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Calculating Lost Labor Productivity: Is There a

Better Way?
By Daniel E. Toomey; Joshua S. Marks; Dr. Tong Zhao, P.E.; and J. Mark Dungan

controversial because of the widespread skepticism of

those owners (or even general contractors) against whom
such claims are asserted, as well as triers-of-fact, who
may come to view the methodologies employed to cal-
culate both the extent and value of the asserted damages
as questionable, speculative, and illusory.
With Daubert4 fully entrenched in federal jurispru-
dence, and many states following suit in imposing on the
trier-of-fact the role of gatekeeper, those parties seek-
ing to pursue loss-of-productivity claims need to acquaint
themselves with the requisites of a proper evidentiary
basis as well as determine the best choice of an appro-
Daniel E. Toomey Joshua S. Marks priate modality to calculate a loss-of-labor productivity
claim in order to avoid the Daubert shoals. In doing
so, they need to undertake a reality check of their claim
during the process of its development.5
In this article, we will discuss how lost labor productiv-
ity claims are developed; the interplay of Daubert in the
pursuit of, and defense against, such claims; and recent
federal and state case law addressing loss productivity.
We will then endeavor to discuss and analyze the current
professional literature regarding techniques to improve
the accuracy of determining the validity and value of
such claims.

Inherent Difficulties in Ascertaining Lost Labor

Dr. Tong Zhao, P.E. J. Mark Dungan Productivity
One of the more significant elements of damages in a Experts involved in the science of proving lost pro-
construction dispute, and one of the most controversial, ductivity damages recognize the inherent difficulties in
is the calculation of lost labor productivity or, as it is such analyses:
also termed, labor inefficiencies. These damages are sig-
nificant because, if proven, the monetary value of such a This claim effort can be met with difficulty because
claim can be considerable. This is not surprising because proving lost productivity is one of the most conten-
[l]abor costs generally make up 30 to 50% of overall tious and controversial areas in construction claims
project costs.1 Indeed, [w]hen projects lose money, the and disputes, especially in international projects.
primary reason is often unanticipated labor costs resulting This can be readily understood because produc-
from less than anticipated productivity.2 One commen- tivity decline can occur in many circumstances on
tator notes that [d]isruption of labor productivity is construction projects, which may be attributed to
the greatest risk to a construction project and contrac- the owner, the contractors estimate, the ability to
tors are increasingly careful to account for a multitude execute as estimated, or to a third party.6
of potential variables when preparing their pre-contract
labor estimates.3 As anyone knows who has been through the experience
The calculation of lost labor productivity is of either prosecuting or defending against a loss-of-pro-
ductivity claim, this can be a very expensive undertaking.
Mr. Toomey is a partner and Mr. Marks is an associate It normally involves retaining an experienced construction
in the Construction Group of Duane Morris, LLP. Dr. productivity expert, preferably one with direct experience in
Zhao is a director and Mr. Dungan is the executive vice the type of construction involved and trades whose produc-
president of Delta Consulting Group, Inc. tivity is claimed to have been disrupted; depending upon

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 1
the available project records, the expert may need to spend The difficulty for the expert (and counsel) is how to
many hours analyzing the claimants original productivity untie this Gordian knot of facts and activities in such a
on the project at hand and, potentially, may be required to way as to create a cogent and compelling narrative that
examine records from other similar projects for the purpose avoids the inevitable Daubert attack and persuades the
of developing reasonable proof of the loss of productivity trier-of-fact that the claim not only passes legal muster
and causation as a result of impacts for which the con- but also, more importantly, is meritorious and worthy of
tractor is not responsible. Correspondingly, in defending significant compensationno easy task even in the best
against such a claim, the opponent often must incur com- of circumstances.
parable costs in expert fees to not only refute such claims, As one commentator describes the difficulties in prov-
but, very possibly, to persuade the trier-of-fact that the ing lost productivity/labor inefficiency:
opponents expert is not qualified or his/her analysis fails
to meet the Daubert threshold for admissibility. The possible causes of loss of labor efficiency are
legion; among other causes, disruption can be the
result of more difficult or crowded working condi-
tions, extended overtime or second shift work (the
worker fatigue factor), working out of sequence or
The facility to prove such with frequent interruptions, access problems, and
claims is directly affected by working in less favorable weather or temperature
conditions. All of these can be compensable when
the quantity and quality of they are the result of disrupting actions or inactions
documentation on a particular project. of the government [or private owner, or general con-
tractor] that entitle the contractor to an equitable
However, there are just as many possible non-
compensable causes of lower-than-anticipated labor
That notwithstanding, the amounts of losses due to efficiency, including such factors as high labor turn-
labor inefficienciesnot the fault of the contractorin over, poor supervision or planning, inadequate
a given project may be so large as to justify the expen- coordination of subcontractors, or simply an overly
diture of time and money to fully develop such a claim. optimistic estimate. Additionally, all of the previ-
Moreover, if a claimant expects to be able to negotiate or ously mentioned causes of inefficiency that may result
to mediate a sizable settlement, he/she may need a well- from compensable actions can just as easily be the
developed loss-of-productivity claim as leverage. result of noncompensable root causes. This overlap,
No one can seriously question that there are many cir- and the possibility that an observed manifestation
cumstances, not caused by a contractor, or not otherwise of inefficiency may be due to multiple root causes,
reimbursable, that may cause a loss of labor productiv- are two reasons why proving compensable loss of
ity, such as: (1) errors and omissions in design-bid-build efficiency is particularly challenging.8
contracts, (2) an owner refusing to recognize legitimate Challenging, indeed!
extensions of time that could result in unwarranted accel- This same commentator notes:
erations of work, (3) unforeseen changed conditions
disrupting the planned work efficiencies, or (4) a combi- The boards [of Contract Appeals] have acknowl-
nation of the above. Moreover, depending on the size and edged that determining the amount of compensation
complexity of the project, the extent of the disruption(s), for disruption/labor inefficiency with exactitude is
and the amount of labor involved, such claims can cause essentially impossible, and that some form of
damages in the millions of dollars. As has been explained reliable methodology to arrive at an inexact approxi-
by those involved, the process of preparing such a claim mation must be utilized, typically based on expert
is laborious and time-consuming; this is because: analysis and testimony. The reason is that loss of
productivity cannot generally be directly observed,
[A] construction project is a very dynamic process measured, or recorded as it occurs but, instead, can
where thousands of custom crafted pieces that be seen only in the reduced units of completed work
make up the project are assembled by trade work- installed by the workforce over a period of time.9
ers in an environment often exposed to changing
weather conditions. Such an undertaking is subject Daubert and Its Impact on Proving Lost Productivity
to numerous factors that can affect productivity. The trier-of-fact as gatekeeper in connection with the
Therefore, the challenge of quantifying the loss of preliminary review and acceptance/rejection of expert tes-
productivity caused by a specific factor or factors, timony is now clearly applicable to construction experts.
which is not within the contractors control, can be In fact, the Daubert motion is, perhaps, the greatest threat
quite daunting.7 to a proponents advancement of a loss-of-productivity

