causes.

1.Weather delays

An EOT claim will cover the majority of significant weather events. However, if an event could have been predicted, such as during hurricane season, contractors may be required to take precautions to avoid a delay before filing a claim.

2.Acts of God and Force majeure

An EOT claim may cover any natural event (or “Act of God”) that causes a delay, such as the effects of an earthquake.

Force majeure occurs when “superior external forces such as a storm or a natural disaster affect a project participant’s ability to successfully complete their responsibilities on a construction project in full or on time.”

3.Pandemics

In 2020 and early 2021, many construction sites were forced to deal with shutdowns and stay-at-home orders. The pandemic was interpreted as a force majeure in most cases, and EOT claims covered these delays.

4.Terrorist attacks

If a terrorist attack disrupts the job site or access to the job site, you may be able to file an EOT claim to compensate for the delay.

5.Delays caused by the project owner

Any delay caused directly by the project owner is covered by the EOT claim. “Because, by law, a principal cannot benefit from its wrongdoing.”

“Without a doubt, it would be an unjust result if a principal could prevent a contractor from completing work and there was no mechanism in the contract to adjust time!”

EOT claim review checklist (Identify and Analyze Documentation)

  • One of the EOT claim review checklists is to determine whether the project documentation is well-organized and whether a document database is necessary. A document database with OCR text recognition, keyword, issue, author, recipient, date, and other search fields may be required if the documentation is not well organized or too large to review efficiently.
  • Another point of the EOT Claim review checklist is to determine the contract’s applicable law. For any contractual issues that will govern the analysis and dispute resolution based on the governing law, seek legal guidance.
  • Obtain and review contract terms and conditions, change management procedures, cost and schedule control procedures, and other contract documents that may impact the claims analysis.
  • Obtain and review the owner’s Request for Proposal, the contractor’s Proposal, and any other documents related to the development and understanding of the contract terms and scope of work.
  • Determine which daily reports, diaries, correspondence, emails, and other contemporaneous communications may contain information about the claim issues.
  • Interview project personnel to better understand the major issues that have arisen and the relevant documentation related to those issues.
  • Evaluate any documents containing the contractor’s claim(s) and the owner’s counterclaims. Identify and describe the nature of the claims and problems that have arisen or are alleged to have arisen.
  • Create issue files containing information about each problem and claim issue.
  • Create a timeline of events on each claim and problem.
  • Determine whether the contractor’s change orders are approved, disputed, or pending. Determine the existence of notice letters relating to change orders or other alleged impacting events.
  • Determine which project work areas or parts of the facility are affected by the claims and problems.
  • Determine whether the contractor’s change orders are approved, disputed, or pending. Determine the existence of notice letters relating to change orders or other alleged impacting events.
  • Obtain and review the RFI log and RFI files, if they were prepared during the project, as well as logs and documents related to other project mechanisms used to record potential impacts in real-time, such as Design Change Notices (DCNs).
  • One more EOT claim review checklist is to Identify any actions or problems caused by the contractor or its subcontractors, vendors, and suppliers that may have contributed to the contractor’s delays, man-hour overruns, and cost overruns.
  • Identify any owner-supplied information, equipment, materials, or other items that were delivered late or were defective, causing delays.
  • One more EOT claim review checklist is to Identify any design or specification issues (errors, ambiguities, etc.) that may have contributed to or caused the claims and problems.
  • If weather-related delays are being claimed, obtain all weather-related reports from the project record and the nearest weather station to the project site.
  • Determine whether the construction means and methods have changed as a result of the claims and problems.

Read more about As-Planned Vs As-Built Delay Analysis

EOT Claim review checklist (Related To Schedule Delay)

