…MORE ON DELAY CLAIMS AND THE BURDEN OF PROOF SUBSTANTIATING DELAY

Posted on February 23, 2025February 23, 2025 by David Adelstein

How about some more on DELAY claims and the burden of proof substantiating delay.

Delay claims can no doubt be complex – factually and legally. They warrant expert opinions further bolstered by fact witness testimony from the folks that lived the details and issues. If you need assistance with a delay claim, make sure you have the right representation to best position the claim, the arguments, and the burden of proof to substantiate the claim. Otherwise, you’ll be navigating murky waters in dealing with issues and facts that rarely will be one-sided.

Claims relating to delay can be a driving item on construction projects with back-and-forth positions / arguments and differing expert opinions. From the contractor’s perspective, to recoup time and money, the delay needs to be excusable and compensable. Below is a snippet from the Court of Federal Claims explaining the contractor’s burden in proving an excusable, compensable delay:

“[N]ot all delays are excusable, and furthermore, not all excusable delays are compensable.” Compensable delay is delay where “the government [is] the sole proximate cause of the contractor’s additional loss, and the contractor would not have been delayed for any other reason during that period.” Sequential delay is defined as delay “where one party and then the other cause different delays seriatim or intermittently.” “If a period of delay can be attributed simultaneously to the actions of both the [g]overnment and the contractor, there are said to be concurrent delays, and the result is an excusable but not a compensable delay.” Plaintiff “has the burden of establishing by a preponderance of the evidence” the existence of any excusable delay, compensable or otherwise

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A compensable delay analysis requires the Court to look at each specific instance of excusable delay plaintiff is entitled to and determine if the government is “the sole proximate cause of [plaintiff]’s additional loss, and the contractor would not have been delayed for any other reason during that period.” Consequently, the Court cannot decide whether plaintiff is entitled to any compensable delay until it decides if plaintiff is entitled to excusable delay. Further, the government’s blanket assertion that any excusable delay caused by weather, logs, clay, or debris was concurrent with plaintiff’s delayed start, defective equipment, project planning, and personnel management is unavailing because it does not assess each specific instance of excusable delay to which plaintiff is entitled. (“[I]n the event of concurrent delays, the contractor ‘can attempt to prove the portion of the delay attributable to the government[ ] that was separate and apart from the contractor’s delay.’ ”). The government correctly states, and plaintiff acknowledges, plaintiff “has the burden of establishing by a preponderance of the evidence” the existence of any excusable delay, compensable or otherwise.

Marine Industrial Construction, LLC v. U.S., 158 Fed.Cl. 158, 207 (Fed.Cl. 2022) (internal citations omitted).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

A RETROSPECTIVE AS-BUILT SCHEDULE ANALYSIS CAN BE USED TO SUPPORT DELAY

Posted on May 8, 2022May 8, 2022 by Edward Garber

Delay claims are part of construction. There should be no surprise why. Time is money. A delay claim should be accompanied by expert opinions that bolster evidence that gets introduced. The party against whom the delay claim is made will also have an expert – a rebuttal expert. Not surprisingly, each of the experts will rely on a different critical path as to relates to the same project. The party claiming delay will rely on a critical path that shows the actions of the other party impacted their critical path and proximately caused the delay. This will be refuted by the opposing expert that will challenge the critical path and the actions claimed had no impact on the critical path (i.e., did not proximately cause the delay). Quintessential finger pointing!

This was the situation in CTA I, LLC v. Department of Veteran Affairs, CBCA 5826, 2022 WL 884710 (CBCA 2022), where the government terminated the contractor for convenience and the contractor claimed equitable adjustments for, among other things, delay. The contractor’s expert relied on an as-built critical path analysis by “retrospectively creating updates to insert between the contemporaneous updates.” Id., supra, n.3. The government’s expert did not do a retrospective as-built analysis and relied on only contemporaneous schedule updates. Id.

The government’s expert testified he was not a fan of a retrospective (after-the-fact) as-built analysis because this analysis can lead to manipulation. He testified that he prefers to rely on contemporaneous schedule updates versus an as-built analysis where activities are added. The contractor’s expert countered by saying the government’s expert wants to ignore as-built facts which would warrant adjustments to contemporaneous project schedules to account for what actually occurred in the field.

Who is right? Is a retrospective (after-the-fact) as built analysis credible? YES, it is. But, in an answering this question, let’s bullet point some key aspects as articulated by the Civilian Board of Contract Appeals, which need to be underscored for importance:

 The contractor “has burden of proving the extent of the delay, that the delay was proximately caused by government [owner] action, and the delay harmed” the contractor. CTA I, supra (citation omitted).

 “Only delay on a project’s critical path results in overall delay.” Id.

 “As as-built critical path that reconstructs schedule updates is an acceptable methodology” “[A] rigorous ‘as-built’ approach- reviewing contemporaneous evidence in hindsight to trace the activities on the actual, longest path to completion-has been endorsed by government contracts tribunals.” Id.