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 2
claim and, correspondingly, the greatest weapon in the with Mr. Nicholls (tr. 4/12427) and did not conduct
arsenal of an opponent to such a claim. Numerous fed- any other independent investigation of possible inef-
eral courts and boards of contract appeals have applied ficiencies caused by Stewart (tr. 4/13445); he was
Daubert in construction cases since the Supreme Court not interested in documents associated with Stew-
issued its ruling 22 years ago. There have not been very arts subcontractors (tr. 4/5253); he thought it was
many instances, however, where Daubert has been spe- important to review the daily reports prepared by
cifically leveled against tendered expert testimony in the Stewart and not those prepared by Hensel Phelps and
context of supporting loss-of-productivity claims, though the government (tr. 4/1011, 34, 49), but nevertheless
there is no reason to expect that such claims will escape reviewed only about 35 percent of Stewarts reports,
the ravages of Daubert.10 relying instead upon the summary of Stewarts reports
This should not be surprising, principally because, prepared by a law clerk to appellants counsel (tr.
almost invariably, proof of loss of productivity is particu- 4/3537); he did not review documents in the Hensel
larly dependent on expert witness opinions that are often Phelps files (tr. 4/2122, 28990); and he was not
based on a rather subjective and selective analysis of the interested in correspondence between Hensel Phelps
documentation supporting labor inefficiencies and often and the government or between Hensel Phelps and
the difficulty in ascertaining the necessary causal connec- its other subcontractors (tr. 4/3133, 6768); he was
tion between the impact of disruptions and their adverse not aware of the Field Trouble Reports and did not
effect on productivity. This expert endeavor requires both think the Non-Compliance Notices issued to Stewart
the identification of and accounting for the noncompensa- were important to his analysis (tr. 4/3841).
ble causes of disruption as well as the ability to quantify Further, Mr. Lucas only reviewed a list of the
the compensable damages. Moreover, the facility to prove RFIs, instead of the RFIs themselves, and did not
such claims is directly affected by the quantity and qual- know the content of all the RFIs (ex. A-3.1; tr.
ity of documentation on a particular project. Because 3/236, 4/4145, 7475). He somehow concluded
this varies widely, it is to be expected, as we discuss fur- that 185 of the RFIs related to Stewarts work and
ther below, that such damages claims result in Daubert assumed that many of the rest of them indirectly
challenges. affected Stewarts labor productivity, although
One relatively recent case from the Armed Services he could not identify how many (ex. A-330; tr.
Board of Contract Appeals (ASBCA) is instructive.11 In 4/10002).12
that case, the prime contractor, Hensel Phelps Construc-
tion Company (Hensel Phelps), submitted a pass-through Clearly, the board was not happy with the lack of thor-
claim of its subcontractor, Steward Mechanical Enter- oughness of the experts review of the documentation
prises, Inc. (SMEI), seeking to recover almost a million available. This failure, as in Hensel Phelps, to conduct a
dollars in lost labor productivity damages, caused, so it thorough investigation clearly leaves the claimant at a sub-
claimed, by design deficiencies. From the language of stantial risk of a successful Daubert challenge, as occurred
the A.S.B.C.A.s opinion, we can glean what might be in Hensel Phelps, wherein the board stated:
required of an expert attempting to develop a factual basis
for such a claim, reciting the perceived deficiencies in Contrary to appellants view, the number of RFIs
the experts preparation of his factual analysis. Using the and changes alone is insufficient to establish the
governments cross-examination of the expert as a basis governments liability for a contractors inefficiency.
for its criticism of the experts efforts, the board gives the Santa Fe Engineers, Inc., A.S.B.C.A. Nos. 24578,
reader a rather clear idea of what it believed needed to 25838, 28687, 94-2 B.C.A. 26,872 at 133,754.
be done but was not: Accordingly, we decline to adopt the opinion of
appellants expert witness about the labor ineffi-
The governments cross-examination of Mr. Lucas ciency Stewart experienced because it relies almost
established the following facts: Mr. Lucas did not entirely upon the number of RFIs and changes issued
think it was necessary to talk to anyone from Hensel to Stewart during contract performance.13
Phelps (tr. 4/89); he did not think it was impor-
tant to talk to Mr. King (Stewarts project manager The takeaway from this decision is that there are no short-
from September 1990 to May 1991) and did not cuts in reviewing available documentation and he/she who
do so (tr. 4/6970); he relied upon his conversa- takes such shortcuts does so at his/her own peril and that
tions with Mr. Nicholls (who replaced Mr. King of his/her client.
and remained Stewarts project manager through
contract completion) about the change orders and The Daubert Motion: Its Coming Whether You Like It
modifications instead of reviewing the relevant doc- or Not
umentation himself (tr. 4/725); he concluded that Not only are there no shortcuts when preparing a claim of
Stewart was not responsible for any major delays or damages for lost productivity, based on a reading of some
inefficiencies based primarily upon his discussions recent Daubert cases, when someone makes a significant

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 3
claim for damages due to lost labor productivity, it is vir- other federal trial in the past. JR 453. He has never
tually inevitable that a Daubert challenge will occur, often failed to qualify as an expert. Id.
both as to (a) the qualifications of the expert and (b) the Based upon Dr. Nairns curriculum vitae, JR
findings of that expert. 44253, the court concludes that defendant has
made a showing that Dr. Nairn is an expert in
coastal engineering sufficient to defeat a motion in
Ask yourself: How many experts have you proffered
For some, the extent of an with the kind of qualifications of Dr. Nairn? The court
seems to have been the master of understatement in con-
experts evident qualifications poses cluding that, based on this rather extraordinary resume,
no deterrent to opposing counsels the governments showing was merely sufficient to avoid
a motion in limine calling for the experts disqualification.
effort to disqualify the expert. As such, if the qualifications of the expert in the Banks case
are going to be challenged, it is a safe bet that your experts
qualifications stand a good chance of facing a challenge.
Even where a lost labor productivity experts cre-
dentials are unchallenged, it is even more likely that the
Indeed, for some, the extent of an experts evident qual- experts methodology, analysis, and conclusions will be
ifications poses no deterrent to opposing counsels effort challenged under Daubert. This is because, as noted ear-
to disqualify the expert. Although it does not involve loss- lier, the nature of such opinions requires that the expert
of-productivity damages, the relatively recent case of John determine the effect of myriad factors affecting produc-
H. Banks v. United States14 demonstrates the lengths to tivity, thereby giving rise to almost as many opportunities
which some counsel will go to object to the qualifications to challenge. Because loss-of-productivity claims hinge on
of a proffered expert. Banks involved claims by prop- the acceptability of expert testimony, the attorney needs
erty owners on Lake Michigan who were contending that to view these claims through the prism of a Daubert lens
the US Army Corps of Engineers construction-mainte- in the preparation of both the expert and the claim.
nance of certain jetties caused erosion to the claimants The Banks case is also instructive as to how courts
shorelines, amounting to a compensable taking of their and boards must apply the Daubert factors before quali-
property rights. Although there was a significant and fying the expert and then accepting that experts opinion
seemingly legitimate dispute between the parties regard- as evidence:
ing whether the expert had fully provided to opposing
counsel a proper listing of what the expert had reviewed, In Daubert v. Merrell Dow Pharmaceuticals Inc., 509
counsel also argued that the expert was not qualified to U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993),
give his opinion. Here is the courts recitation of that the Supreme Court presented a two-prong test for
experts qualifications: the admissibility of expert evidence. The first prong
assesses the reliability of the underlying principles
With regard to education, Dr. Nairn holds three and methodologies. Daubert, 509 U.S. at 59293.
academic degrees, including a doctorate in Coastal Factors suggested by the Court to consider when
Processes and Engineering from the Imperial making this assessment include: whether methodol-
College of Science, Technology and Medicine in ogies can be and have been tested; whether theories
London, England. JR 442. With regard to experi- have been peer-reviewed and published; any known
ence, he has practiced for twenty-four years in the or potential rate of error; and acceptance of meth-
fields of hydrodynamics, sediment transport and odologies within the relevant scientific or technical
scour processes in rivers, estuaries, lakes, coasts, community. Id. at 59394. However, that list is not
and oceans. Id.; Def.s Resp. 20. Dr. Nairn has exhaustive, and the trial court may scrutinize the
conducted a number of coastal engineering inves- portions of an experts testimony that is [sic] based
tigations, created numerical and physical modeling upon the experts skill or experience. Kumho Tire,
and design projects, and directed coastal zone 526 U.S. at 151. [T]he trial judge must have con-
management projects. JR 44248. Dr. Nairn has siderable leeway in deciding in a particular case how
worked throughout North, Central, and South Amer- to go about determining whether particular expert
ica; Africa; the Middle East; Asia; and Europe. Id. testimony is reliable. Id. at 152. The second prong
Dr. Nairn has authored at least sixty-five articles inquires whether the testimony is relevant to the
published in peer-reviewed publications, many of facts at issue. Daubert, 509 U.S. at 59192. Accord-
which relate to coastal processes involved in this ing to the Court, relevance requires that a fit
litigation. Def.s Resp. 20. He has been qualified exists between the proffered testimony and the issue
to offer and has provided expert testimony in one to be resolved by trial.16

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 4
Thus, this is the framework within which, or the prism guidelines or studies, such as those published by the Busi-
through which, a trial court is going to determine whether ness Roundtable, the Mechanical Contractors Association
expert testimony on labor inefficiency is admissible. of America (MCAA), and the National Electrical Con-
While the trier-of-fact certainly has broad discretion to strictors Association (NECA); (4) that rarest of available
qualify an expert and admit that experts opinion (espe- methodologies, direct observation; and (5) generally, as a
cially in cases that are tried to the court or board), this is last resort, the so-called total cost or modified total cost
really less than half the battle. The harder and ultimate methods. As students of construction law know, total
test, of course, is persuading the trier-of-fact with such cost and its cousin, modified total cost, analyses are
testimony. the most criticized of methods of proving damages and
will be accepted only when there is truly no other way to
The Measured Mile: The Gold Standard for Proving prove damages.20
Lost Labor Productivity As with all of these methodologies, the old adage the
The authors of the leading treatise on construction law devil is in the details applies, and it is to those details
state: that we now turn.

