Case Study 33-1 — "I Believe You. I Can't Prove You."

Curtis Boone's Rivermont Elementary claim, evaluated gate by gate — what he was genuinely owed, what he could establish, and the twenty-four-to-one arithmetic underneath the difference

⚠️ This case study is a framework for recognizing and preparing issues. It is not legal advice, and it cannot be. Entitlement, the doctrine governing concurrent delay, the recoverability of particular damage categories, and notice requirements vary enormously by jurisdiction and by contract, and they change. Two contractors with identical facts and identical records can get opposite results on two sides of a state line. Everyone and everything in this story is a composite. Involve counsel early — long before you think you need to.

Setup

Project: Rivermont Elementary School #12. $22,400,000, hard-bid design-bid-build lump sum, Rivermont Unified School District, prevailing wage, 100 percent payment and performance bonds, 610 calendar days.

The rates that decide everything downstream: Kestrel's field general conditions on this job, claimed at $2,100 per calendar day and audited from the job cost ledger at $1,940 per calendar day. District liquidated damages $2,500 per calendar day. Combined daily exposure $4,600/CD.

The people: Curtis Boone, Kestrel project manager — skilled builder, well liked, runs a lean staff, manages by relationship. Ilse Brandt, schedule consultant, six weeks inside the project record. Kestrel's outside counsel. Nadia Haddad, Kestrel's vice president of operations, who will decide what happens next.

When: eleven months after substantial completion, in a conference room Curtis has never been in, with a box of his own documents on the table that he did not pack.

What is on the table: a claim against the district for $1,375,800 and 74 calendar days.

And the fact that makes this case study worth your time: Curtis is right. The district's furnished technology racks arrived weeks late and the classroom wing waited on them. The kitchen equipment package went through three rounds of committee review while a hood opening stayed open in a roof. There was a month when the district's facilities director was on medical leave and nobody had authority to approve anything. Curtis was on site at 6:00 a.m. on the mornings when there was nothing for the electricians to do, and he sent them home himself.

None of that is in dispute in this room. What is in dispute is whether any of it can be established.

What Happens

Ilse starts with the record, not the merits. That order is deliberate, and it is the order §33.8.1 tells you to run.

"I know where the delays were," Curtis says.

"I believe you," Ilse says. "I believe you. I can't prove you. Those are different problems, and only one of them was ever fixable."

The gate-by-gate autopsy

Kestrel's outside counsel does the second half. She does not go element by element, because that is how a claimant reads a claim. She goes gate by gate, because that is how a defendant reads one — and if you want to know what your claim is worth, you read it the way the person paying will.

Read the third column down the page and then read the fifth. Not one line failed because Curtis was wrong about what happened.

The entitlement row is the cleanest illustration. Unabsorbed home-office overhead requires, in the settings where it is recognized at all, some combination of an owner-caused suspension of uncertain duration, a contractor held on standby, and an inability to take replacement work. There was no suspension. The job worked continuously. Kestrel bid and won two other projects during the period. Three predicates, three failures — before anybody looked at a number. The $118,600 was never worth arguing about, and the eleven hours somebody spent calculating it were spent for nothing.

The causation row is where the missing updates actually bite. Nineteen calendar days of owner-caused critical delay can be established. Twenty-one more are arguably concurrent and cannot be resolved either way, because resolving them requires knowing the total float on Curtis's own activities at the start of each period — a number that exists in exactly one place, a contemporaneous schedule update, and does not exist at all. When that question cannot be answered, the tie goes to the party defending.

The time, and then the money

Nineteen calendar days compensable plus twenty-one excusable-but-not-compensable equals a 40-day extension, which moves the adjusted completion date past the actual completion date and releases the 13 calendar days of liquidated damages the district had already assessed:

13 CD × $2,500/CD = $32,500 back.

Gross realistic recovery: $280,760 + $32,500 = $313,260.

Then the cost of getting there. Consultant $58,000. Counsel to date $71,000. Roughly 400 hours of Curtis's and his field engineer's time at a loaded $85/hour, $34,000. Pursuit cost: $163,000.