 “Because we must determine why a project lasted as long as it did, we [the Board] want to know the path to the latest work – including the critical work immediately preceding that work, and just before that, and so on.” Id.

 “We reject [the government’s] accusation that retrospectively adjusting as-built schedules based on project documentation or other evidence necessarily turns the schedules into ‘fiction.’ There is, to be sure, a heavy presumption that regularly updated, contemporaneous schedules are the best evidence of project progress.” Id.

 “[F]orensic schedule analysis is ‘both a science and an art’ and ‘not a magic wand’ but a set of techniques requiring ‘the application of an expert’s well-considered judgment in evaluating the logic of underlying the various pieces of information that support the analysis.’” Id.

 Even if relying on an as-built analysis, there needs to be persuasive contemporaneous project documents – “[e]xpert opinions offered on certain matters that…are not supported by the record tend[] to cast a shadow on the value of other opinions concerning issues where the underlying factual matters were less clear.” Id. (citation omitted) (discussing aspects of contractor’s experts opinion that relied on an unknown extent of hindsight with interviews of the contractor’s project team which the government and the Board were not privy, and where there was not persuasive contemporaneous evidence).

DIFFICULT TASK FOR COURT TO ANALYZE DELAY AND DISORDER ON CONSTRUCTION PROJECT

Posted on August 8, 2021August 8, 2021 by Edward Garber

One of my favorites quotes from a case, and I am sure others in the construction industry feel the same way or can relate, is from the District of Columbia Court of Appeals in Blake Construction Co., Inc. v. C.J. Coakley Co., Inc., 431 A.2d 569, 575 (D.C. 1981):

We note parenthetically and at the outset that, except in the middle of a battlefield, nowhere must men coordinate the movement of other men and all materials in the midst of such chaos and with such limited certainty of present facts and future occurrences as in a huge construction project such as the building of this 100 million dollar hospital. Even the most painstaking planning frequently turns out to be mere conjecture and accommodation to changes must necessarily be of the rough, quick and ad hoc sort, analogous to ever-changing commands on the battlefield. Further, it is a difficult task for a court to be able to examine testimony and evidence in the quiet of a courtroom several years later concerning such confusion and then extract from them a determination of precisely when the disorder and constant readjustment, which is to be expected by any subcontractor on a job site, become so extreme, so debilitating and so unreasonable as to constitute a breach of contract between a contractor and a subcontractor.

Do you agree with this sentiment? The reality is that retrospectively analyzing delay on a complicated construction project with numerous moving parts on a day-by-day, hour-by-hour, basis is no easy feat. It is not easy for the parties and certainly not easy for courts to unravel. With every party claiming delay based on a retrospective analysis there will be another party with either a different delay analysis or providing credible cross examination as to flaws with the delay analysis. The same bodes true with loss of productivity / inefficiency claims and the particular case-specific facts are important, preferably with evidence such as photos, videos, notifications, daily reports, manpower reports, etc., supporting the facts. But the facts are complicated, and the delay analysis is complicated, and it is a difficult task for a trier of fact to unravel these facts.

This case dealt with a dispute between a prime contractor and a fireproofing subcontractor. The subcontractor claimed its work was hindered for a variety of reasons. In other words, the subcontractor was impeded from working efficiently and it was incurring unanticipated costs – the hallmark of a lost productivity or inefficiency claim. The subcontractor sent notice to the prime contractor that it would be suspending its operations and did exactly that resulting in the prime contractor completing the subcontractor’s scope of fireproofing work. A lawsuit arose and the trial court found the prime contractor liable to the subcontractor. The trial court found the prime contractor breached implicit obligations in the subcontract as it (i) did not provide the subcontractor a clear and convenient work area that impeded the subcontractor’s work causing the subcontractor to incur additional sums, (ii) failed to reasonably sequence the work, and (iii) provided bad supervision as other trades damaged in-place fireproofing due to poor scheduling and certain space heaters belonging to the subcontractor were stolen. See Blake Construction, supra, at 576-77 (“We are persuaded therefore that the trial judge properly concluded upon this record that these acts collectively and individually constituted a breach of implicit conditions for performance by [the prime contractor] under the subcontract.”).

The appellate court also agreed with the trial court as to the inapplicability of the no-damage-for-delay provision in the subcontract finding delays resulted from active interference “largely due to [the prime contractor’s] improper work sequencing.” Blake Construction, supra, at 579.

The appellate court also found that the measure of damages to be awarded to the subcontractor from the prime contractor “is properly calculated by taking the cost of partial performance incurred [by the subcontractor], which was $598,666.75, and subcontracting therefrom the payment received to date by [the subcontractor] from [the prime contractor], which totaled $242,100. The difference between these two figures is $356,566.75, and constitutes the damages for which [the prime contractor is] liable to [the subcontractor].” Blake Construction, supra, at 579.