Loss of efficiency normally is proven by a mea- Development of the Specialty of Cost Engineering and
sured mile analysis comparing current project Methods for Determining How Best to Calculate Lost
before disruption and after disruption labor Labor Productivity
productivity, past and current project labor produc- Importantly, and in light of Dauberts sword of Damo-
tivity, and antidotal evidence. * * * Where specific cles that hovers over every loss-of-labor-productivity
job history is inconclusive, loss of efficiency also analysis, a claimant and its attorney seeking to utilize
may be proven: either the measured mile approach and its variants, or
others mentioned above, both need to become intimately
(1) By comparison of productivity during a familiar with how these methods are developed, their rel-
disruptive event with reasonable productivity ative strengths and weaknesses, and what is necessary to
assumptions (supported by historical data or ensure, initially, their admissibility and, ultimately, their
detailed estimates) upon which the bid was based; effectiveness in persuading a trier-of-fact to award loss-
(2) By comparison of productivity achieved on of-productivity damages.
similar work; Fortunately, over almost the last 30 years, a number
(3) By comparison with industry standards of scholarly articles, many of them peer reviewed, have
reflected in industry manuals and learning curve been written by cost engineers describing the evolution
studies prepared on the basis of scientifically of innovations in technique in developing and deriving
accepted methodologies; and the factual bases for their analyses. These articles have
(4) By expert testimony.17 also provided improvements to this effort, shoring up
perceived weaknesses in some of the methodologies. We
One of the pioneers of the measured mile approach, will discuss these articles and their evolutionary develop-
Dwight A. Zink, provides the following definition: ment of the science of lost labor productivity further
on in this article.
The measured mile method is a technique whereby The understanding and quality of analysis of lost
an unimpacted period or area or activity of con- productivity/labor inefficiency claims analysis and prepa-
struction work is compared with another period or rations have been greatly enhanced as cost engineering
area or activity of construction work that has been has become a recognized specialty within the range of
disrupted, the assumption being that the difference construction claims skills. With the advent of organiza-
between the labor or equipment hours expended tions such as the Association for the Advancement of
per unit of work performed in the unimpacted and Cost Engineering International (AACE International),
impacted periods represents the loss to the con- this specialty has gained widespread recognition. Indeed,
tractor due to the impact or disruption for which AACE International provides a certification procedure for
another party is responsible.18 those seeking to be recognized as having expertise in this
field.21 Moreover, AACE International has developed a
As such, the measured mile is [t]he method of set of Recommended Practices, one of which is entitled
proof generally recognized as the best available in most Estimating Lost Labor Productivity in Construction
instances.19 Claims, known as Recommended Practice 25R-03. As
As noted above and as we will develop below, there are might be expected, this recommended practice is relevant
other ways to attempt to prove loss of productivity, other to our discussion here. We will discuss this recommended
than the so-called measured mile, including: (1) what practice at greater length and in more detail later in this
has been called the baseline method; (2) comparison article.
methods; (3) the use of construction industrydeveloped By reviewing the literature and engaging certified, or

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 5
otherwise qualified, cost engineers, and following the as well as in numerous cases in which lost productivity
recommended practices of organizations such as AACE labor inefficiency damages are discussed.
International, the claimant and his/her attorney can go In fact, this method received acceptance by courts even
far in establishing the bona fides of a lost labor productiv- before the term measured mile became common parlance
ity claim. Correspondingly, the opponents of such claims to describe the method to quantify lost labor productiv-
also have a trove of information from which to draw to ity. Often, this method was referred to as the differential
determine whether a claimants lost labor productivity method. For example, the U.S. Court of Appeals for the
claim will either avoid or be fatally injured by Dauberts D.C. Circuit accepted this so-called differential method
sword of Damocles. analysis in the seminal case of U.S. Industries, Inc. v.
In the ensuing pages, we will discuss these various and Blake Construction Co., Inc.,23 wherein the court noted
developing methodologies to familiarize the reader with that it was a well established methodology for proving
them and to consider which method or methods are more increased labor cost damages due to lost productivity,
appropriate in particular cases. As experts have noted: without ever using the term measured mile.
As noted above, the initial use of the term measured
the number of variables that can affect productiv- mile in connection with lost productivity quantification is
ity at the specific project site can be extensive. As generally ascribed to Dwight Zink, when he proposed his
methods of analysis become less project specific measured mile procedure in his 1986 article entitled The
and involve the comparison of separate projects, Measured Mile: Proving Construction Inefficiency Costs.24
the number of potential variables that can affect Since then, of course, many courts and boards have both
the results increases and the certainty of the results accepted and adopted the measured mile approach. For
decreases. As the methods of analyses become even example, in DANAC, Inc.,25 the Armed Services Board
less project specific, such as in empirical studies, the of Contract Appeals (ASBCA) confirmed that a good
degree of certainty is even further diminished. In period vs. bad period analysis of comparing the labor
general, proofs of causation and lost productivity costs of work performed during unaffected periods with
are most preferred if they are based on contempo- that performed during periods affected by disruptive
raneous project specific documentation.22 events not caused by the claimant is a well-established
method of proving damages, citing the D.C. Circuits
Of course, what methodology to use may well be predi- Blake decision26 as supporting authority. In addition, the
cated on the nature and pervasiveness of the disturbances ASBCA, in W.G. Yates & Sons Construction Co.,27 not
impacting efficiency and, very often, the amount of and only endorsed the claimants measured mile analysis but,
detail contained in the particular projects documenta- again, declared that the measured mile method was a
tion. The fewer the particular impacts causing problems well established method of proving damages.
and the more detailed the information in documentation,
the greater the ability to utilize the more project-specific Extension of the Measured Mile to Similar, but Not the
methodologies to develop the claim and the more likely Same, Work
the acceptability of particular analyses. With that, we will We know from experience, however, that the literal requi-
discuss the various methods of lost productivity/labor sites for a true measured mile, i.e., the ability to compare
inefficiency claim detection. the same labor work occurring in unimpacted and
impacted periods on the same project, are circumstances
Classical Measured Mile: How It Is Determined that on many, if not most, projects are the exception
The traditional measured mile method relies upon a rather than the rule. As a result, a number of courts and
comparison of labor productivity of identical activities boards began accepting the broadening of the measured
occurring in both unimpacted and impacted periods or mile concept to include comparisons of similar work
segments of the same project in order to quantify the activities as opposed to the rigidity of identical work, as
lost productivity resulting from the disrupting events well as permitting the comparison of lightly impacted peri-
for which the claimant bears no responsibility. The obvi- ods, as opposed to unimpacted periods. In Clark Concrete
ous advantage of the measured mile method over other Contractors, Inc.,28 the. General Services Administration
approaches is that it relies on actual performance achieved (GSA) awarded a contract to Clark to construct a multi-
on the same work from the same project, thereby elimi- story concrete building. During construction, GSA made
nating most disputes over the validity of cost estimates, significant design changes that Clark alleged caused the
or productivity-impacting factors for which the claim- contractor to modify its planned work sequence, result-
ant is not liable. ing in delays and labor congestion at the site that required
It makes sense that this classic measured mile approach rescheduling of work crews and the incurring of overtime
has been considered as the preferred method of proving expenses. The contractor contended that it had calcu-
lost productivity as reflected in numerous professional lated its lost productivity based on similar work that was
articles and in the prioritization of most-to-least effective reasonably like the actual labor that had been impacted
by AACE Internationals Recommended Practice 25R-03, and for which Clark sought labor inefficiency damages.

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 6
In ruling for Clark, the General Services Board of Con- Although utilization of such a conservative baseline
tract Appeals (GSBCA) stated that: necessarily prevents absolute exactitude, it should meet
the minimal requirements, as described in Clark, in pro-
[the government)] is correct in asserting that the viding a reasonable and meaningful approximation
work performed during the periods compared by of the damage via the measured mile comparison.
[the contractor] was not identical in each period. We
would be surprised to learn that work performed in Efficiency Factors, Earned Value, and Comparison with
periods being compared is ever identical on a con- Budget and Estimates to Derive Lost Productivity
struction project, however. And it need not be; the Beyond the issue relating to establishing an appropriate
ascertainment of damages for labor inefficiency is baseline to make an appropriate comparison between
not susceptible to absolute exactness. . . . We will unimpacted (or lightly impacted) periods with impacted
accept a comparison if it is between kinds of work periods is the question of the adequacy and specificity of
which are reasonably alike, such that the approxi- the contractors records relating to labor costs incurred. It
mations it involves will be meaningful.29 is quite common for contractors to only maintain records
that simply reflect the number of labor hours incurred
Thus, according to the GSBCA, so long as work in within a given period without accounting for the quan-
the unaffected period was reasonably alike, it could tity of output achieved by those labor hours. While this
be compared with different work in the affected period, is not, or should not be, fatal, the lack of such documen-
provided that such approximations were meaningful. tation makes the task of the claimants expert to prove
Not surprisingly, no cases have been found that define labor inefficiencies, understandably, more difficult.
precisely the extent to which work must be reasonably
alike or when approximations are meaningful.
Rather, because of the variety of circumstances presented
by different construction cases, each one requires that it
be viewed on its own merits, with the triers-of-fact care-
fully weighing the facts of each case. Suffice it to say, Front-end loading of bids may
however, that for triers-of-fact to be expected to accept
similar work comparisons, the following factors will be seriously and adversely impact the
extremely relevant: accuracy of these calculations.
The work performed in the measured mile and the
impacted period should be substantially similar in
type, nature, and complexity;
The composition and skill level of crews should be
The measured mile should represent a contractors In such cases, the cost engineer may be required to
reasonably attainable level of productivity; and resort to an analysis of the contractors bid estimates with
The work environment should be similar. the calculated percentages of completion contained in its
monthly pay requisitions showing percentages of comple-
Developing the Baseline for the Measured Mile tion of the various tasks performed. The percentage of
One of the more difficult tasks in performing the completion of various tasks in the contractors periodic
measured mile analysis is in finding the baseline of payment requests generally reflects the ratio of what por-
unimpacted or lightly impacted work for purposes of tion of a particular task has been completed to the total
comparison with the impacted period of work. As has value ascribed to the performance of such task as listed
been noted, there are many projects that simply do not in the schedule of values accompanying the contractors
have work periods that are unimpacted by some distur- bid or estimate. Because of the reliance on bid estimates
bance. In such instances, the productivity expert will have or earnings based on the budget, this necessarily devi-
to find some lightly impacted periods/segments of suffi- atesto a degreefrom the traditional measured mile
cient duration to demonstrate the productivity that the analysis, which, in the best of cases, should eliminate the
contractor could have actually achieved when the work need to rely on the contractors bid estimate and/or bud-
was only lightly impacted. This period or segment then get. Naturally, should the claimant have to resort to a
becomes the baseline. As such, it is essentially a conser- reliance upon its bid and/or budget as the percentages of
vative assessment by the productivity expert because any completion contained in its payment applications, these
baseline productivity so derived will not represent what will also require proof of the reasonableness and appro-
the contractor was capable of achieving if completely priateness of these estimates and calculations. As such,
unimpacted. Therefore, when compared to more heavily so-called front-end loading of bids may seriously and
impacted productivity, the claimant is forgoing the dam- adversely impact the accuracy of these calculations by
ages it incurred from the light impacts. suggesting an unattainably high rate of expected progress.

