Tag Archives: credibility

CREDIBILITY MATTERS…EVEN IN DELAY CLAIMS

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Credibility matters. Here’s another example involving a delay claim on public private partnership delivery method.

The project agreement required claims to be tried by a hearing examiner. The public private partnership developer (for lack of a better term) submitted delay claims that it contended were caused by Miami-Dade County. The hearing examiner awarded the developer delay time and compensation. On appeal, the County argued that the delays awarded by the hearing examiner were concurrent critical path delays with other delays caused by the developer’s team (the developer’s contractor). This was demonstrated by the fact that in an attempt to mitigate the County delay, the contractor’s incorporated a schedule fragnet into its schedule to mitigate delay that showed the critical path was driven by events deemed caused by the contractor. This was also reported in the contractor’s monthly updates. The developer argued that its mitigation plan did not work and, thus, the schedules showed a hypothetical delay caused by the contractor when, in actuality, it was the County-caused delay that drove the critical path. The hearing officer agreed with the contractor.

[The developer’s] primary argument is that it implemented a “schedule fragnet” in an attempt to mitigate the delay caused by [the County caused delay]. This mitigation plan was incorporated into the monthly schedule, making it appear that [contractor caused events] were on the critical path. However, once [the  contractor] determined that the mitigation plan would not be feasible, it removed this “fragnet” from the schedule. Once the “fragnet” was removed, [the County delay] reemerged as the critical path driver. Thus, as [the developer] maintains, while it appeared that [the contractor caused events] caused concurrent critical path delays, it was only a mirage (i.e., a “hypothetical” delay) because the mitigation plan did not work. Therefore, [the developer] contends that  [the County delay] was, in reality, the sole critical path delay that created the 224-day compensation event.

The County counters [the developer’s] argument by pointing out that the contemporaneous monthly updates showing [the contractor’s events] as critical reflect what actually drove the schedule, and that the delays shown cannot be reduced with a hindsight reconstruction.

We first note that there is no factual dispute between [the developer] and the County. The dispute is fundamentally methodological. Which position would succeed depended on whether the Hearing Examiner chose to accept [developer’s expert’s] method over the County’s. [The developer] asked the Hearing Examiner to disregard six of nine contemporaneous monthly updates that reported that [the contractor caused events] were critical as “a hypothetical mitigation byproduct.” This was a credibility and methodology determination that the Hearing Examiner resolved in favor of [the developer]….

Miami-Dade County v. Plenary Justice Miami, 2026 WL 2496649 (Fla. Cir. Crt App. Div 2026) (unreported).

 

Here, the Hearing Officer did not base its opinion on what the monthly schedule updates showed, but on the actuality of what occurred as opined by the credibility of witnesses and particularly the expert. Hence, credibility mattered!

 

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.

 

LACK OF CREDIBILITY CAN DESTROY A CLAIM

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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.