Proving Impacts to Critical Path to Defeat Liquidated Damages Assessment

Architect carrying plans through corridor

The burden falls on the contractor.

December 16, 2019
David Adelstein - Florida Construction Legal Updates

When a contractor is staring down the barrel of an owner’s assessment of liquidated damages, the burden will fall on the contractor to establish that the delay was attributable to the owner and the owner’s agents. The contractor will want to do this not only to defeat the assessment of liquidated damages, but because it will want to establish that the delay caused it to incur extended field overhead (general conditions) for which the owner is responsible. A contractor supports its burden by proving the impacts to its critical path. “In general, proving an allegation of government-caused delays without a means of showing the critical path is a steep prospect.” James Talcott Construction v. U.S., 2019 WL 1040383, *8 (Fed. Cl. 2019) (unreported opinion) (finding that because contractor did NOT present a critical path analysis it could not support its claim for delay caused by the government).

Avoiding the assessment of liquidated damages means the contractor needs to support that it encountered excusable delay and it is/was entitled to an extension of time to complete the project.

Mr. Adelstein may be contacted at dma@kirwinnorris.com



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