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In P.J. Dick,30 a subcontractor sought to recover labor Essentially, the only difference was instead of using the
inefficiency damages on its pass-through disruption claim term efficient factor, as in P.J. Dick, the board in Bell used
against the Veterans Administration (VA). The subcon- the term reasonable productivity level, and the VABCA
tractor predicated its claim upon claimed design defects accepted this analysis. Interestingly, the government did
and purported acceleration of its electrical work. Because not challenge the boards award as it related to lost pro-
of the lack of any unimpacted periods in the same work ductivity in its later appeal.33
activity on the project from which to derive a measured
mile, however, the subcontractors expert selected a base- State Courts Experience With Labor Inefficiency Claims
line from similar work completed by the subcontractor and the Measured Mile
on the same project. The VABCA accepted this analysis, State courts have begun utilizing the federal courts
despite the lack of an impact-free measured mile from and boards measured mile approach to calculate lost
identical work, finding the subcontractors approach to productivity as well. In James Corporation d/b/a James
be legitimate and holding that there was no basis to Construction v. North Allegheny School District,34 the
conclude that either the productivity of the same crew contractor, performing renovations on an elementary
or that exactly the same work is a prerequisite for a valid school, claimed that it suffered damages due to lost pro-
measured mile analysis to establish the amount of loss ductivity caused by the owners unreasonably refusing
of productivity.31 to extend the time for completion after the contractor
experienced delays for which it was not responsible. The
contractors expert employed a version of measured mile
analysis to prove lost productivity because of construc-
tive acceleration. The contractors expert compared the
percentage of work performed to the number of labor
The board in Bell used the hours used. Despite the school districts characteriza-
term reasonable productivity level, tion of the contractors analysis as nothing more than
the disfavored total cost approach, which subtracts the
and the VABCA accepted this analysis. estimated costs under the contract from the actual costs
incurred,35 the court was persuaded that the contrac-
tor had suffered lost productivity damages, explaining:

Contractors witness, an expert in project con-

Moreover, the productivities of each of the activities trols and claims analysis (claim expert), explained
measured were not compared directly to find the loss of his measured mile analysis included an earned value
efficiency with similar work. Instead, the board accepted factor since the Project was delayed from the begin-
what was called an efficient factor to determine the ning and the work could not be easily compared.
ratio between actual labor hours performed and budgeted N.T. Vol. III at 157, 231. According to claim expert,
labor hours for the similar work utilized for this analysis this comports with industry standards. Id. at 158.
in the unimpacted period. The so-called should-have- Claim expert then described his methodology.
been labor hours for the impacted work were calculated Dividing the Project into two time periods, claim
by multiplying the budgeted labor hours by the efficient expert compared the percentage of work completed
factor. The lost labor hours or diminished productivity in each period to the number of labor hours uti-
was then calculated as the difference in the cost of the lized. During the first period, Contractor expended
actual hours expended and the should-have-been labor 4,279 hours to complete 41.76% of the Project. Had
hours for the impacted work. Contractor been able to work at the same pace dur-
In Bell BCI Company v. United States,32 the contrac- ing the second period, it would have expended an
tor (Bell) also sought to recover for claimed lost labor additional 5,967 hours to complete the remainder
productivity on a National Institutes of Health (NIH) of the Project. However, the Projects total hours
laboratory building project. Nine months into the project, equaled 19,645 hours; therefore, Contractor used
NIH determined to add an additional new floor and, in 15,366 hours to complete the second period (19,645
addition, issued more than 200 modifications to the proj- 5,967 [sic: 4,279]). Thus, the inefficient labor hours
ect. As a result, the project finished more than 19 months amounted to 9,366 (15,366 5,967 = 9,366). To
late, and the contractors costs exceeded the contract price arrive at an earned value factor of 61%, claim expert
by 34 percent, or $21.4 million. Although NIH had com- divided the inefficient labor hours by the number of
pensated Bell for performing most of the changed work, hours worked in the second period (9,366 / 15,366
Bell, nevertheless, asserted an impact claim for the cumu- = 61%).
lative effect of the changes on Bells overall performance. Utilizing the earned value factor, claim expert
Bell used virtually the same measured mile methodol- then determined the number of inefficient labor
ogy employed and accepted by the VABCA in P.J. Dick. hours Contractor and its subcontractor each

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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 8
experienced. The results were multiplied by the that the court should not have permitted a modified total
applicable hourly rates of pay. In total, claim expert cost claim because the claimant could and should have
valued Contractors damages at $294,000.36 utilized the measured mile approach. The court, how-
ever, rejected this argument, holding that, because of the
A Massachusetts court has also endorsed the mea- primes handling of the job, the claimant could not per-
sured mile as a proper means of proving lost productivity form a measured mile analysis but had no other way than
damages. In the case of Central Ceilings, Inc. v. Suffolk the modified total cost method to quantify its damages.
Construction Company, Inc.,37 the trial court stated that It did not help that the prime contractors expert, who
Suffolk [the prime contractor defendant] is correct that, opined that measured mile was achievable, did not per-
generally, [w]hen a contractor alleges a loss of productiv- form one himself.
ity, the measured mile approach is the preferred method Although the state case law in particular is not exten-
of computing damages. James Corp. v. North Allegheny sive, it appears clear that state courts and federal district
Sch. Dist., 938 A.2d 474, 495 (Pa. Commw. Ct. 2007). In courts, when presented with the measured mile as a means
this case, however, the Massachusetts court permitted the of proving lost labor productivity, will embrace it, pro-
contractor to prove its claim of lost productivity using a vided the experts qualifications and conclusions meet the
modified total cost method; because the prime contrac- requirements for admissibility.
tors misconduct throughout the Project impacted all
aspects of Centrals performance, [it] thereby preclud[ed] Misapplying the Measured Mile
[Centrals expert] from identifying a baseline and, conse- To reiterate, at bottom, the measured mile method is a
quently, from applying the measured mile.38 tool to calculate lost labor productivity by (1) compar-
Tennessee courts have also looked favorably upon the ing (a) identical or (b) similar work to (2) quantify the
measured mile approach. In Contract Management, Inc. claimants productivity loss, (3) provided that the claimant
v. Babcock & Wilson,39 the federal district court noted: is not responsible for the causes of the losses of pro-
ductivity. Clearly, however, the measured mile approach
The measured mile approach has been upheld in cannot be universally mechanically applied, nor should
Tennessee as a reasonable method to calculate loss it be, to every case of lost labor productivity. Without
of productivity damages. See Lee Masonry, Inc. v. the requisites of (1) relevant and available cost data, (2)
City of Franklin, 2010 Tenn. App. LEXIS 301, 2010 the existence of either identical or sufficiently identical
WL 1713137 (Tenn. Ct. App. 2010). But B&W Y-12 work to compare, and (3) the existence of unimpacted
objects that this method requires CMI to deter- or lightly impacted baseline periods (4) on the same or
mine a base period when it was not impacted (here, similar projects and (5) the ability to demonstrate that the
the period from September 10 to October 15) and claimant was not the cause of the loss of labor produc-
that this base period is subject to a good deal of tivity being claimed, (6) where noncompensable impacts
subjectivity. The probative value of the measured are accounted for, efforts to prove loss of productivity
mile analysis necessarily depends upon the com- damages via measured mile may, and probably will, fail.
parability of the circumstances surrounding the The mere employment of the nomenclature of a mea-
sample to the circumstances which would have sured mile without a strong underlying factual basis will
prevailed for the work which could not be directly likely result in a very substantial expenditure of funds
measured. Lamb Engg & Constr. Co., E.B.C.A. in the attempt to collect damages, with the result com-
No. C-9304172, 97-2 B.C.A. (CCH) 29,207, at ing to naught.
9394 (1997). Because, like snowflakes, each construction project
is different, no courts or boards have devised either a
The district court, hearing the matter without a jury foolproof or fail-safe procedure for comparing similar
and while acknowledging the appropriateness of the work, or clear and foolproof guidelines to eliminate the
measured mile to determine lost productivity damages often-fuzzy boundaries between similar and dissimi-
in Tennessee, nevertheless agreed with the party oppos- lar work. The following is a list of the shoals upon
ing the claim that the claimants experts measured mile which many measured mile analyses have foundered:
was flawed because its base period is not likely to be flawed, erroneous, or inadequate data;
representative of the productivity that CMI could have calculation mistakes;
achieved during the first few weeks of the Project, even incompatible or dissimilar work periods, i.e., com-
if it had not been impacted.40 Because of these flaws, paring apples with oranges;
the court revised the claimants calculation, reducing the failure to provide either an adequate (or any) analy-
amount claimed by 25 percent. sis of a cause-and-effect relationship; and
Florida courts have implicitly also endorsed the failure to exclude noncompensable impacts, such as
measured mile approach in In re Electric Machinery Enter- weather, from the calculation of lost productivity.
prises, Inc. v. The Hunt Construction Group,41 in which For instance, in J.A. Jones Construction Co.,42 the
the opponent to a lost efficiency damages claim argued Corps of Engineers hired the contractor to provide flood

