SECTION 111 — DELAY CLAIMS

111.01 COMPENSABLE DELAYS — The Department is responsible for delay damages arising only from delays created by its negligent acts or omissions. Unless otherwise specified, assume the risk of damages from all other causes of delay.


111.02 GENERAL CONDITIONS CONCERNING DELAY CLAIMS — Because of the nature and extent of damages arising out of work that has been delayed; of the need for the Department to be made aware of potential delay claims promptly after the cause or causes of delay have arisen so that record-keeping can begin; and of the parties' intent to have all such claims as fully documented as possible, strict adherence to the provisions of this section is an essential condition precedent to filing a delay claim with the Board of Claims.
The following items of damage cannot be included in any delay claim against the Department:

• profit;
• loss of profit;
• labor inefficiencies;
• home office overhead, including but not limited to costs of any kind for home office personnel; and
• consequential damages, including but not limited to loss of bonding capacity, loss of bidding opportunities, and insolvency.


111.03 NOTIFICATION OF DELAY CLAIM — Notwithstanding the provisions of Section 105.01, within 10 days of any negligent act or omission of the Department, notify the Inspector-in-Charge that operations have been or will be delayed and that a claim for delay damages either is going to or might be filed with the Board of Claims. Confirm such notification in writing to the District Engineer within 10 days of such notification to the Inspector-in-Charge.


111.04 PROCEDURES — Upon notifying the Inspector-in-Charge as provided above, keep records, on a daily basis of all non-salaried labor, material and equipment expenses for all operations that are affected by the delay. Identify in such daily records each operation and the station or stations thereof affected by the delay. Daily records of all non-salaried labor, equipment and materials used on operations affected by the delay also will be kept by the Department's forces. On each Monday, compare the previous week's daily records with those kept by the Department and review for accuracy. Report to the District Engineer within 10 days of each such review all disagreements with such records. Refusal or repeated failure to meet to review the Department's records or to report disagreements with such records will create an irrebuttable presumption in favor of the Department that its records are accurate. Claim no delay costs of any kind allegedly incurred, prior to notifying the Inspector-in-Charge that operations have been delayed.
On a weekly basis, prepare and submit to the Inspector-in-Charge written reports containing the following information:

(a) Number of days behind schedule.

(b) Identification of all operations that have been delayed, or are to be delayed.

(c) Explanation of how the Department's negligent act or omission delayed each operation, and estimation of how much time is required to complete the project.

(d) Itemization of all extra costs being incurred, including:

• an explanation as to how those extra costs relate to the delay and how they are being calculated and measured;
• identification of all non-salaried project employees for whom costs are being compiled; and
• identification of all manufacturer's numbers of all items of equipment for which costs are being compiled.

Upon completion of the project, submit to the Inspector-in-Charge and the District Engineer copies of a report containing the following information:

• an itemization and explanation of the measurement and basis of all extra costs being sought, including all reports certified by an accountant;
• a description of the operations that were delayed, and how they were delayed, including the reports of all scheduling experts or other consultants, if any; and
• an as-built chart, CPM scheme or other diagram depicting in graphic form how the operations were adversely affected.

The District Engineer will review the submission and any reports prepared by the Inspector-in-Charge. If, in the opinion of the District Engineer, the Department is not responsible for any delay, a written decision will be given. Comply with the provisions of Section 105.01 if the District Engineer's decision is disputed.
If the District Engineer determines that operations were delayed by the Department, a review of the damages claimed will be made and a written decision will be made by the Department. Comply with the provisions of Section 105.01 if the District Engineer's decision is disputed.
Only expenses for extra non-salaried labor, material, and equipment costs will be considered by the Department in the event it is determined that operations were delayed by the Department. To these costs will be added 10% to cover allocable home office overhead. Likewise, in the event a delay claim is filed with the Board of Claims, only the foregoing expenses may be claimed.
When measuring additional equipment expenses (i.e. ownership expenses) arising as a direct result of a delay caused by the Department, do not use in any way the Blue Book or any other rental rate book similar thereto. Use actual records kept in the usual course of business, and measure increased ownership expenses pursuant to generally accepted accounting principles.

Most Current Supplement

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