International Construction Law Review
CONTRACT REGULATION OF DELAY AND DISRUPTION CLAIMS IN AMERICA
JUSTIN SWEET
Professor of Law Emeritus, University of California (Berkeley) Professor of Law, Netanya Academic College, Israel
SETTING THE STAGE
This paper*
grew out of litigation in San Diego, California in which I participated as an expert witness. The contractor had brought a claim against the City of San Diego. As I reviewed the pleadings of both parties, I concluded that the claimant contractor was asserting a claim for additional expenses it had incurred because it was not able to work, as it had planned, in the most efficient way. My conclusion was based upon phrases in the contractor’s complaint such as “incorrect design information, undisclosed site conditions, owner-initiated design changes and unreasonable delay in approving submittals”. This conclusion was amplified by further language in the complaint stating that: “The Plaintiff’s original plan for the schedule, sequence and performance of the Work … has been delayed.” Finally, the pleadings showed that the contractor was requesting damages for “unplanned additional expenses incurred at the jobsite and at its home office”.
To me this looked like the typical delay and disruption claim based upon inefficient sequencing of the work causing unplanned expenses and adversely affecting productivity. I shall refer to such claims as “D & D” claims.
I reviewed the contract that had been incorporated into the pleadings and the rest of the pleadings. The contract provisions dealing with changes included a cap on overhead and profit and excluded the Eichleay formula as a method to measure extended home office overhead. The City claimed it had compensated the contractor under that provision and owed nothing more.
I concluded that the City did not appreciate the difference between a claim made under the changes clauses and a classic D & D claim. It is one thing to control how changes are priced by limiting overhead and profit. It is another to conclude that such a limitation barred a D & D claim.
We live in a construction world littered with claims for delay and
Pt 3]
Delay and Disruption Claims in the US
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