Contractor Finished Project Early. Can It Still Recover Delay Damages?

The contractor finished the project early, but it still asserted a claim for delay. A contractor that finishes early can still recover delay costs under certain circumstances. But the ASBCA found the contractor in this case hadn’t demonstrated those circumstances.

Appeal of Speedway Orion JV, ASBCA No. 63457

• Early Completion – The contractor sought damages for government-caused delay on a construction project. The government said there hadn’t been delay because the contractor had finished before the contract deadline. The ASBCA noted even if a contractor finishes early, they can still assert delay if they demonstrate that from the outset of the contract. they intended to complete the project early. Here, however, the contractor had not made that showing. The contractor’s initial schedule did not show it intended to finish early.
• Causation – The board also noted a causation problem with the alleged delay. The contractor contended the delay was caused by a slow approval process. But the contractor had not demonstrated a causal link between slow approvals and the alleged delay. The contactor’s assertions were conclusory and self-serving.
• Constructive Suspension – As an alternative theory, the contractor alleged the government had constructively suspended performance. The board found the contractor had not established any of the elements of a constructive suspension. For instance, the contractor had not shown it had been delayed and required to immediately resume work at full speed.

Speedway is represented by Luke E. Thompson of Thompson Law & Consultation. The government is represented by Craig D. Jensen, Lynn A. Long, and David M. Ruddy of the Navy.

–Case summary by Craig LaChance, Senior Editor

[pdf-embedder url=”https://staging.pub-k.org/wp-content/uploads/2023/06/ASBCA-Speedway.pdf” title=”ASBCA – Speedway”]