Initial evaluation of construction claims and disputes

Today’s construction projects, very often with restrictive budgets and aggressive schedules are, by design, undertaken by collaborating professional organizations with competing priorities and objectives. This presents significant risks for contractors, design firms, testing and inspection agencies, and owners alike. Areas of construction performance that can result in claims and disputes are:

• Schedule delays and acceleration measures
• Labor productivity losses
• Cost escalation
• Professional liability
• Contract terminations (convenience and default)
• Breach of contract
• Allegations of fraud or neglect
• Environmental impacts

When defending against, evaluating, or asserting a potential claim, it is essential to quickly clarify the issues of concern, ascertain whether the right documentation and personnel are available to support or defend against the claim, and determine the requisite timeframes for immediate courses of action.

A few basic yet important questions when beginning to evaluate a construction claim are:

• What are the particular events for the issues under dispute?
• What do the relevant contract provisions?
• How did the parties’ actions agree with or conflict with the contract’s requirements?
• What project control documents are available for analysis?
• Are project personnel available to assist in negotiations or provide testimony?
• What other documentation is available to support or rebut the claim?
• What is the overall quality level of the documentation available to support or rebut the claim?
• Is there a strong basis for entitlement or refutation of the claim?
• What are the generally accepted methods or standards to evaluate or rebut the claim?
• Which method or standard should be chosen based on the particulars of the case, and why?
• What degree of exposure or potential quantum of damages does the claim present?
• What are the contract dispute resolution procedures?
• What are the requisite timeframes for the next steps in the resolution process?
• Will expert testimony be required to most effectively assert or rebut the claim?

Determining the answers to these questions as early in the dispute process as possible will enable the project and legal team to more effectively identify risk factors, establish baseline entitlement and quantum of damages, and identify contractual timeframes required to move the dispute through each phase of resolution. This will also provide a systematic and organized approach to moving the dispute toward resolution.