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Explainer: The measured mile approach The measured mile approach is widely used in the evaluation of construction delay claims. It compares the productivity achieved during a period impacted by an event or circumstance, to the productivity of similar work under unimpacted conditions. The unimpacted period is referred to as the ‘measured mile, which is used as a baseline to predict what the output or productivity should have been, had no delay or disruption occurred. Contractors Corner www.thefis.org 21 • Screening of operatives and the need for regulated equipment • Changes in access to site, and • Changes in the accessibility to scaffolded areas and general walkways. The enhanced testing regimes and screening of operatives has meant that work teams have had to leave site when one of them has tested positive for the virus or been symptomatic, this has resulted in self-quarantine measures and the immediate loss of a resource to the works, all impacting on productivity. When considered in respect of the off-site aspect of construction projects then it is self-evident that delays may occur when resources in design offices, manufacturing, fabrication or supply plants and operations are affected by the same issue. So, while it is not an automatic entitlement, it is not unreasonable to expect that the impact of these events will cause delay to the works and a loss of productivity. How to make a claim for loss of productivity The claimant has a number of recognised options with which to submit claims including: • The measured mile approach (see box out explanation) • Industry study, or • Total cost method. To prove the losses in productivity, you can rely on your own data and hence the consistent adage in the construction industry that talks to ‘records, records, records’. The use of records may help a dispute resolver to review the entitlement of the claimant’s submissions, however, where data is difficult to substantiate or worse, flawed and incorrectly applied, then a negative inference may be drawn. The claimant ordinarily asserts that it’s method for calculating disruption is correct and may consider itself exempt from providing more useful data. The problem often caused in this respect is that many claimant’s quantification of losses in productivity differ and the dispute resolver often faces new and innovative attempts to substantiate submissions that vary from those provided in the industry. A claimant is of course entitled to present evidence in any way it feels is appropriate, but a dispute resolver can only interpret this on its merit and evidential burden. It is suggested that the minimum requirement would include: • Recognition of what is comparable between distinct periods of production (for example, pre-COVID-19 and post-COVID-19) • Comparable tables of planned outputs for specific operations • Examination of the planned outputs • Examination of inclusions that demonstrate statutory, legislative and local effects on the planned outputs • Recognition of specific factors within the planned outputs, i.e. attendance at toolbox talks, restriction on working hours • Recognition of specific factors within the actual outputs, i.e. attendance at toolbox talks, restriction on working hours, hand washing, screening, site distancing, restricted access (these vary dependent on location and type of works) • Examination of the actual outputs. If we go further in this concept of proving the pre- and post-position, then we should also consider the programme: • The actual impact on productivity rates 3 • The inclusion in the baseline programme 4 of the included specific factors • The changes to outputs in future works. Loss of productivity and records The immediate impact of social distancing could result in the planned outputs of certain operations being reduced and therefore, a focus on these activities by monitoring output rates will identify the pre- and post-COVID-19 outputs. Evidence of this loss of output would satisfy an evidential burden in this type of claim. The collation of records for a series of agreed activities across the sector would be of immediate assistance to a specialist contractor in establishing a loss in productivity with certainty. If there were to be the contention that outputs vary, then the same records would also demonstrate the areas of work activity where the specialist contractor had improved on previously reduced outputs. An additional consideration to the calculation of outputs may be the provision of resources and the reduction in outputs in gang work for the reasons noted earlier in this article. In the procurement and delivery of materials, specialist contractors ought to record the reduced rate of supply of materials from suppliers and establish common records to evidence the pre-COVID-19 rate of supply. It would be expected that reconciliations of material delivery related to order periods would provide a record, but further support from product manufacturers would provide essential evidence of the downturn following the pandemic. This area has particular regard to the supply of imported materials, fuel prices and the restriction of movement throughout the United Kingdom. The benefits of a reconciliation of the types noted allows the impacts on a programme because of the reduced production rate to be accurately forecast, and a sequence of proposed new activities can be added to the existing » 3 Where productivity is measured as output and not by price 4 The baseline programme provides a data date to impact loss in productivity from