Featured Dispute Resolution Successful Outcomes

 

  • An Atlantic City Hotel / Casino Developer wanted a $24 Million renovation and expansion project completed in time for the tourist season.  With the project running behind schedule and millions of dollars over budget, the developer retained us to evaluate the causes of the delays and cost overruns in the work.  Subsequently, the developer filed a $14.5 Million net Arbitration claim against the construction manager on the project for failure to timely perform the work.  In support of the developer’s counsel, we performed a comprehensive schedule delay analysis evaluating the causes of and responsibility for the delay in the work, and evaluated the performance of the construction manager and its position regarding delays it alleged were the responsibility of the developer.  We also offered expert testimony in arbitration relative to our findings that the construction manager had failed to perform its management obligations in accordance with standards of practice in the industry.  Our expert testimony and report were pivotal factors in turning the case in the developer’s favor.  Our client was awarded $14 Million in damages; almost 100% of the amount claimed.

 

  • We were retained by counsel for the developer of a $28 Million major retail and entertainment development project in Atlantic City to evaluate the developer’s claims against both the designer and general contractor for the work on the project as a result of substantial delays in the completion of the work on the project.  The Project consisted of the development and construction of 12 new retail buildings and the relocation of an existing bus terminal facility and bus loading operation area.  Under the terms of the construction contract, substantial completion of the work related to the renovation of the existing bus terminal and the 12 new retail buildings was to be achieved no later than October 15, 2003 and May 1, 2005, respectively.  However, as a result of various problems, changes and delays that occurred throughout the course of performance of the work, substantial completion of both the bus terminal renovation and each of the 12 retail buildings was substantially delayed beyond the dates of substantial completion required under the contract. The developer alleged that the designer and general contractor shared responsibility for the delay in  completion of the bus terminal and the 12 retail buildings, which the developer asserted was attributable to the designers ongoing failure to timely prepare complete and accurate design documents and the contractors failure to effectively manage the work of its numerous subcontractors on the project  In response, the designer and general contractor asserted that the project was delayed, in part, by the developer as a result of various tenant-requested design changes. The general contractor also acknowledged that a significant portion of the subject delay was directly attributable to design deficiencies and developer-directed changes in the work.  We performed a comprehensive schedule delay analysis, which entailed evaluating the causes of and responsibility for the delay in the completion of the work on the bus terminal and each of the 12 retail buildings and apportioned the delay in the work on these structures between the developer, general contractor and the designer. We also calculated the developers extended costs of performance and lost rental revenue attributable to the delayed completion of each of the 12 new retail buildings.  Our analyses revealed that the general contractor had been delayed by the failure of the designer to timely prepare complete and accurate design documents. This led to the developer settling the general contractor’s and its subcontractor’s claims and thereafter proceeding against the designer to recover both the developer’s damages and the costs the developer had paid to the general contractor and its subcontractors as a result of problems and delays for which the designer was responsible.  At trial we offered expert testimony relative to our delay analyses and damages calculations, as well as our determination that the majority of the overall delay in the completion of the work on the project was attributable to late and deficient structural steel design drawings, foundation encroachment issues and an overall failure on the part of the designer to timely complete the preparation of design documents necessary to facilitate construction. Our expert testimony and report were key factors in the developers obtaining a $13 Million jury award.

 

 

  • We were retained by the State of New Jersey in regard to a lawsuit brought against the State by a major international contractor on a large Superfund remediation project. The engineering firm who designed the project was also made a defendant and cross-defendant. The contractor sought more than $60 million from the State and the State counterclaimed for millions of dollars of liquidated damages due to late completion of the project.  Our services included the performance of an independent schedule delay and disruption analysis in response to the contractor’s claims for additional compensation, and a series of rebuttal reports in response to those submitted by the experts working for the contractor.  Following the taking of expert depositions and a round of motions for partial summary judgments, which were rendered on the eve of trial, the contractor settled “on the courthouse steps.” 

 

 

  • We were retained by a major metropolitan museum to assist in evaluating eight multi-million dollar delay and disruption claims by major trade contractors arising out of the construction of a $385 Million renovation and expansion program.  The aggregate value of the claims exceeded $25 million.  We initially performed a detailed evaluation of the delay and disruption components of each of the submitted claims, as well as a detailed evaluation of the damages being claimed by the various trade contractors.  Thereafter, working in close cooperation with the executive director and counsel for the museum, we developed negotiating positions for the museum relative to each of the submitted claims and participated in a series of face-to-face negotiating sessions with each of the 8 trade contractors.  Over a period of eighteen months all 8 claims were equitably settled to the satisfaction of the museum, without the need to proceed to litigation. 

 

 

  • Faced with a $14.7 Million claim on a $15.7 Million highway and bridge construction project, a mid-Atlantic department of transportation hired us to perform a schedule delay and loss of productivity analysis in response to the claims submitted by the contractor on the project.  We analyzed the progress of the work, changes, delays and alleged losses of productivity and produced an Expert Report summarizing our findings, conclusions, and opinions.  At trial we offered expert testimony in support of our report.  The result:  The Board of Claims awarded the contractor $1.7 Million of the $14.7 Million claimed.  This award was appealed in State Court where the $1.7 Million judgment was upheld.