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protection for the West Virginia town of Matewan along a work items were adversely affected by the changes.47
river there. In later litigation before the Corps of Engineers Furthermore, the board determined that the experts
Board of Contract Appeals (ENGBCA), the contractors analysis was additionally undermined because he failed to
expert, seeking to show lost productivity damages, pre- take into account any contemporaneous, noncompensable
sented a measured mile analysis purporting to have resulted disruptions. Expanding on this point, the board explained:
from the disruptive cumulative impact of change orders.
The board rejected this analysis for a number of reasons, Although [the contractors expert] maintains that
including what it viewed as the arbitrary differentiation the subjective results of his methodology in this case
between the claimed impacted and unimpacted periods, takes into consideration some other factors that
perceived data errors, the failure to provide an adequate might cause inefficiency, (such as weather and poor
cause-and-effect analysis of the disruptions upon the work management) there is nothing in the macro-oriented
of the contractor, and failure to take into account any con- nature of his analysis that eliminates these other
temporaneous noncompensable disruptions. potential causes of any increased hours related to
The board pointed out that J.A. Joness expert had performance of the unchanged work and that he
created the specific formula he used for his Measured made no analysis of the weather sensitivity of
Mile Analysis. It has not been tested or reviewed by his specific work items. We consider that the contrac-
peers.43 The board explained that the expert apparently tor has failed to prove that other [noncompensable]
applied subjective filters to identify its Base Period when factors and variables did not significantly contrib-
only contract work was performed versus the impacted ute to any production inefficiency.48
periods when both base contract work and change order
work were performed. The board refused to accept the As the board in J.A. Jones makes clear, analyses by
experts analysis that: experts of labor inefficiency cannot be based on a mere
mechanistic application of perceived principles of the
if one member of a crew worked on [change measured mile method, but the expert must convey a real
order] work during any given day for more than knowledge of the project, based on an examination of
6 hours and also worked on base contract work (a the actual and adequate project documents and discus-
cost-coded item), that would be classified by [the sions with relevant and available actual participants in
contractors expert] as an impacted day and the what happened on the job.49
cost-coded item (hours and quantities) would be In Southern Comfort Builders, Inc. v. United States,50 the
placed in the impacted period for that day.44 National Air and Space Agency (NASA) engaged con-
tractor Southern Comfort Builders, Inc. (SCBI) to install
Additionally, the board also found likely inaccuracies heating, ventilation, and air conditioning (HVAC) equip-
in the experts calculations. The expert heavily relied upon ment, along with the associated ductwork, wiring, and
J.A. Joness crew foremens reports, in which the board piping, in its mobile launch platforms (MLPs) for its Ken-
noted that the number of JO hours reported by the fore- nedy Space Center space shuttles. SCBI claimed a loss of
men was materially overstated.45 productivity due to defective specifications, differing site
The ENGBCA also criticized what it found to be a conditions, and failure to properly administer the contract.
fundamental flaw in J.A. Joness measured mile analysis, In attempting to develop its labor inefficiency claim,
i.e., the lack of a cause-and-effect analysis, elaborating the contractor acknowledged it was unable to establish an
as follows: acceptable measured mile using contemporaneous proj-
ect documentation because:
[T]he contractors expert] did not perform a cause-
and-effect analysis. . . . He made no attempt to 1) SCBIs entire performance period while installing
isolate specific impacts allegedly caused by changes. the HVAC modification on MLP 1 was impacted
His analysis is not dependent on detailed knowledge due to the many conflicts encountered and the
of the project. The methodology used by [the con- slow response time by NASA, and 2) due to the
tractors expert] does not consider the nature of any short duration of the installation of the HVAC
specific changes, or what locations/areas and work modifications to MLP 1 (June to October), contem-
they directly affected on the project. Nor does it poraneous data segregating productivity impacts is
take into consideration the timing of the changes simply not available.51
and whether the contractor had adequate notice in
advance to implement and sequence the work in an Despite these impediments, SCBIs expert created what
orderly fashion.46 he coined a modified measured mile method analysis by
using a productivity baseline derived from the work of
The board also found fault with the contractors expert for a different contractor on the project. The court rejected
failing to analyze base contract cost-coded items to provide SCBIs self-described modified measured mile calculation
convincing evidence demonstrating how those base contract as fatally inadequate, as follows:

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SCBIs measured mile calculation is deficient in The important and relevant recommended practice
that it does not adequately represent a compari- developed by AACE International, briefly referenced
son between SCBIs unimpacted work with SCBIs above, is in its RP 25R-03: Estimating Lost Labor Pro-
impacted work. Instead, SCBIs calculation com- ductivity in Construction Claim. This recommended
pares SCBIs work with the work performed by practice attempts to define and summarize the commonly
another contractor, Merritt. Although the two used methods of quantifying lost labor productivity
companies conducted similar work, even SCBIs claims and to rank them from the most reliable to the
own expert . . . indicated that, under a measured least reliable, based on a review of professional (or peer-
mile analysis, comparing two separate companies reviewed) literature, existing case law, as well as other
is fundamentally flawed. Also, since SCBI did not professional articles discussing such construction claims.
provide a basis of its work unimpacted by govern- We have discussed a number of these methods already.
ment actions, the court cannot properly conclude
what SCBIs unimpacted work would have been.52

Although it is the nature of a measured mile analy-

sis that one size cannot fit all, due to the variability of The court rejected SCBIs self-described
factors affecting each construction project, unless the
project provides certain essential elements required by modified measured mile calculation
the measured mile method, there are certain measured as fatally inadequate.
mile analyses that fit none.

AACE International Recommended Practice 25R-03

and Discussion of the Professional Literature on Loss of
Productivity AACE International divides these various methods
As noted above, there is a developing, and now exten- into five categories, in descending order of reliability:
sive, body of professional literature, often peer-reviewed, project-specific studies,
around the topic of loss of labor productivity with which project-comparison studies,
both claimants for and opponents against and their attor- specialty-industry studies,
neys need to become familiarthe claimants, to ensure general-industry studies, and
that their claims are compliant with what cost engi- cost-based methods.
neers recognize as valid analyses, and the opponents, to Project-specific studies, i.e., those limited to a review
develop arguments to attack the validity of such claims. of and reliance upon the actual records of a particular
The AACE International, mentioned earlier in this article, project, are, quite naturally, generally preferred to proj-
was founded in 1956 by cost estimators and cost engineers. ect-comparison studies, which attempt to compare similar
In its current Constitution and Bylaws, the AACE states: projects. In turn, project-comparison studies are likely to
be given greater weight than specialty-industry studies.
The Association is dedicated to the tenets of further- Specialty-industry studies, correspondingly, are generally
ing the concepts of total cost management and cost considered more reliable than general-industry studies,
engineering. Total cost management is the effective and last among the five categories are cost-based meth-
application of professional and technical expertise ods, more commonly known as total cost or modified
to plan and control resources, costs, profitability and total cost, which are the least preferred form of analysis.
risk. Simply stated, it is a systematic approach to In AACE Internationals analysis of the case law, and
managing cost throughout the life cycle of any enter- as some of the cases discussed herein reveal, the term
prise, program, facility, project, product, or service. measured mile has been used rather loosely in lost pro-
This is accomplished through the application of cost ductivity quantification. Those accepted by courts and
engineering and cost management principles, proven boards fall into two general categories: those that are
methodologies, and the latest technology in support based on the measurement of labor productivity using
of the management process.53 the physical quantity of work completed per unit of time
or effort, as in Clark Concrete Contractors, Inc.,55 and
Clearly, such efforts by the ACCE International have those based essentially on earned value, as in P.J. Dick
more easily enabled experts presenting claims to meet and James Corporation.56
the requirements discussed in Daubert.54 Arguably, their AACE Internationals RP 25R-03 accepts the former
efforts should bring some consistency and credibility in as the true measured mile method but categorizes the
endeavoring to derive measured miles and to quantify lost latter as an earned value analysis, though acknowledg-
labor productivityeliminating contentions that such ing that both belong to the generally more reliable and
claims are speculative, elusive, and too malleable to be acceptable project-specific studies. RP 25R-03 also adopts
relied upon. the baseline method of using lightly impacted periods/

