Last week, we reported on the liquidated damages award by the arbitration panel in Athens Generating v. Bechtel. For those readers interested in the schedule and cost aspects of construction disputes, Bechtel also submitted claims for more than 77,000 hours of lost time and loss of efficiency during construction caused by snow days and an unusually severe winter. Because the entire 60 page arbitrators' opinion document was included in the request to the DC Superior Court for confirmation of the award, we get a rare opportunity to learn all the details behind the panel's decision.

In a 10-page "Arbitrator's Opinion #2," the panel provided a detailed analysis of the "Force Majeure" claim, including the notice requirements and the calculations of lost time. Regarding the notice requirement, Athens insisted Bechtel did not meet the contractual notice requirement because it failed to give notice within 30 days of a major storm. However, the arbitrators pointed out that an assessment of abnormal weather for the season could not be made as a result of a single storm -- notice need only be given within 30 days of the conclusion of the season.

After considering the testimony of schedule and cost experts on the various loss of efficiency issues, the panel awarded Bechtel 5,993 hours of 28,414 claimed for lost time due to major snow events, plus 15,404 of approximately 45,000 hours claimed for loss of efficiency. Among the lost of efficiency issues addressed by the panel were lost hours for rewarming, increased absenteeism and travel, failure to mitigate loss by not heating the turbine building, and failure to allocate loss of productivity hours between fine and gross skills.

The arbitrator's 22-page "Final Award" decision -- along with the "Finding of Fact, Conclusions of Law and Other Decisions and Instructions to the Parties," and the "Arbitrator's Opinion #2" -- can be downloaded by paid subscribers to Construction Claims Advisor. Among other things, these exhibits provide insight into how the arbitrators sorted through various types of compensable, excusable, concurrent and "pacing" delays. They also provide an inside look at how EPC contracts are developed and structured, with practical tips on lessons learned.

Advisor subscribers click here to view the complete opinion. (Not available to trial subs.)