Tag Archives: delay claim

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.

 

PRESENTING A “TOTAL TIME” DELAY CLAIM IS NOT SUFFICIENT

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When presenting a delay-type of claim on a construction project, a claimant MUST be in a position to properly PROVE the claim.  Trying to present a delay claim loosey-goosey is not a recipe for success.  In fact, it can be a recipe for an easy loss. This is not what you want.  To combat this, make sure you engage a delay expert that understands delay methodologies and how to calculate delay and do NOT present a total time claim. Presenting a delay claim using a total time approach, discussed below, makes it too easy to attack the flaws and credibility of the approach.  Per the discussion of the case below, a total time claim with a contractor that used its project manager, versus a delay expert, to support its claim turned the contractor’s claim into a loss.

In French Construction, LLC v. Department of Veteran Affairs, 2022 WL 3134507, CBCA 6490 (CBCA 2022), a contractor submitted a delay claim to the government for almost $400,000. The contractor was hired to construct a two-story corridor to connect hospital buildings.  The contractor was required to be complete within 365 days. It was not.  The contractor was seeking 419 days of delay from the government. The contractor’s “delay expert” was its project manager who compared the contractor’s as-planned schedule to an as-built schedule he prepared for the claim.

“To show how the critical path of contract performance evolved over the life of the contract and how excusable delays impacted that path, a contractor, at a minimum, needs a reasonable ‘as planned’ schedule and an ‘as built’ schedule, which it can incorporate into an analysis to show ‘the interdependence of any one or more of the work items with any other work items’ as the project progressed.” French Construction, supra (quotation and citation omitted).

Unfortunately, because the project manager was not a true delay expert, there were material flaws in his methodology from a critical path causation standpoint and a calculation of delay standpoint.  Basically, which is a big no-no, the project manager did a total time claim by simply taking the delta between as-planned and actual completion dates and focusing on durations while skipping the causation.

Under the ‘total time theory,” the contractor simply takes the original and extended completion dates, computes therefrom the intervening time or overrun, points to a host of individual delay incidents for which defendant was allegedly responsible and which ‘contributed’ to the overall extended time, and then leaps to the conclusion that the entire overrun time was attributable to defendant. The [total time] theory of proving delay is insufficient to meet the contractor’s burden to prove that government-caused delay actually delayed the overall completion of the project. [The contractor’s project manager] testified about the drawing delays and other problems that delayed demolition of the building without providing a sufficient showing that all the days of delay were attributable to this cause….

The remainder of [the contractor’s] delay claim suffers from the same problem. [The project manager] simply subcontracted the planned duration from the actual duration and identified that as the period of delay. [The project manager], in his report, then generally describes challenges or issues that [the contractor] faced during periods…without any specifics, to those issues.  [The project manager’s] opinions regarding the causes of delay amount to ‘broad generalities and inferences” that are insufficient to carry [the contractor’s] burden to prove compensable delay.

French Construction, supra (internal quotations and 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.