I recently had the pleasure of serving as an expert on two concurrent delay and disruption cases that proved to provide some interesting insights into the nuances of delay and disruptions experienced by the owner and the contractor. In one instance, I worked for a subcontractor, in the other – ownership. In this sense, the two cases mirrored each other. At first, it felt as if I was enjoining opposing arguments for the same type of claim from opposing perspectives.
In the first case, ‘Case A,’ I provided my expertise in delay and disruption to a carpentry contractor who was severely impacted by delays and disruptions created by the prime contractor. From the subcontractor’s perspective, he had been contracted to fit up a school for a duration of six-months, which seemed plausible at the time.
Instead, he experienced delays that strung him along for two-years, during which he could achieve no continuum: the prime contractor had lost control of the project owing to defects that had a rolling affect on trades. Instead of a workmanlike schedule, contractors were asked to perform small sequences with little or no notice, until they were inevitably disrupted by access issues or other trades.
The contractor tried to accommodate the mayhem by going along with the program until it soon became a losing proposition. The prime contractor held payments in abeyance in order to keep the contractor on board. As it were, the subcontractor’s contract was too competitive to close, leaving the prime little choice but to squeeze him and other trades.
In this case, I was able to establish that the prime contractor was in breach of his contract owing to his failure to provide timely and reasonable access to the job site. Furthermore, the prime had lost control of the schedule and order of installations to the extent that utter chaos ensued for the eighteen-months extension, a delay for which the trades were not compensated. The evidence and expert report compelled the principals into a settlement that more or less made the tradesman whole.
‘Case B’ also involved a contractor experiencing delay and disruption, however, for this assignment I worked for ownership. The contractor was asking for delay damages in excess of double his original contract. The complaint stated that he was forced to log extra resources on account of access issues: the structural program interfered with his access to the site to set in place equipment.
From my perspective, the coordination issues pertained exclusively to the means and methods of the contractors involved, and that if delay damages were to be made, ownership bore no responsibility. Indeed , construction documents did not address the order or sequence of installations, and relied on the contactors’ expertise.
The contractor did not take measures to ameliorate or safeguard the project from losing more ground – with the ultimate intent of taxing ownership with a hefty backcharge. I was able to demonstrate how the contractor was responsible for creating and exacerbating the delays to the project, with the expectation of being reimbursed for losses that he was the sole cause of. Happily, Case B also resulted in a settlement to my client’s satisfaction.
