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29 N x in utility relocation and WMATA's failure to obtain IR = 200,000 right-of-way access. MH WMATA initially disputed LGS's argument that the Where: delays it experienced were excusable delays that im- Number of lost work day injuries pacted activities on the critical path. It contended that N= and/or illness LGS did not appropriately request and substantiate Total hours worked by all construc- time extensions as required, thus depriving WMATA of MH = tion site employees the opportunity to make informed decisions about 200,000 = Base for 100 full-time equivalent schedule relief before any purported acceleration oc- workers working 40 hours per week, 50 curred. WMATA also disagreed that the delaying events weeks per year claimed by LGS were the cause of the additional costs incurred by LGS and its subcontractors. WMATA at- In addition to a section for safety performance, the tributed some of the delays to the weakness of LGS's contract documents included incentives for early project ability to plan and execute its work, particularly its completion. Early completion is based on the ORD of seeming inability to generate a workable project sched- 975 days. The incentive equals $10,000 for every day to ule in a timely fashion. WMATA also felt that LGS had a maximum of 90 days for each day earlier than the particular difficulty in reaching a productive level on ORD. Accordingly, the maximum incentive allowed by the "learning curve" due to the unique double-box tun- the contract is $900,000. nel construction and the associated steel-box traveler forms called for in the contract. Project Performance After limited discovery, LGS altered its claim theo- In March 2002, WMATA issued a Notice to Proceed ries and argued that the majority of its delays were to LGS. LGS self-performed the majority of the civil and caused by a change to the jet fan design, which had ar- structural work on the project, using several major sub- guably been resolved by a change order at the begin- contractors. It encountered a number of delays, which ning of the project. WMATA defended this theory on a allegedly included access delays, late relocation of utili- variety of grounds, but its primary argument was that ties or work of other WMATA contractors, and delays LGS had failed to provide requisite notice that its loss associated with deficiencies in and/or changes to of productivity claim was based on the jet fan change WMATA's Mandatory Design. During the project, the order--since the weather, utilities, and right-of-way Washington, DC, area experienced severe inclement were the items that had been claimed for years. weather, including excessive rain, a hurricane, and re- The parties decided to conduct a mediation with a cord cold temperatures and snowfall. LGS claimed that retired Contract Appeals judge, with the participation this unusually severe weather--which started in Octo- of representatives from the State of Maryland, the con- ber 2002 and continued through the winter of tract's funding source. The parties exchanged mediation 2003/2004--exacerbated the effect of the delays. LGS position statements and key documents, including ex- claimed that WMATA instructed LGS that it would not pert analyses of the sources of contract delay and the grant time extensions and that LGS must complete the associated performance costs. The parties then met for project by the contractual completion date in December 2 days--in joint sessions and in caucuses with the me- 2004. LGS allegedly undertook a number of measures to diator. The mediator provided his assessment of the accelerate the work and was able to overcome the vari- strengths and weaknesses of their respective positions ous alleged WMATA delays as well as the unusually to both sides in separate, oral discussions. After ad- severe weather, completing the project by the original visement from the mediation judge, LGS and WMATA contract completion date as directed by WMATA. reached a settlement of $9.5 million to resolve all claims In April 2004, LGS sought a time extension and pertaining to the contract; it was subject only to ap- submitted to WMATA an Analysis of Schedule Impacts proval by WMATA's Board of Directors and funding by and Cost Increases, indicating the reasons for the re- the State of Maryland. The State of Maryland ulti- quested extension. It subsequently submitted a $30 mately agreed to pay the settlement amount. After the million Request for Equitable Adjustment in November claim settlement in December 2007, the total project 2004. Attempts to negotiate a settlement were unsuc- budget (for all three contracts) grew from $459,458,604 cessful. In January 2006, WMATA ultimately denied to $468,958,604. virtually the entire claim, and its contracting officer issued a Final Decision that was unacceptable to LGS. VII. PORTLAND SOUTHERN CORRIDOR-- Subsequently, in February 2006, LGS appealed to the PORTLAND MALL SEGMENT Armed Services Board of Contract Appeals and filed a $32 million loss of productivity claim for delay and con- Project Overview structive acceleration, arguing that the project experi- enced delay events that would have delayed the project The Portland Transit Mall is the public transporta- by 197 days but for the acceleration of LGS. The pri- tion network operating in the Portland, Oregon, metro- mary basis for its claims rested on adverse weather, politan area. The light-rail network in this region, although LGS also argued that it was delayed by delays known as the Metropolitan Area Express (MAX), runs