CBCA Decision Supports the Use of MCAA Loss of Labor Productivity Factors and the Measured Mile

In a decision published on May 5, 2017, the Civilian Board of Contract Appeals (CBCA) decided in favor of claimant Turner Construction Company regarding delays and loss of labor productivity experienced during the renovations to the National Museum of American History located in Washington, DC.  The contract required substantial structural, architectural, mechanical HVAC and electrical demolition and renovations to the museum.

During the course of construction, Turner and its subcontractors, that included the mechanical and plumbing subcontractor and the sheet metal subcontractor, both MCAA member-firms, encountered concealed conditions that critically delayed the schedule and caused a loss of labor productivity.  Turner filed a claim to the Smithsonian Institution and the parties agreed to litigate the case at the CBCA.

After hearing testimony over a period of several weeks, the CBCA issued its findings and decisions on April 14, 2017.  The Board issued several important findings:

1. Fact witnesses from Turner and Turner’s subcontractors presented compelling testimony regarding the pervasive concealed conditions that delayed the schedule and impacted labor productivity;
2. Turner presented a damages claim for which it was partially compensated;
3. None of Turner’s subcontractors presented independent CPM type delay analyses and the Board denied their extended performance costs;
4. The MCAA-member mechanical firm presented expert and fact witness testimony regarding loss of labor productivity based on the MCAA labor inefficiency Factors to the extent of a 42% impact, and the Board accepted the use of the MCAA Factors and all of the 42% loss of labor productivity; and
5. The  MCAA-member sheet metal firm presented expert and fact witness testimony regarding a classic “measured mile” loss of labor productivity comparison and was awarded 100% of its claimed amount.

This reported decision contains clear language supporting the use of the MCAA loss of labor productivity Factors and many citations to some of the authorities that are very important to MCAA member firms.

Details

Turner Construction Company, Appellant, v. Smithsonian Institution, Respondent. CBCA 2862, 4085, 4802, May 5, 2017.

• Messrs. Douglas Patin and Michael Koplan, Partners, Bradly Arant Boult Cummings, Counsel to the Claimant Turner Construction Company
• Mr. Paul Stynchcomb, CCM, PSP, CFCC, Principal, Vero Construction Consultants, Corp., testifying expert, loss of labor productivity representing the mechanical and sheet metal subcontractor claimants

Read the CBCA Opinion

Learn More About the Factors and the Measured Mile