Q.  We are preparing a claim (which our firm is working on) and in addition to all the costs we have identified we want to assert the government-caused delay made our employees less efficient.  Is this a valid item to include in our claim and how should we quantify it?

A.  A recent article in the September issue of the Nash and Cibinic Report addresses this topic.  Whether caused by delays, interruptions, differing site conditions, different specifications or requirements to accelerate work, loss of productivity is common and several texts and a case approve use of the “measure mile” technique for quantifying this loss.  The measured mile technique compares the productivity of labor in the period that was impacted by the delays or other causes with the productivity in some period where normal productivity was accomplished (hence, “measured mile”).  

Two considerations for using the measured mile are key: (1) the compared work must be “equivalent” – since work is rarely identical “equivalent” has been ruled sufficient;  if not equivalent but in some way comparable, adjustments for the two periods to achieve comparability has been ruled valid and (2) data must be reliable – though the best data to use is from the same contract comparisons with other contracts and use of industry statistics have been held to be acceptable.  Expert industry opinions have also been held to be valid but opinions are useless unless the data is credible.

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