THE LAW AND CIVIL ENGINEERING – FEBRUARY 2018 NEWSLETTER
Delay and Disruption of the Job
by Eugene Bass
Delay and disruption claims are expensive, difficult, and time-consuming disputes to litigate. Delay arises when the project is not completed within the agreed deadline. Disruption occurs when an owner causes a change in the method of construction upon which the contractor based its bid.
A contractor should always be aware of any provisions in the contract addressing claims and limitations on claims. There may be allocations of risk which must be understood. Time and notice requirements are common and must be observed. It is little comfort when a “common sense” basis for a claim is defeated in litigation by a contract clause which specifically limits or eliminates the “common sense” claim.
It is important that both the contractor and owner become aware of any aspects of the project that could cause disruption or delay of the work as soon as possible so that appropriate action can be taken to prevent a problem from developing. It is clearly to the benefit of everyone to avoid having to litigate to finally resolve a claim that could have been easily mitigated by early detection and action.
The owner’s obligations that may result in damages for disruption or delay can include providing adequate plans and specifications, site access, cooperating with the contractor when difficulties or problems are encountered, and making timely progress payments. Any plan discrepancies should be addressed as soon as possible and presented for clarification and resolution along with a realistic assessment of when an answer must be received to avoid any significant delay or disruption cost to the contractor. In addition, an accurate and detailed log should be maintained describing all issues raised and the steps taken to resolve them.
Contractor’s actions which can result in delay and disruption tend to arise from improper planning. The work must be adequately scheduled, sequenced, and coordinated. The inability to build according to the planned sequence can lead to delay and disruption claims. Successful prosecution of delay and disruption claims requires a realistic and complete schedule. It is necessary to schedule and coordinate subcontractors so that they can perform their work with minimal conflict with other trades. Be sure materials are ordered on a timely schedule and that subcontractors adequately man their jobs so that their work can be completed within their allocated time and on schedule.
Architects and engineers may contend that the plans and specifications are complete and that an experienced general contractor should be able to properly read and interpret them. This is an issue that the contractor must be prepared to address.
Litigating delay and disruption claims can be disastrous for all parties and should be avoided if at all possible.