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segments to derive the baseline when a totally unimpacted such analyses will invariably be rejected but just that they
period/segment of the project simply does not exist for a are more subject to attack.
particular activity, as a way of providing an alternative Comparable-project studies are used to compare the
measured mile method. productivities of similar work activities on the project
Some other project-specific studies are based on in question with that of work on a similar but different
sampling of the work performed during the course of project in order to derive a possible loss of productivity.
construction. When we look at the professional literature, While necessity is the mother of invention, as Plato has
these sampling methods, which we will discuss below, said in his Dialogues, this does not mean that courts or
often appear to be simple and inexpensive to perform. boards are required to recognize these inventive efforts
The real challenge, however, is in providing truly repre- to derive lost efficiency damages. As such, tribunals are
sentative samples of the work because, not surprisingly, less likely to accept either comparable work studies or
their reliability is usually challenged on the basis that the comparable project studies as sufficiently persuasive to
samples chosen are neither large enough nor representa- support a claimants effort to recover lost productivity
tive of the overall work. damages. The inherent weaknesses and difficulties are: (1)
proving a rational similarity between (a) different trades,
(b) contractors, and (c) projects; (2) attempting to derive
a causal connection between the disruption(s) and lost
labor productivity; and (3) failing because courts and
The lack of applicability to many boards deem the added variables involved simply so spec-
projects has spawned the necessity ulative and assailable as to be rejected under Daubert or,
if admitted, simply not persuasive. Moreover, they pale
of other methods of calculation. in comparison to stand-alone project-specific methods
to quantify lost labor productivity. As such, where more
conventional methods of proof of the measured mile
are available, these should always be used.58 Where the
amounts of damages involved are high enough, however,
RP No. 25R-03 discusses the less reliable project com- the cost in performing comparative project studies may be
parison studies, including comparable work studies justified in order to corroborate the more conventional
and comparable project studies, as efforts to derive what methods, thereby significantly bolstering the main thrust
is the should-have-been productivity. These are used in of a lost labor liability claim.
lieu of project-specific studies when the more conventional Specialty trade or industry studies refer to numer-
and acceptable modalities of deriving a baseline in an ous specific studies and papers performed and produced
unimpacted or lightly impacted portion or segment of by organizations such as Mechanical Contractors
the work to compare with the same work in an impacted Association of America (MCAA), National Electrical
portion or segment of the same work on the same project Contractors of America (NECA), and U.S. Army Corps
are, by dint of circumstance, simply not available. of Engineers in an attempt to develop, generically, the
In performing a comparable work study, the analyst impact on labor productivity of various commonly expe-
may use information from the same project to either: rienced factors occurring on projects, such as numerous
design defects, constructive acceleration, change orders,
(1) Estimate the lost productivity on the impacted cumulative impacts (the so-called death by a thou-
period, and then locate an analogous (but not the sand cuts) and rework, the effect on the learning curve,
same) work activity on the same project that was increased overtime and shift work, project characteristics,
either nonimpacted or lightly impacted and could project management, and unusual weather.
involve a different trade, and calculate that trades These general industry studies attempt to aid in the
productivity; or quantification of lost labor productivity based on par-
(2) Compare productivities during the impacted ticular types of impacts, solely or in combination, and
period and of similar but nonimpacted work per- adherents attempt to apply the results of these studies to
formed by another contractor on the same project. a particular project experiencing these various categories
of impacts with rather mixed results.59
Southern Comfort Builders, Inc. v. United States,57 Because these studies do not deal either directly or
discussed above, involved what was termed a measured indirectly with the particular project at hand and make
mile analysis but was more appropriately categorized as no pretense in doing so, AACE International views these
a comparable work study because it involved the com- methods, along with the so-called total cost method and its
parison of work performed by two different contractors. cousin, the modified total cost method, as the least effec-
It was largely for this reason that the court in that case tive means of proving lost productivity damages.
would not accept this methodology as a properly imple- Again, these studies may serve a helpful role in corrob-
mented measured mile analysis. This does not mean that orating the analyses derived from the more conventional

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Measured Mile Baseline Period
The negative impacts are limited to those caused solely The baseline period need not be free from owner
by the contractor. impacts.

The measured mile time frame is several or more The baseline time frame need not be consecutive
consecutive reporting periods. reporting periods.

The focus is on finding periods of time when there are The focus is on finding the best performance the
no owner-caused impacts. contractor could achieve.70

modalities of proving lost productivity damages. Because long period or segment may just not exist from which an
they already exist, there is little additional expense in acceptable measure mile with uniform or nearly uniform
using them to support conclusions based on analyses productivity can be demonstrated. Indeed, Zink recog-
that are on firmer factual ground. nized this when he stated:

Techniques to Determine the Measured Mile as Found in The measured mile approach to isolating the dis-
the Professional Literature ruption costs of acceleration is generally accepted
Often, it is extremely difficult to identify a measured mile by the courts as being a reasonable way of deter-
merely through a cause-and-effect analysis. Numerous mining the damages incurred over and above those
construction researchers and professionalsinclud- which should have been expected. However, the size
ing Zink;60 Gulezian and Samelian;61 Thomas, Horman of the sample must also be reasonablei.e., extrap-
Minchin, and Chen;62 Thomas and Sanvido;63 Thomas, olating two percent of progress into 80 percent of
Riley, Sanvido;64 Ibbs and Liu;65 and the coauthors of expected costs would hardly be reasonable.68
this article66have developed varying procedures to assist
their efforts to identify and establish a measured mile or The lack of applicability to many projects has spawned
baseline. These techniques generally rely on the produc- the necessity of other methods of calculation.
tivity measurements based on physical units completed.
Each of the different methods has its own underlying Thomass Baseline Method
premises and assumptions. Naturally, applying these In order to address this lack of a sufficiently long period
different procedures without accounting for and ade- of uninterrupted or lightly interrupted segment or period
quately explaining the relevant underlying premises and of activity required by the original measured mile method,
assumptions will likely lead to erroneous measured mile Professor Thomas and his collaborators69 introduced the
calculations. so-called baseline concept. These researchers have taken
the position that a baseline period is a period of time
Zinks Measured Mile Procedure when the contractor performs at its best, but the period
The procedures championed by the pioneer, Zink,67 involved does not have to be a continuous, nonimpacted
require the following: time frame. The differences between the measured mile
Plot the actual labor man-hours expended versus and the baseline period, according to Thomas et al., are
the corresponding percentage of completion for set forth in the above table.
the work; The baseline is, therefore, a relatively conservative
Exclude the first and last 10 percent from the anal- benchmark because it may include certain disruption
ysis because the productivity during these periods events. In order to determine a baseline, based on Thom-
may be impacted by build-up and tail-out ass analysis, the following steps must be taken:
effects, thereby skewing correct results; Ascertain the total number of contractor report-
Identify a linear or near linear portion of the work ing periods;
performed to arrive at the most efficient rate of Create a baseline subset consisting of 10 percent
progress in the 80 percent of the curve as the mea- of the total number of reporting periods but, in no
sured mile. event, less than 5 periods;
Zinks measured mile procedure shows a continuous This baseline subset should be for the reporting
period of time in which the most efficient productivity is periods that have the highest production or output;
uniform or nearly uniform. As noted above, the circum- The baseline is then assumed to be median of
stances of many projects will not permit the use of Zinks, productivity value per period or the productivity
perhaps, too simplistic methodology. This is because, in average in the baseline subset.
many projects, due to pervasive disruptions, a sufficiently It is important to note that Thomass procedure employs

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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 13
production instead of productivity to identify the base- to create a time-series plot of productivity values for corre-
line. Moreover, when the baseline is intermittent, a regression sponding reporting periods. Because a portion of the data
analysis (defined by statisticians as a statistical process for points may fall outside of the control limits, they are elimi-
estimating the relationships among variables) may be nec- nated and the process control chart is reapplied to reflect
essary to quantify the influence of multiple disruptions. these removals, with a recalculated center line and control
Thomass procedure is, naturally, more accurate when the limits. This process repeats itself until no points fall above or
input contained within each reporting period is either uni- below the control limits. This allows the mean productivity
form or almost uniform and when the reporting periods with of the points falling within the control limits, after the last
the highest production are also among the ones reflecting the iteration is used, to define the baseline productivity level.
best productivity. When the input in each reporting period is This method also may result, however, in a very con-
not uniform, however, or when the reporting periods with the servative baseline that may not reflect the attainable
highest production happen to be heavily impacted, Thomass sustained productivity, especially when the disruptions
approach may be unable to determine a viable baseline, or are pervasive, significantly diminishing the value of pro-
may generate a baseline that includes significant productiv- ductivity loss claim. When the majority of the data points
ity loss. This could create too conservative results from the occur in periods of disruption, this method will not likely
claimants perspective, resulting in the failure to capture the determine the baseline because all the data points may
true amount of lost labor productivity. In addition, Professor fall within the control limits.
Thomass procedure has also been criticized for the subjec-
tivity of selecting only a 10 percent size for the baseline set, Ibbs and Lius K-Means Clustering Technique-Based
which may be considered too small a sample. Procedure
K-means clustering, adopted by Ibbs and Liu,72 is a method
of cluster analysis that seeks to group observations into K
clusters in which each observation belongs to the cluster
with the nearest statistical mean.73 The avowed purpose of
their technique was to determine the reference period [of
By employing the K-means clustering the measured mile and a variant, the baseline method] using
technique, the productivity data objective criteria.74 In other words, this method seeks to take
the subjectivity out of the cost engineers analysis. According
can be divided into two clusters, to the authors, [i]njecting more objectivity into the claims
highest and lowest, or good and bad. resolution process will, in turn, help stem the rising costs of
such [construction labor inefficiency] disputes because the
litigating parties will have a more rational tool for evaluating
the merits of their respective position in the dispute.75 This
article describes in detail both Zinks measured mile approach
Gulezian and Samelians Control ChartBased Method and Thomass baseline method, going on to explain their new
Gulezian and Samelian have proposed another statistical methodology of statistical clustering.76 Succinctly put, their
approach based on a process control chart for estab- procedure contains the following steps:
lishing a productivity baseline that reflects a contractors 1. Two cluster centers are established to reflect the
normal operating performance.71 Such a process control highest and lowest productivity among all the
chart, using fairly standard statistical jargon, consists of: reporting periods.
Points representing a statistic of measurement 2. The distances to the two cluster centers are then cal-
in samples taken from the process at different culated for each reporting period, and the reporting
times; period is assigned to the cluster to which it is closer.
The statistical mean is then calculated using all 3. The statistical mean for each of the two cluster cen-
the samples taken; ters is calculated. If it is different from the cluster
A center line is drawn at the value of the sta- center, the cluster center is updated by it, and then
tistical mean; go back to step 2; otherwise, go to step 4.
Using all the samples, the standard deviation 4. The cluster with the higher productivity is then the
of the statistical mean is then calculated; baseline set, and its cluster center is determined to
The upper control limit (UCL) and lower con- be the baseline productivity.
trol limit (LCL) are drawn, typically, at three By employing the K-means clustering technique, the pro-
standard deviations from the center line. ductivity data can be divided into two clusters, highest and
To use the process control chart to determine the produc- lowest, or good and bad. The good productivity cluster, which
tivity baseline, the metric on the vertical axis is called the may not be continuous in time, is the baseline subset as deter-
productivity value, whereas the metric on the horizontal mined by Ibbs and Lius method, and the statistical mean of
axis is called time. The individual productivity values in the baseline subset is then selected as the baseline productivity.
corresponding reporting periods are plotted on the chart This method will always include the best reported productivity

