Construction Delay Claims, Seventh Edition

Construction Delay Claims, Seventh Edition, addresses the various aspects of disputes and claims arising from postponed and prolonged project performance. This new edition presents the most thorough and detailed review of delay claims liability available, including a complete description of the entire process for filing and pursuing claims, along with numerous cases and analyses. This resource also includes invaluable information about the most effective use of construction schedules to avoid delays or to prove their impact if they do occur.

The following new developments and issues are included in the Seventh Edition:

• New sections on liability insurance, builder’s risk insurance, and professional liability insurance.
• Dealing with the risks and impact of epidemics and pandemics.
• New methods of as-built schedule analysis.
• Because of the economic loss doctrine, one subcontractor may not be directly liable to another subcontractor for the delays it caused.
• Rare cases of courts using bar charts to evaluate construction delays.
• Courts conceding to the validity of a somewhat less categorical adherence to the critical path method.
• Disputes related to the expedited fabrication and delivery of material and parts on a fast-track project.
• Public-Private Partnerships and the shift of the risk of cost increases, delays, and revenue performance from the public onto private investors.
• Documenting and demonstrating the quantum of a disruption claim to the level of certainty required by applicable law.

Note: Online subscriptions are for three-month periods.

Previous Edition: Construction Delay Claims, Sixth Edition, ISBN 9781454887874

Chapter 1: Delay

• What Is Delay?
• Elements of Delay Analysis
• What Is Disruption?
• What Is Acceleration?

Chapter 2: Addressing Delay and Disruption in the Contract

• Introduction
• Time Is of the Essence Clause
• Contract Performance Period
• Substantial Compliance
• Early Occupancy
• Interim Milestones
• Time Extensions
• Notice Provisions
• Scheduling Provisions
• Coordination Clauses
• Changes and Variations Clauses
• Differing Site Conditions Clause
• Suspension of Work Clause
• Termination Clauses
• Liquidated Damages
• No-Damages-for-Delay Clause

Chapter 3: Responsibility for Delay

• Introduction
• Owner-Caused Delay
• Designer-Caused Delay
• Contractor-Caused Delay
• Subcontractor-Caused Delay
• Delay Not Caused by Parties to the Design and Construction Process
• Construction Manager-Caused Delay

Chapter 4: Effects of Delay

• Introduction
• Preventing Early Completion
• Acceleration
• Lost Productivity and Efficiency
• Re-scheduling and Re-sequencing
• Increased Time-Related Costs
• Third-Party Claims
• Abandonment and Termination
• Other Effects of Delay

Chapter 5: Disruption Costs and Lost Labor Productivity

• Introduction
• Lost Efficiency Explained
• Obstacles to Recovery for Lost Productivity Costs
• Judicial Recognition of Lost Productivity Costs
• Causes of Lost Efficiency
• Preserving the Right to Collect Lost Productivity Costs
• Proving Lost Productivity Claims
• Lost Productivity Damages
• Conclusion

Chapter 6: Acceleration

• What Is Acceleration?
• Directed and Constructive Acceleration
• Requirements for Acceleration Claims
• The Obligation to Accelerate
• Constructive Acceleration
• The No-Damages-for-Delay Clause and Acceleration
• Acceleration Costs
• Calculating Lost Productivity Caused by Acceleration
• Identifying Inefficiency Costs in the Field

Chapter 7: Project Delivery Methods and Delay Claims

• Project Delivery Methods
• Design-Bid-Build
• The Fast Track
• Multiple Prime Contracting
• Construction Management
• Design-Build
• Turnkey Construction
• Design-Build-Operate-Maintain
• Integrated Project Design
• Comparing the Potential for Delay

Chapter 8: Recognizing and Dealing With Delays and Other Disruptions

• Introduction
• Predicting the Likelihood of Delays and Claims
• Recognizing Delays
• Mitigating the Effects of Delays and Disruptions
• Dealing with the Underlying Causes of Delays and Disruptions
• Notice
• Accumulating Delay and Disruption Cost Data
• Documenting Delay
• Documenting Acceleration
• Documenting Productivity Losses
• Assessing Liquidated Damages

Chapter 9: Processing Claims

• Introduction
• Submission of the Claim
• Claim Negotiation
• Approval Without Dispute
• Releases
• Processing the Disputed Claim

Chapter 10: Analysis of Claims

• Introduction
• Issue Identification
• Schedule Analysis
• Productivity Analysis
• Document Analysis
• Analysis of Cost
• Documenting the Evaluation

Chapter 11: Using the Schedule to Prove Delay and Disruptions

• Why Use a Schedule?
• Using Bar Charts and Network Diagrams
• Other Scheduling Methods
• Court Acceptance of Bar Charts and Network Diagrams
• Demonstrating Schedule Reliability
• Manipulation of the Schedule
• Methods of Schedule Analysis
• Choosing a Schedule Analysis Method
• Apportioning Concurrent Delays
• Using the Schedule to Prove Out-of-Sequence Work and Other Disruptions

Chapter 12: Delay Damages

• The Importance of Proving Damages
• Evolution of Delay Damages in Public Construction Contracts
• Characterizing Delay Damages
• Damage Calculation Theories
• Extended General Conditions
• Home Office Overhead
• Idle Equipment Costs
• Lost Productivity
• Escalation
• Interest
• Punitive Damages
• Lost Profits
• Recovery of Attorneys' Fees in Disputes with the Federal Government
• Recovery of Attorneys' Fees in State Court Actions
• Recovering Attorneys' Fees as a Business Cost
• Cost of Claim Preparation
• Bond Fee and Insurance Premiums
• Non-recoverable Delay Damages
• Owner's Damages
• Mitigation
• Checklist for Delay Costs

Chapter 13: Establishing the Basis of Liability

• Introduction
• Breach of Express Promises in Contract
• Breach of Implied Promises in Contract
• Anticipatory Repudiation
• Warranties and Guarantees
• Indemnities
• Negligence
• Fraud and Misrepresentation
• Strict Liability in Tort
• Violation of a Statute
• Selection of Remedies
• Cardinal Changes
• The Burden of Proof

Chapter 14: Dispute Resolution Forums

• Introduction
• Civil Courts
• Arbitration
• Special Claims Courts and Administrative Boards
• Mediation
• Mediation-Arbitration
• Mini-Trials
• Disputes Review Boards
• Adjudication in the United Kingdom

Chapter 15: Sureties and Delay Claims

• Introduction
• Payment Bonds
• Performance Bonds
• Surety's Recovery of Delay Damages
• Surety's Obligation to Completing Contractor

Chapter 16: Avoiding and Minimizing Claims

• Introduction
• Predicting the Potential for Claims
• Claims in the Construction Industry
• The Designer and the Design
• The Contractor
• The Contract
• Project Scheduling
• The Owner
• Claims Administration

Table of Cases

Index