Litigating Lost Productivity Claims in Construction: Developing Methodologies, ASCE Standards

Construction delays are common in the building industry, and loss claims on projects in progress when COVID-19 struck will likely increase due to contractors performing work under conditions far different than originally contemplated when they bid the project and signed the contract.

Consequently, contractors pursue claims seeking compensation for adverse impacts to projects shut down or slowed because of the COVID-19 pandemic, and owners defend such claims. Documenting causation and accurately assessing loss of productivity will be vital to both parties. While COVID-19 has changed the construction industry in many ways, it has not changed the fact that claims for loss of productivity remain some of the most contentious and most difficult to quantify and prove.

There is no universally accepted standard for calculating damages for these claims. Contractors and their experts rely upon various treatises and studies on loss of productivity to present such claims in mediation, litigation, and arbitration proceedings. Over the years, courts have decided claims and awarded damages based on different methodologies for quantifying and proving such claims, often leading to inconsistent results.

Construction counsel proving or defending lost productivity claims can arm themselves with effective litigation strategies to achieve the best outcome for their client, including leveraging clauses in the construction contract to strengthen their client's position.

Listen to our authoritative panel of construction law attorneys discusses best practices for proving or defending lost productivity claims due to construction delays. The panel will also discuss proactive steps counsel can take and methodologies for determining losses and incorporating ASCE standards.