`$313,260 − $163,000 = $150,260` net, arriving somewhere between eighteen and thirty months from that meeting — against a claim filed at $1,375,800, and against a genuine, actually-incurred, owner-attributable loss that Ilse now puts at roughly $780,000.

Eleven cents on the dollar. Kestrel absorbs the rest.

Analysis

The four practices, priced

Here is the part nobody does, and it is the only part that changes anything on the next job. Take the four documentation failures and price the fix — not in virtue, in hours and dollars at a loaded $85 per hour across a twenty-month project.

Now set that against the number §33.4.3 puts on the gap: the documentation failure costs Curtis roughly $467,000 of a genuinely incurred $780,000 loss.

$467,000 ÷ $19,000 ≈ 24.6

Twenty-four to one. And that understates it, because a claim documented well enough to win is usually settled at the field level for less than it costs to fight — meaning the $163,000 of pursuit cost largely evaporates too. Wei Chen's version of this sentence is shorter and better: a schedule update costs about four hours a month; four hours a month for fourteen months is fifty-six hours. Curtis saved fifty-six hours.

Why this is not a story about a bad project manager

It would be comfortable to file Curtis under carelessness, and comfortable is exactly the wrong reaction. He is a better builder than most people reading this. He did not skip the updates out of laziness or dishonesty. He skipped them because the cost was visible and immediate and the benefit was invisible and contingent — every single month, for fourteen months, the rational-looking choice was to spend those four hours on something that mattered today.

That is not a character flaw. That is an accounting problem, and it has a systems answer: a calendar entry, a standing agenda item, and a rule that the update gets run before the pay application goes out, so the two live or die together. If you finish this case study concluding I would never be Curtis, you have learned nothing. The correct conclusion is I need a system that makes it impossible for me to become Curtis in a busy month.

The one line to carry out of the room

Being right is not the same as being able to prove it. Entitlement, causation, and damages are three separate proofs. Curtis won the argument about what happened in every conversation he ever had about this job, including this one. He lost $629,740 anyway.

Discussion Questions

1. Ilse audited the record before she evaluated the merits, and §33.8.1 says to run it in that order. Why? Name two things that order protects you from, and describe a situation in which running it the other way would waste six figures.

2. The nine notice letters are dated when they were actually written — month thirteen — which makes them merely late. §33.12 argues they are worth far more in that condition than nine backdated ones would have been. Explain the mechanism, and then explain why the argument is not primarily a moral one.

3. The extended-overhead claim was filed at $2,100/CD when the audited actual for the period was $1,940/CD. Across 19 days that is a $3,040 difference — trivial. Argue that it was nonetheless one of the most expensive decisions in the whole filing.

4. Twenty-one of the forty days were treated as "arguably concurrent" and therefore excusable but non-compensable. Identify precisely what evidence would have resolved them one way or the other, say which party benefits from the ambiguity, and state the general rule that produces that result.

5. Suppose Curtis had all four practices in place and the same events occurred. Sketch what the negotiation looks like in month nine, at the field level, with the district's project manager — and estimate what it settles for. Then compare to $150,260 arriving in year three, using the framework in §33.10.2.

Your Turn

You have just been handed a job like Curtis's: twenty months, a public owner, a lean staff, and a project manager who is genuinely good in the field and has no documentation system at all. You have one week before you start.

Produce four things, each one page or less.

1. A weekly documentation standard. What gets produced, by whom, on what day of the week, and the acceptance test for "done." A daily report entry that says worked on site fails the test — write the test that catches it.
2. A notice register. One row per notice-bearing clause in the contract: trigger, period, required content, recipient and copies, delivery method, and the consequence of lateness as the clause is actually written. Mark the rows where the consequence is waiver.
3. A cost-code structure minimal enough to be used correctly and detailed enough to support a measured mile. State the number of codes, the unit of measure for each, and how a code gets opened mid-job for an impact event.
4. The price. Total hours per month, valued at a loaded rate, presented as a single number to your project executive — with the twenty-four-to-one comparison on the same page.

Then write the two sentences you would say to your superintendent on Monday morning, knowing that they have run twelve jobs without any of this and consider it office work. If those two sentences argue that it protects the company, you have lost. Write the version that shows them what it protects them from.