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 14
in the baseline subset, regardless of whether it is attainable or reporting periods, thus addressing the production dif-
whether such productivity is sustained. The purported advan- ferences among reporting periods. Contemporaneous
tages of this analysis are that: (1) it is objective; (2) it is not an project information is useful to refine the selection
arbitrary one size fits all rule, and (3) it is a relatively simple of the productivity baseline.81
and quick calculation method.77
The coauthors of this article identified a flaw in using Zhao and Dungans IBM not only combines the
the clustering-based method in an attempt to determine advantages of the earlier methods, but also avoids their
a productivity baseline, however.78 Different solutions weaknesses. IBM does not require a continuous, unim-
sometimes can be reached from different initial condi- pacted period for the baseline subset. The sample size of
tions, which may create hurdles in resolving a productivity the baseline subset generated by the IBM is defined by the
loss claim, especially when different commercial software characteristics of the productivity data themselves, which
packages are employed to perform the K-means cluster- is an improvement on the arbitrary percentage used in
ing calculation by the opposing parties. Additionally, this Thomass method. Further, the IBM eliminates extreme
method lacks an assessment of the data in the selected data points of the Ibbs and Liu methodology that do not
baseline subset such that it cannot be determined whether represent the contractors normal operating performance.
they fall within the contractors reasonable range of nor- Therefore, IBM provides a unique baseline productivity
mal operating performance.79 more reflective of the contractors normal operating per-
formance without the need to subjectively eliminate data.
Zhao and Dungans Improved Baseline Method
In an effort to address many of the weaknesses in the Conclusion
methods discussed above, our coauthors have developed There is no question that a major component of construc-
a methodology they call the improved baseline method or tion damage claims involves the loss of labor productivity.
IBM, described in their article Improved Baseline Method Acceptance by courts and boards of a contractors right
to Calculate Lost Construction Productivity.80 to recover for lost labor productivity/labor inefficiency is
As for the IBM, the basic principle of labor productiv- now well established. That being said, claimants seeking
ity loss calculation, that is, comparing the attainable and to recover damages for such claims should expect strong
sustained labor productivity during the nonimpacted or Daubert challenges to both the credentials and the results
lightly impacted periods to the productivity in the impacted of their cost engineers analyses. There are no shortcuts
periods, is central to the analysis. The baseline subset is available in coming up with factually sound, acceptable,
defined as the periods in which the productivity reflects and persuasive evaluations and quantifications of labor
the contractors normal attainable and sustained operating inefficiency claims. Contractors involved in large projects
performance, which is not necessarily continuous in time. should review the way that they document labor produc-
The proposed approach for determining baseline produc- tivity on their jobs to ensure that they will have accurate
tivity comprises the following general steps: and detailed information at the disposal of cost engineers
that they engage to prove lost labor productivity.
Step 1: Segregate the data into the good productivity Cost experts, in turn, should use, where available,
group (GPG) and the bad productivity group (BPG) project-specific analyses. Only when either the circum-
using the overall average productivity. In lost produc- stances of the particular construction project and/or the
tivity claims, the establishment of the cause-and-effect lack of appropriate documentation are at issue should
relationship is one of the most important steps. The they employ the less-reliable methodologies. Those other
causal relationship between disruption and productivity less-reliable methods might, however, be employed to cor-
governs the extent that lost productivity can be proven. roborate the more-acceptable methodologies.
It is generally accepted that with other conditions kept Over the last 30 years, a welter of peer-reviewed articles
the same, the more severe the disruptions, the worse have been published describing various techniques and
the productivity would be. The data points with good showing the evolution of these techniques with which any
productivity are normally encountered when no disrup- cost engineer who is engaged as an expert should be famil-
tions or light disruptions are experienced. Therefore, it is iar. It is to be expected that this body of knowledge will
reasonable to infer that the productivity observed in the continue to grow and that techniques will become more
periods without any assignable disruptions or with light refined, and, potentially, more objective and reliable. Claim-
disruptions should be better than the overall average ants and opponents of such claims and their counsel will
productivity, the impacted and unimpacted combined. need to keep abreast of these developments.
Step 2: Determine the baseline subset from the
good productivity group using statistical techniques, Endnotes
such as a modified control chart. The control chart 1. Dr. Kathleen M. J. Harmon & Bradley Cole, Loss of Pro-
technique is revised to use the average productiv- ductivity StudiesCurrent Uses and Misuses: Part 1, Constr.
Briefings, no. 8, Aug. 2006, at 1. See also J.D. Gilleard, The
ity as the center line instead of the arithmetic mean Creation and Use of Labor Productivity Standards Among Spe-
of the individual productivity values from different cialist Subcontractors in the Construction Industry, 34 Cost