  • Get all of the native electronic files for the baseline schedule, any revised schedules, and any periodic schedule updates.
  • Determine whether the schedules have logic errors or missing logic or if an unusually large number of constraints governs them.
  • One more EOT claim review checklist is to determine whether or not the contractor’s as-planned schedule (sequences, durations, and scope) was reasonable. Confirm that the original contract scope of work was included in the as-planned schedule.
  • Identify specific time extension requests sent to the owner, as well as actual time extensions granted by the owner due to delays caused by approved change orders and time extensions associated with pending change orders or other problems, such as force majeure events suspensions, and so on.
  • Identify any attempts to expedite work as a result of problems encountered. Determine whether the contractor was ordered to accelerate or whether constructive acceleration occurred.
  • Determine whether the contractor intended to complete the project work ahead of schedule. Determine how this early completion date was established and communicated to the owner.
  • Check to see if the start and end dates for the scheduled activities are correct.
  • One more EOT claim review checklist is to determine the critical milestones and periods that must be examined. Liquidated damages are calculated in some projects based on delays to interim project milestones rather than just project completion. Furthermore, a contractor’s time-related costs may vary greatly throughout a project, for example, being high during the construction phase but much lower during the engineering phase.
  • Determine whether the schedule analysis should include a delayed assessment during specific periods (i.e., windows), such as between monthly schedule updates.
  • Correct the schedules (logic, dates, durations, etc.) if appropriate and necessary before performing a retrospective delay analysis, depending on the schedule delay analysis method(s) used.
  • To quantify start and duration delays to scheduled activities, prepare activity duration and relationship variance tables for certain schedule analysis methodologies. These variance tables may need to be calculated for each of the periods under consideration.
  • Delay the activities identified in the duration and relationship variance tables. Determine responsibility for delays using the Claim Issue analyses that have already been completed, and seek advice from legal counsel and technical experts as needed.
  • Analyze any significant delays identified in the variance tables that are not explained by the Claim Issue analyses further.
  • Determine the planned and actual start dates, milestone and completion dates, and activity durations for problems-related activities, as well as activities on critical and near-critical paths.
  • Determine whether the as-planned and as-built critical paths differ for each analysis period.
  • Identify specific critical and near-critical activities that were impacted or delayed due to the issues encountered.
  • Determine whether the work affected by the problems was: I on the as-planned critical path when the problem occurred, or (ii) on the status critical path.
  • Determine whether any other delays occurred before or after the problems that could have been related to or caused by the problems, i.e., dependent concurrent delays.
  • Determine any independent concurrent delays that are unique to the time frame of each problem.
  • Determine whether the work was completed out of order in comparison to the planned schedule.
  • Determine whether there are any compensable delays due to varying site conditions, suspensions, work being delayed into bad weather periods, or other claim issues for which time extensions were not requested and granted.
  • Conduct an appropriate retrospective schedule analysis, such as a Time Impact or Update Impact Analysis, to determine whether the contractor is entitled to a time extension.
  • To determine whether the contractor is entitled to compensable delay time and costs, conduct an appropriate retrospective schedule analysis that considers concurrent delays, such as an As-Built But-For Analysis.
  • Use an appropriate retrospective schedule analysis to determine whether or not the contractor accelerated the work, and use the results of this analysis to allocate acceleration costs that have not already been paid through change orders.
  • Determine whether the owner is entitled to liquidated or actual delay damages using an appropriate retrospective schedule analysis.

Read The Ultimate Guide To EOT Claims

EOT Claim Review Checklist (Related To Quantities, Man-Hours, And Costs)

  • Obtain and evaluate the contractor’s bid and bid estimate calculations and assumptions, including productivity, material quantities, labour rates, contingency, field, home office overhead amounts, and profit.
  • Determine whether the bid was reasonable or if there was an underbid or bid error.
  • Obtain and review the contractor’s budget and revised budget information, including quantity, man-hour, and cost data, as well as any differences from the bid estimate.
  • Obtain and evaluate the actual quantity, man-hour, and cost data from the contractor.
  • Determine the extent to which the contractor coded its extra man-hours and costs to discrete change-related cost codes, i.e., did the contractor segregate its extra work, and its base scope work?
  • Obtain and assess the contractor’s Work Breakdown Structure (WBS) coding and cost account structure. Examine the level of detail to see if (disruption) claims can be evaluated by discipline, work area, timeframe, and so on. Ascertain that the same coding structure was used for both budgeted and actual man-hours and costs.
  • Obtain and evaluate the project’s approved, pending, and disputed change orders. Determine the material quantities, man-hours, and costs associated with the changes to the greatest extent possible (which may be difficult regarding negotiated, lump-sum change orders). Determine whether field and home office overhead costs were included in the approved change orders.
  • Prepare a man-hour variance analysis, comparing budgeted and actual man-hours at the most detailed level of information available, taking any approved or pending change orders into account.
  • Prepare a cost variance analysis, comparing budgeted and actual costs at the most detailed level of information available, taking any approved or pending change orders into account.
  • Prepare a claim for disruption or loss of productivity, which is often the most significant component of a contractor’s claim. To the greatest extent possible, compare the planned working conditions with the less-productive actual working conditions for discrete and measurable scopes of work, explain why the conditions changed, and quantify the resulting loss of productivity.
  • Perform a measured mile analysis to determine the loss of productivity man-hours that may be associated with the alleged impacts if appropriate man-hour and installed quantity data are available throughout the project and if there are relatively un-impacted periods of work.
  • Determine whether the contractor incurred additional costs for acceleration and whether the owner incurred any acceleration costs.
  • Determine whether the change orders issued due to the alleged problems included any impact or loss of productivity costs.
  • Using the man-hour and cost variance analysis, identify any escalation costs in labour, materials, or installed equipment compared to the bid estimate for labour, materials, or installed equipment due to problems.
  • Determine the reasonable value of any claims for lost profits.

Closing Thought

This article has highlighted the fundamental information and tasks involved in conducting a claims analysis, whether one is preparing a claim or defending against one. On the other hand, the scope, tasks, and level of detail of the analysis are determined by the settlement objectives (change order negotiation, negotiated settlement of a formal claim, mediation, or expert report for arbitration or litigation), as well as the monetary risk involved, i.e., the cost of claims analysis and preparation/defense must be cost-effective in comparison to the claim value.

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