Lack of credibility can undermine your claim in a HUGE way. That lack of credibility can come from a party or a party’s expert. In Appeal of ECC International Constructors, LLC, ASBCA No. 59586, 2025 WL 1357784 (ASBCA 2025), a contractor’s delay expert was construed to have deliberately omitted a key factual event in his analysis that the contractor previously claimed was a delaying event. This fact was a focus of cross examination during an Armed Services Board of Contract Appeals’ proceeding. This omission was noted and gutted the expert’s credibility to the Board:
To demonstrate that the government delayed project performance, [the contractor] relies primarily upon the opinion of [the expert]. To be credible, a contractor’s delay analyst must take into account, and give appropriate credit for, all of the delays that were alleged to have occurred. We have found that the expert] deliberately omitted from the crux of his delay analysis the ECP security changes that—until we ruled against [the contractor] upon that issue—[the contractor] had alleged delayed its performance. That is, [the expert] did not make the ECP security changes the subject of a fragnet, as he did 22 other potential delay events. That renders [the expert’s] opinion not credible, and therefore, not helpful to us or to [the contractor’s] case. We are free to reject expert testimony [that] we find intrinsically unpersuasive … and here, we find [the expert’s] opinion intrinsically unpersuasive.
See, supra, Appeal of ECC International Constructors, LLC.
In construction disputes, not all facts are good and not all facts are bad. You can extrapolate this, in reality, to every dispute. Deliberately omitting bad facts, not telling the truth, or trying to conceal bad facts, can have the effect of killing the credibility on all the good facts. Understanding, appreciating, and addressing the bad facts is always the best way to proceed. You address the good, the bad, and the ugly, and weave this into the theme of your dispute and presentation. There is credibility conceding bad facts in that it adds to the credibility of your good facts. Remember, credibility is key and you don’t want to do anything to undermine your credibility!
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.