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 15
Engg, no. 4, 1992, at 11 (1992). It is also important to note 28. G.S.B.C.A. No. 14340, 99-1 B.C.A. (CCH) 30,280.
that, while damages on a project may often be caused by delays, 29. Id. (emphasis added; bracketed language added).
damages for delay and for lost efficiency are not the same, and, 30. V.A.B.C.A. No. 5597 et al., 01-2 B.C.A. (CCH) 31,647,
where the contract language permits, both types of damages revd on other grounds sub nom. P.J. Dick, Inc. v. Principi, 324
may be recoverable. U.S. Indus., Inc. v. Blake Constr. Co., 671 F.3d 1364 (Fed. Cir. 2003).
F.2d 539 (D.C. Cir. 1982) (specifically holding that the two 31. Id.
were distinguishable and there could be a recovery for both, 32. 81 Fed. Cl. 617 (2008), affd in part, revd in part on other
provided that there was no double recovery.) See also Bell BCI grounds, 570 F.3d 1337 (2009).
Co. v. United States, 72 Fed. Cl. 164, 168 (2006), affd in part 33. Id.
and revd in part, 570 F.3d 1337 (Fed. Cir. 2009). As such, no 34. 938 A.2d 474 (Pa. Commw. 2007).
damages for delay (No D for D) clauses do not ordinarily 35. Id. at 495.
apply to lost productivity claims. 36. Id. See also United States ex rel. Greenmoor, Inc. v.
2. Harmon & Cole, supra note 1, at 1. v. Travelers Cas. & Sur. Co. of Am., 2009 U.S. Dist. LEXIS
3. Lee Davis, Laura Stipanowich & Walter Bauer, Does the 113153 (W.D. Pa. Dec. 4, 2009) (wherein a subcontractor
Measured Mile Measure Up? When It Has, When It Hasnt, sought to recover lost labor productivity damages). The mag-
and What May Happen Under Daubert/Kumho, Constr. istrate judge from the Western District of Pennsylvania stated:
Briefings, no. 4, 2007, at 1 [hereinafter Does the Measured As this Court previously explained in connection with its
Mile Measure Up?]. ruling on the admissibility of [the] expert testimony rela-
4. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, tive to Burchicks administrative cost claim, the measured
113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993). See also Does the mile approach is a method for calculating decreased pro-
Measured Mile Measure Up?, supra note 3. ductivity, or a loss of labor productivity, on a given project
5. Id. by comparing identical activities on impacted and nonim-
6. Tong Zhao & J. Mark Dungan, Proving Lost Productiv- pacted sections of the project in order to ascertain the loss
ity in International Construction Claims, 31 Intl L.Q., no 2, of productivity resulting from the impact. W. Schwartz-
Fall 2014, at 11. kopf & J. McNamara, Calculating Construction Damages
7. Id. at 12. 64 (2001). Fundamental to the application of this meth-
8. Andrew D. Ness, Delay, Suspension of Work, Accelera- odology is the calculation of labor productivity ratios,
tion and Disruption, in Federal Government Construction which is derived by dividing the actual amount of hours
Contracts, ch. 19, at 55859 (Aaron P. Silberman et al. eds., on the activity being compared and the actual quantities
2d ed. 2010) (emphasis added; bracketed language added). of work performed on that activity.Id. at *19293.
9. Id. (citing P.J. Dick, Inc., V.A.B.C.A. No. 5597 et al., 01-2 After a careful review of the experts analysis, however,
B.C.A. (CCH) 31,647, revd on other grounds sub nom. P.J. the Greenmoor court found the measured mile wanting for
Dick, Inc. v. Principi, 324 F.3d 1364 (Fed. Cir. 2003) (brack- failing to do the proper comparison of the unimpacted and
eted language added). impacted periods, to link up the purported cause and effect
10. See, e.g., Parson-UXB Joint Venture, A.S.B.C.A. No. of the impacts, and to account for the subcontractors own
56481, 12-1 B.C.A. (CCH) 34,919 (granting a Daubert motion inefficiencies.
to strike the testimony of the governments expert); Reflectone, 37. 2013 Mass. Super. LEXIS 230 (Dec. 19, 2013).
A.S.B.C.A. No. 42363, 98-2 B.C.A. (CCH) 29,869 (casting 38. Id.
aspersions on both the governments and the claimants experts 39. 2013 U.S. Dist. LEXIS 1673 (E.D. Tenn. Jan. 4, 2013).
on Daubert grounds, though, nevertheless, considering the tes- 40. Id.
timony of the experts on their merits). 41. 416 B.R. 801 (S.D. Fla. 2009).
11. Hensel Phelps Constr. Co., A.S.B.C.A. No. 49270, 99-2 42. E.N.G.B.C.A. Nos. 6348, 63866391, 00-2 B.C.A. (CCH)
B.C.A. (CCH) 30,531. 31,000.
12. Id. (emphasis added; language in brackets added). 43. Id.
13. Id. (emphasis added). 44. Id.
14. 73 Fed. Cl. 294 (2007). 45. Id.
15. Id. at 300 (emphasis added). 46. Id.
16. Id. at 591. 47. Id.
17. 6 Philip J. Bruner & Patrick J. OConnor Jr., Bruner 48. Id. (emphasis added; bracketed language added).
& OConnor on Construction Law, ch. 19, 101 (2015) (Rem- 49. Id.
edies and Damage Measurements). 50. 67 Fed. Cl. 124 (2005).
18. Dwight Zink, The Measured Mile: Proving Construction 51. Id. at 14748.
Inefficiency Costs, 28 Cost Engg, no. 4, Apr. 1986, at 19. At 52. Id. at 150.
the time of this article, Mr. Zink, a civil engineering graduate 53. What Is Cost Engineering?, AACE Intl, http://www.
of Villanova University, was a vice president for management aacei.org/aboutUs/whatIsCE.shtml.
services at Hill International. 54. As the U.S. Court of Federal Claims stated in Alost v.
19. Ness, supra note 8, at 559. United States, 73 Fed. Cl. 480, 504 (2006):
20. In this connection, see In re Electric Machinery Enter- Rule 702 provides that an expert may testify in the form
prises, Inc. v. The Hunt Construction Group et al., 416 B.R. of an opinion if: (1) the testimony is based on sufficient
801 (S.D. Fla. 2009), to be discussed infra. facts or data; (2) the testimony is the product of reliable
21. Becoming Certified, AACE Intl, http://www.aacei.org/ principles and methods; and (3) the expert applied the prin-
cert/becomingCertified.shtml. ciples and methods reliably to the facts of the case. Daubert
22. Zhao & Dungan, supra note 6, at 12. also provides several factors to determine whether expert
23. 671 F.2d 539 (D.C. Cir. 1982). testimony is admissible: (1) whether the experts theory or
24. Zink, supra note 18. technique can be tested; (2) whether the experts theory
25. A.S.B.C.A. No. 33394, 97-2 B.C.A. (CCH) 29,184. or technique has been subjected to peer review; (3) what
26. 671 F.2d 539. the rate of error for the theory or technique is; and (4)
27. A.S.B.C.A. No. 48398, 01-2 B.C.A. (CCH) 31,428. whether the theory or technique is generally accepted in
the scientific community. *505 509 U.S. at 593595, 113

Published in The Construction Lawyer, Volume 35, Number 2, Spring 2015 2015 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 16
S. Ct. 2786. [Emphasis added.] at Penn State University, Professor Minchin was an assis-
Interestingly, though the court in this instance found the tant professor of engineering at the University of Florida,
experts analysis wanting, it admitted the testimony anyway and Mr. Chen was a graduate research assistant at Iowa State
for its weight. University.
55. G.S.B.C.A. No. 14340, 99-1 B.C.A. (CCH) 30,280. 63. H. Randolph Thomas & Victor E. Sanvido, Role of
56. P.J. Dick, Inc., V.A.B.C.A. No. 5597 et al., 01-2 B.C.A. the Fabricator in Labor Productivity, 126 J. Constr. Engg
31,647, revd on other grounds sub nom. P.J. Dick, Inc. v. Prin- & Mgmt. 358 (2000). See supra note 61 for the credentials
cipi, 324 F.3d 1364 (Fed. Cir. 2003); James Corp. d/b/a James of Professor Thomas. Professor Sanvido was a professor of
Constr. v. N. Allegheny Sch. Dist., 938 A.2d 474 (Pa. Commw. architectural engineering at Penn State University at the time
2007). of this article.
57. 67 Fed. Cl. 124. 64. H. Randolph Thomas, David R. Riley & Victor E. San-
58. As noted in In re Electric Machinery Enterprises, Inc. v. vido, Loss of Labor Productivity Due to Delivery Methods and
The Hunt Construction Group, 416 B.R. 801 (S.D. Fla. 2009), Weather, 125 J. Constr. Eng & Mgmt. 39 (1999).
the prime contractor sought unsuccessfully to undermine a 65. William Ibbs & Min Liu, Improved Measured Mile Anal-
subcontractors modified total cost claim by asserting that the ysis Technique, 131 J. Constr. Engg & Mgmt. 1249 (May
contractor could and should have done a measured mile anal- 2005). At the time, Professor Ibbs was a professor of construc-
ysis in lieu thereof. tion management at the University of California at Berkeley
59. Compare Pebble Bldg. Co. v. G. J. Hopkins, Inc., 223 and Mr. Liu was a doctoral student at the University of Cali-
Va. 188, 288 S.E.2d 437 (1982) (approving of the use of the fornia at Berkeley.
National Electrical Contractors Association Manual to support 66. Tong Zhao & J. Mark Dungan, Improved Baseline
a subcontractors labor inefficiency estimate), with Norment Method to Calculate Lost Construction Productivity, 140 J.
Sec. Grp., Inc. v. Ohio Dept of Rehab. & Corr., 2003-Ohio- Constr. Engg & Mgmt. 06013006 (Feb. 2014) [hereinafter Zhao
6572, 2003 WL 22890088 (Ohio Ct. Cl. 2003) (rejecting both & Dungan, IBM].
the National Electrical Contractors Association Manual and 67. Zink, supra note 18.
the Mechanical Contractors Association Manual as proof of 68. Id. at 2122.
lost labor productivity). For an interesting discussion on the use 69. See supra notes 6166.
of industry studies, see Mark G. Jackson, Carl W. LaFraugh 70. H. Randolph Thomas & Victor E. Sanvido, Quantifi-
& Robert P. Majerus, Using Industry Studies to Quantify Lost cation of Losses Caused by Labor Inefficiencies: Where Is the
Productivity, Constr. Briefings, no. 12, Dec. 2001. Elusive Measured Mile?, 1 Constr. L. & Bus., no. 3, 2000, at 1, 3.
60. See Zink, supra note 18. 71. See Gulezian & Samelian, supra note 61.
61. Ronald Gulezian & Frederic Samelian, Baseline Deter- 72. See Ibbs & Liu, supra note 65.
mination in Construction Labor Productivity-Loss Claims, 19 73. Id. at 125152.
J. Mgmt. Engg 160 (2003). At the time, Mr. Gulezian was a 74. Id. at 124950.
lecturer in statistics at the Wharton School of the University 75. Id.
of Pennsylvania and Mr. Samelian was a senior vice president 76. Id. at 125052.
of Hill International, Inc. 77. Id. at 1255.
62. H. Randolph Thomas, R. Edward Minchin Jr. & Dong 78. See Zhao & Dungan, IBM, supra note 66, at 06013006-3.
Chen, The Role of Workforce Management in Bridge Superstruc- 79. Id.
ture Labor Productivity, 19 J. Mgmt. Engg 9 (2003). At the 80. Id.
time, Professor Thomas was a professor of civil engineering 81. Id. at 06013006-2.

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thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 17