Why do parties claiming delay resist producing the very documents that would prove their claim? The answer is straightforward: those documents often show the claimant caused the delay, or that no compensable delay existed at all. Full document production is not just a discovery obligation; it is the first test of whether the claim has merit.
Proving a delay claim — and defending against one — requires documents, methodology, and proof. All three are governed by a well-developed body of law that arose primarily in the federal courts, driven by the nature and scale of government construction projects. State courts, arbitrators, and private disputants have widely adopted its standards. (See Stimmel, Stimmel & Roeser, Construction Delay and Damages Analysis and Critical Path Methodology in Proof, stimmel-law.com; Branca and Foux, A Journey Through Delay and Disruption Claims Against the Government, 43 Construction Lawyer No. 3 (ABA Forum on Construction Law, Summer 2024); Katz, McConnell, Salamirad and Sargent, Understanding Construction Scheduling: A Critical Path to Successful Claims Handling, TIPS Law Journal (ABA Tort Trial & Insurance Practice, Fall 2022).)
People will say anything to avoid responsibility for their conduct. The construction industry recognized this long ago; hence the axiom: "If it's not in writing, it didn't happen." Contemporaneous documentation lights up the truth. As Trauner observed: "The process of assigning liability for a delay requires a thorough review of all project documentation to find out what factors influenced the performance of the specific activity." (T. J. Trauner, Jr., Construction Delays, Ch. 2 Methodology of Analyzing Delays p. 35 (1990 RS Means)(underlining added).)
Whether no overall project schedule was produced, or schedules exist but are incomplete or reflect manipulated logic, the project's actual progress must be established from underlying project documents. Only those documents reveal the actual start and completion dates of activities and the reasons why activities were sequenced or delayed the way they were. An investigation of all project documents is therefore warranted, including correspondence between the contractor and the owners, correspondence with all subcontractors, subcontract agreements directed to each subcontractor, purchase orders, payment records for payments to subcontractors and suppliers and the subcontractor invoices, supplier invoices, daily reports, payment requests to the owners, all other cost records; photographs and video; project logs; and labor records. (See Trauner, Jr. et al, Construction Delays 2nd ed., Ch. 5 Delay Analysis with No Schedule (2009 Elsevier Inc.); Steven Pinnell, How to Get Paid for Construction Changes, Ch. 8 Obtaining and Organizing Documents for Review (1998 McGraw-Hill); Wickwire, Driscoll, Hurlbut, and Hillman, Construction Scheduling: Preparation, Liability, and Claims, Ch. 14(A) Claim Investigation, Data Sources (2003 Aspen Publishers, Inc.); Bramble and Callahan, Construction Delay Claims, Ch. 10.05 Document Analysis (2000 Aspen Law & Business)).
The production of these documents is burdensome. But so is a delay claim. The claimant must prove the existence and extent of the delay; the delay was proximately caused by the other party; the claimant was injured by the delay; and there was no concurrent delay. (Dale and D'Onofrio, Construction Schedule Delays, §3.1 Burden of proof p. 115 (2014 Thomson Reuters) citing George Sollitt Const. Co. v. U.S. (2005) 64 Fed. Cl. 229, 238).
As to the delay's existence and extent, the claimant must prove the overall completion of the project was delayed, not just a discrete element of the work. (R. P. Wallace, Inc. v. U.S. (2004) 49 Fed. Cl. 110, 132) "Broad generalities and inferences to the effect that defendant must have caused some delay and damage because the contract took . . . days longer to complete than anticipated are not sufficient." (Wunderlich Contracting Co. v. U.S. (1965) 351 Ct. Cl. 180, 199) Conclusory statements such as "if it had not been for this delay . . . we would have finished it six months earlier" are legally insufficient to prove causation. (Interstate General Government Contractors, Inc. v. West (1993) 12 F.3d 1053, 1060) Rather, the claimant must demonstrate with reasonable certainty the extent of unreasonable delay which resulted from the other party's actions. (Wunderlich Contracting Co. v. U.S., supra, 351 Ct. Cl. p. 199.)
It follows that modern tribunals rely on critical path analysis for determining the existence and extent of delay. "The reason that the determination of critical path is crucial to the calculation of delay damages is that only construction work on the critical path had an impact upon the time in which the project was completed." (G.M. Shupe, Inc. v. U.S. (1984) 5 Cl. Ct. 662, 728) "Without a critical path analysis the court cannot exclude the possibility that the contractor caused concurrent delay on the project. [citation] . . . The court cannot rely on assertions of a contractor, not supported by a critical path analysis of the project, to award critical path delay costs [citation]." (Mega Const. Co., Inc. v. U.S. (1993) 29 Fed. Cl. 396, 435).
The claimant bears the burden of proving its claims. But, as a general rule, the defending party will present a critical path analysis in its defense. To do that, it must have all project documents demanded — not just ones the claimant or opposing party unilaterally determined to be relevant.
