Delay claims are an inevitable part of the construction industry. While claims can protect a contractor’s entitlement to time and cost compensation, they often face rejection due to errors in submission.
In this article, I will explore the common pitfalls in submitting delay claims and how to avoid them to strengthen your position.
1. Failing to Issue Timely Notices
Many contractors overlook the importance of issuing notices immediately after a delay-causing event. Most contracts stipulate strict timelines for submitting notices, and failure to comply can lead to losing entitlement or result in disputes. Reviewing the notice provisions in your contract is a key step. Contractors can create a log to track delay events and send notices within the contractual timeframe. This practice should be a part of your delay management system.
2. Incomplete or Poorly Developed Narratives
A narrative should clearly include cause, effect, and entitlement for the delay events. Vague narratives make it difficult for the consultant or client to understand the event nature and evaluate the claim. A clear narrative should explain
-
- What happened?
- Why did it happen?
- When did it happen
- The Chronology
- What is the contractual basis for the claim?
A claim must be rooted in the contract so link the narrative to relevant clauses. A claim means that the Employer/Consultant failed to fulfil a part of its contractual obligations and the contractor is seeking reimbursement (e.g. extension of time, relief from liquidated damages, additional costs incurred, etc) so make sure that you refer to any relevant clauses.
3. Lack of Supporting Evidence
A claim without documentation is like a story without proof. Common missing items include correspondence, daily reports, MOMs, photos, and other documents such as RFIs, WIRs and MIRs that substantiate the claim. Planning engineers live and breathe the project everyday so it is tempting to assume that the reviewer knows what you know. However, it is not uncommon to have mediation, arbitration and litigation in your project so always assume that the reviewer has no prior knowledge or familiarity with the project. Substantiate everything!
4. Inappropriate Delay Analysis Methods
An effective delay analysis starts with a reliable baseline and well-maintained schedule updates long before the claim is submitted. Therefore, take the time to produce high-quality baseline and schedule updates where the actual progress is consistent with the daily report data. Moreover, ensure compliance with the scheduling best practices which includes, reviewing the out-of-sequence, absence of open-ended activities, etc. When you perform a delay analysis, selecting an appropriate delay analysis method is a key step. Each method has advantages, disadvantages, uses, limitations, strengths and weaknesses. If you choose inappropriate method, your whole claim might be thrown out of the window. There are two main references that cover the delay analysis methods in our industry. These references are: the delay and disruption protocol, 2nd edition published by Society of Construction Law (free for the public) and the RP-29R-03 – Forensic Schedule Analysis published by AACE (free for members only). Although these references are not contractually binding, they are a strong peer review so you can build your case on them. I also recommend that you explain why you selected a specific method and why it is more relevant to your case compared to other methods.
5. Overstating and understating Entitlements
Some claims fail because they overestimate the time or cost impact of the delay. Overstating can lead to disputes, while understating can leave time and money on the table. Delay analysis is both an art and science so take your time to learn it. Ensure that your analysis is based not only on the schedule data but also on logic, facts and common sense.
6. Submitting Claims at the End of the Project
Submitting delay claims long after the delay event has occurred is a common mistake. Delayed submissions reduce the chances of approval and increase the likelihood of disputes because:
- Evidence may no longer be available.
- The claims weren’t submitted promptly after the event, in compliance with the timelines set in the contract.
- One key benefit of submitting claims promptly during the project is keeping the client informed about delay events and their potential impacts. This allows the client sufficient time to evaluate the situation and take any necessary measures. For example, the client may decide to expedite material delivery via air freight and reimburse the contractor for the acceleration because it is a more cost-effective solution than the potential profit loss that will result from the delayed facility operation. On the other hand, submitting claims only at the end of the project doesn’t give the client and consultant the opportunity to deal with the project delays which may lead to greater losses and missed mitigation opportunities.
8. Ignoring Consultant Feedback
Consultants play a key role in the review process and you need to incorporate or respond to their comments – whether on the claim submittals or their interim responses to the schedule updates submissions and correspondences (e.g. official letters).
9. Neglecting Professional Presentation
A poorly organized claim with ambiguous or hard-to-read data can easily frustrate reviewers. Never assume that the reviewer will do the work to decipher unclear information for you. Here’s an overlooked point: reviewers may be fair and experienced practitioners but they are also human. They might give you the benefit of the doubt but low-quality submissions can frustrate them and put them in a bad mood which may influence their decision-making process. A clear, substantiated, structured and well-written claim is not just a courtesy—it’s a key winning strategy. Make sure that you use a professional format with clear sections for narrative, evidence, delay analysis, supporting documents, conclusion and executive page for quick reference.
Conclusion
Submitting a strong delay claim requires more than just identifying a delay. It demands timely notices, supporting documentation, accurate analysis, and compliance with the contract clauses. By avoiding these common pitfalls, you can significantly increase the likelihood of your claim approval, minimize disputes and protect your entitlements.
Regards,
Osama Saad, MBA, PMP, PSP, CCP, PMI-SP
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