Category:Cost Estimates

Construction Cost Estimating and General Contracting Experts are integral to the construction defect litigation practitioner. The Construction Experts Group at Bert L. Howe & Associates provide a comprehensive litigation support solution and construction estimating services to Owners, Developers, Fortune 500 Builders, National Sub Contractors, Insurance Professionals, as well as a variety of state and local government agencies.

For information about forensic cost estimating readers can refer to construction cost estimators

Common disputes in construction claims litigations relate to delay. However, delay claims are among the least understood and confusing claims in the construction industry. The retention of experts with a precise knowledge of the essential elements necessary to support delay claims is an important step impacting the outcome of complex delay and acceleration construction claims.

ABOUT CONSTRUCTION DELAY CLAIMS A delay claim on a construction project corresponds to a period of time for which the project has been extended or work has not been performed due to conditions which were not anticipated when the parties entered into the contract. The most common causes of delay on a project include: differing site conditions; changes in requirements or design; weather; unavailability of labor, market interruptions, material or equipment; defective plans and specifications; and intrusion by the owner.

Such delays often force a contractor to extend its schedule to complete the work required under the contract, as well as to invite additional costs in the performance of said work. Generally, these costs may include: the costs of sustaining an idle workforce and equipment; unabsorbed office expense; lost efficiencies; and general conditions. However, in order to receive an addition of time for project completion, or to recover additional costs, the contractor must meet a number of fundamental requirements.

A delay must be explicable in order to be the basis for an extension of time or additional cost. Categories of excusable delay are often addressed in the contract and typically involve issues beyond the control of the contractor.

Examples of excusable delay include design errors and omissions, owner related changes, unanticipated weather, or other similar circumstances. A non-excusable delay is a delay for which the contractor has assumed the risk under the contract. Often, if a delay appears to be excusable, it will be the responsibility of the contractor if it was foreseeable; it could have been prevented but for the actions of the contractor, or it was caused by the neglect of the contractor.

Construction Delay Claims may be further categorized into compensable and non-compensable delays.

If a delay is compensable, the contractor is permitted to recover compensation for costs of the delay in addition to time extensions to finish the project. Most contracts will include types of delay, which are compensable. The general rule, though, is that if the delay could have been prevented by due care of one of the parties, the party that did not, provide such care is responsible for the additional costs.

The contractor may also be held responsible for the negligent acts of its subcontractors. If the negligent subcontractor is in the chain of privity with the contractor, the contractor cannot recuperate delay damages from the owner, as those delays are the responsibility of the contractor. However, if the subcontractor has an arms length contractual relationship with the owner of the project, the contractor likely will be able to recover, as it was not in a position to prevent the delay. In order to recover damages, a contractor must demonstrate a link between the delay and the resultant damage. The assertion that there was a delay is not sufficient without showing a relationship between the delay and the damages.

When the foregoing criteria are met, a contractor may not be entitled to recovery if there is a concurrent delay effecting completion of the project. A contemporaneous delay is likely to be defined as a secondary, independent delay occurring during the same time period as the delay for which compensation is sought after. If the party looking for increased compensation is at the end of the day responsible for the respective delay, he might not be able to secure any compensation for the primary delay. Some courts, will permit the injured party to attempt to apportion the liability for delay, thus allowing recovery to the contractor for the time frame of the delay, which wasn’t its responsibility.

Apportionment of delay is challenging due to scarce project documentation of the delays in question. Sometimes the most efficient time for a contractor to allocate responsibility to a delay is while the project is ongoing. The ongoing nature of a construction project tends to make analysis and supporting documentation easier to gather and is more efficient than post construction evaluations.

Increasingly sophisticated contractors and legal professional take actions to efficiently facilitate recovery relevant to delay damages/claims incurred on a project. The Construction Experts Group at Bert L. Howe & Associates, Inc., leverages from a group of registered architects, engineers, general and specialty contractors, providing course of construction, and post construction support services to builders and legal professionals involved in construction related delay/acceleration claims.

The Experts Group at Bert L. Howe & Associates, Inc. provides course of construction and post construction inspections, consultation, documentation, trial support and testimony services to the nations most successful builders and construction related litigation firms. Contact us today to discuss your specific support needs.

ABOUT CONSTRUCTION ACCELERATION CLAIMS Acceleration Defined – Acceleration costs are described as those additional costs incurred by a contractor to overcome excusable delays, including those caused by the addition of extensive modifications work, within the time limits originally established in the contract to meet the relatively inflexible completion dates set by the owner/developer. Acceleration costs are paid for multiple shift operations, and other increased operating expenses related to the performance or the work an accelerated time schedule.

Two recognized forms of acceleration claims are actual and constructive. The former is easy to identify: Actual acceleration occurs when the contractor is directed to accelerate its work by adding manpower, working weekends, evenings, etc.

Constructive acceleration does not result from a direct order from the owner, but results the owner’s refusal to allow a rightfully entitled time extension. With constructive acceleration, no order or directive is given, but the contractor is required to accelerate its work in order to keep pace with the job or to complete its work by the contract completion date. A typical acceleration claim situation arises when the contracting officer or architect refuses to act on the contractor’s time extension request, requiring the contractor to accelerate, when in fact the contractor is entitled to the extension.

Another common scenario is when the owner’s agent tells the contractor that it will consider the time extension request at the end of the job. This places the contractor in the predicament of not knowing what to do. If it waits until job completion for the owner agent’s decision, then it runs the risk of exposing it to liquidated damages or other damage claims by the owner if the time extension request is rejected. If it chooses to accelerate, it will normally be entitled to recover its costs on a constructive acceleration claim, provided it notifies the owner it is accelerating the work. The role of the construction cost estimate and estimator is significant to the outcome of any construction claims matter.