SUBJECT: Construction Delay Claims for South Orange County Community College District
ATTORNEY: William Pate, Partner, Devaney Pate Morris & Cameron, San Diego, CA
EXPERTS: Ted Bumgardner, Hendrik Prinsloo, PhD
It is rare for a highly complex construction delay case to get resolved quickly. It is rarer still for that to happen in just two days of mediation, before the project’s notice of completion was even recorded and in the middle of a global pandemic. But with the help of two of Xpera’s experts, that is exactly what happened recently with a case involving a major public works project in Orange County, CA.
William Pate, partner with Devaney Pate Morris & Cameron in San Diego, has served as general counsel on billions of dollars’ worth of public work, including one of the largest public works projects in Los Angeles County history and the San Diego Community College District’s $1.55 billion bond program.
For this recent case, he was representing the South Orange County Community College District in a case involving a new stadium and sports complex being built at Saddleback College in Mission Viejo. The $50 million design-build project involved the construction of a new 8,000-seat stadium, as well as additional sports fields and training facilities for the school’s high- profile athletic programs.
The project suffered from significant construction delays and cost overruns, complicated by several market factors including steel fabrication problems and labor shortages. To help unpack the situation, Pate called on Xpera founder/chairman Ted Bumgardner and construction delay expert Hendrik Prinsloo.
Not only does Prinsloo have a proven track record of leading large-scale claim assignments, but he has also (quite literally) written the book on construction delay analysis, entitled Delay Analysis Simplified: A Step- by-Step Guide for the Analysis and Formulation of Delay Claims. He holds a doctorate degree in delay analysis and a master’s degree in real estate development, and has over 20 years of experience in construction management and claims consulting. He was the ideal expert to help unravel the delay issues at Saddleback College.
“Delay analysis is all about determining the cause and effect, uncovering what happened and why during the construction process,” said Prinsloo. “It is always a challenging task to piece together the actual events, typically months after the actions occurred, from a mountain of information on a project. But, over the years, I have developed an effective process for simplifying these complicated delay analysis concepts in a manner that makes it easy to understand by the parties involved in a mediation, which can go a long way in finding a successful resolution.”
“As we prepared this case, we relied on Xpera to work through the historical documentation and sort through what was in the original scope of work and what was actually constructed in the field,” said Pate. “We tasked them with getting to the bottom line of what the design-builder was and was not entitled to, and they did a fantastic job.”
In early-September, in the throes of the COVID-19 pandemic, attorneys for the District and design-builder met in Orange County, with all the safety protocols in place, for a two-day mediation. Experts for both sides presented their findings, and in the end, a settlement resolution was worked out that Pate described as a “win-win” for his client.
“It is very unusual to get to the finish line this quickly on such a complicated project,” said Pate. “The project was just wrapping up. We were able to get everyone to agree to mediate and got it resolved right then and there. This would not have been possible without Xpera’s ability to decipher everything and present their analysis in a logical fashion that convinced the design-builder on the appropriate settlement.”
The case was mediated by Jim Roberts, one of the most respected mediators in the region. Xpera has encountered him numerous times over the past 20 years, and the cases tend to be quite complex and challenging. The Saddleback case was no exception.
According to Roberts, if you have five experts, you are going to have five somewhat – or even dramatically – different opinions on any particular situation. At the end of the day, it is important to build consensus among the experts as to the realistic strengths and weaknesses of a case.
“The hallmark of Xpera’s approach is to not only explain their opinions, but to also seek common ground with the other experts in the room,” said Roberts. “This has almost become a lost art in the expert world, where advocacy overtakes consensus-building skills. It is not a matter of whether consensus can be reached, as that is not always possible, but whether or not an effort is made, and if it is done in a way that is productive versus off-putting. In my experience, Xpera’s experts are excellent at this.”
The Xpera team was proud to contribute their expertise to the successful resolution of this case, which resulted in a savings of several million dollars for the District. It is worth noting that the District had an extremely comprehensive construction contract for this project. It even made provisions for the impact of pandemics like COVID-19, which is something seldom addressed in these types of contracts. After what we have all experienced over the past year, you can be sure that will change in the future.
More information about Xpera’s construction forensic services can be found here.