 

 

  • We were retained by the Maryland State Stadium Authority in regard to several multi-million dollar claims filed by both general and trade contractors arising out of the construction of the Washington Convention Center, Ravens Stadium, Camden Yards Stadium, and the Comcast Arena at the University of Maryland.  With respect to each of these claims, working closely with counsel, we initially performed a detailed evaluation of the delay, disruption, and damages components of each of the submitted claims and developed detailed responses and rebuttals thereto.  Thereafter, working in close cooperation with counsel and our client we assisted in developing negotiating positions relative to each of the submitted claims and participated in a series of face-to-face negotiating sessions with each of the contractors.  Every claim was successfully settled to the satisfaction of the stadium authority.

 

 

  • We were retained by counsel for the joint venture / general contractor (joint venture) in regard to a $70 million claim involving the construction of a $198 Million Advanced Wastewater Treatment Plant.  The scope of the work under the contract generally consisted of the expansion of an existing water reclamation facility, which consisted of the modification of various existing facilities, and the construction of new wastewater treatment facilities and miscellaneous support facilities to enable a capacity to treat 54 million gallons of influent per day. The contract provided that the joint venture was to achieve substantial completion of work within 850 days following the notice to proceed, and achieve final completion within 90 days following the date of Substantial Completion. The Contract also provided for the assessment of liquidated damages in the amount of $10,000 per day associated with the failure to timely achieve substantial completion of the work and $1,000 per day associated with the failure to timely achieve final completion of the work.  Notice to proceed was issued on January 30, 1997, which set substantial completion at May 30, 1999 and final completion at August 28, 1999.  Onsite work project commenced in early March 1997.  During calendar year 1997 the progress of the work was impacted by at least twenty-nine (29) calendar days of adverse weather. The owner and the joint venture agreed to disagree over the extent of said impact, and tentatively incorporated a twenty-nine (29) calendar day time extension into the joint venture’s as-planned schedule for the work as of December 31, 1997.  As a result, the dates of substantial and final completion were extended to June 28, 1999 and September 26, 1999, respectively. Subsequent to December 31, 1997 the performance of the work was significantly impacted by numerous delays, changes, and problems that affected the progress of the work.  As a result of these various delays, changes, and problems, substantial completion was significantly delayed.  The owner’s position was that the joint venture did not achieve substantial completion of the work until September 20, 2001, eight hundred and fifteen (815) calendar days later than the adjusted date of substantial completion for the work of June 28, 1999.  As a result, the owner withheld $7,210,000 in Liquidated damages.  The joint venture asserted that the owner had begun operating the project for its intended purposes as of February 27, 2001 and that as of that date the owner was realizing the benefits of the project. Moreover, the joint venture contended that the owner was responsible for all of the delay in the work leading to substantial completion.  We were retained by counsel for the joint venture to perform a schedule delay analysis in order to identify and evaluate the schedule impacts associated with work on the project; determine the effect those impacts and associated delays had on project progress; apportion the responsibility for delay between the parties to the contract; and prepare an expert report that set forth our findings, conclusions, and opinions.  Our analysis demonstrated that out of the 815 calendar days of delay in the completion of the Work (measured from the date of substantial completion of June 28, 1999, to September 20, 2001), the owner had caused 242 calendar days of delay; the joint venture experienced 566 calendar days of excusable delay; and the joint venture was responsible for 7 calendar days of delay. Based on our review of the project record we also determined that the owner and its project scheduling consultant had materially violated the project scheduling requirements of the contract by, among other things, unilaterally modifying numerous contractor submitted time impact analysis fragnets and incorporating the revised fragnets into the contractor’s project schedule; thus, effectively taking control of and stripping the contractor of its ability to proactively plan and schedule its work and utilize the schedule as a tool for evaluating requests for time extensions.  At trial we testified before a jury and presented our analyses, findings, and conclusions.  The jury ultimately found in favor of our client, determining that the owner had materially breached the contract and that the withholding of liquidated damages was improper.

 

 

  • We were retained by counsel for the general contractor in regard to a multi-million dollar claim arising out of the construction of a major roadway improvement and bridge replacement project for the New Jersey Department of Transportation.  The scope of work included certain roadway improvements, demolition and removal of an existing bridge, erection of a temporary bridge and a new bridge, and construction of various retaining and sheet pile walls, all to be performed in a prescribed, five (5) stage, sequential manner while maintaining the flow of traffic.  During the course of performance, the work was impacted by various design problems, the necessity to create additional work stages as a result of design problems, and changes that significantly delayed, disrupted, and resulted in a major re-sequencing of the work on the project.  Ultimately, the contractor submitted a claim to the NJDOT requesting a time extension of 231 calendar days and approximately $7 million in additional compensation. The NJDOT denied the contractors claim in its entirety.  We were retained by counsel for the general contractor to perform a comprehensive Schedule Delay Analysis in order to evaluate the schedule impacts associated with the Work on the Project, determine the effect those impacts had on Project progress, assess and allocate responsibility for critical Project delays, and prepare a Report that sets forth our findings and conclusions.  Our analysis demonstrated the contractor’s entitlement to a 241 calendar day compensable time extension and established that but for substantial re-sequencing and contractor acceleration efforts, the work on the project would have been delayed an additional 141 calendar days.  We presented our analysis in Mediation and the case settled with the general contractor receiving a substantial settlement payment.