Case Law and Variations in Cumulative Impact Productivity Claims

Abstract

Proving and quantifying lost productivity due to cumulative impacts of multiple changes are difficult tasks. This paper presents the most acceptable methods from case law and demonstrates their applications for analyzing the loss of productivity. These methods include earned value analysis, measured mile analysis, and combinations of these two. They are either well established or drawn from recent court and board decisions. A case study is used to illustrate and compare the use of these methods. These methods result in considerably different loss of productivity values though the actual amount (i.e., inefficiency in labor hours) is unique for a particular case and though these methods are often thought to be similar or even the same. How a measured mile analysis and its variants are employed affects the amount of lost productivity estimated. The variants can avoid some drawbacks of measured mile and earned value studies. Nevertheless, which method is more accurate and reliable is difficult to provide for a particular claim. Practitioners should choose between them based on the availability of project records and the nature of changes and cumulative impacts. Practitioners may also employ two or more methods to perform a “sensitivity analysis” of the chosen methods and persuade the other party and/or the jury that their estimate of lost productivity is sufficiently certain.