Chapter 33 — Further Reading

Everything below is a real body, standard form, publication series, or resource. Where I am not certain of an exact title, edition, or section number, I describe the source rather than invent a citation — and you should hold every other author to the same standard, including in a claim document you are about to sign.

Two warnings before you start. First: claims law is jurisdictional. Notice consequences, concurrency treatment, the enforceability of no-damage-for-delay and liquidated-damages clauses, the availability of unabsorbed home-office overhead and interest, and the rules of every forum in §33.9 vary enormously by jurisdiction and by contract, and they change. Nothing on this list overrides your own contract or your own counsel. Second: none of these are law. Two of the most-cited items below are guidance documents that bind nobody anywhere, and reading them as rules is a mistake that experienced people make.

Delay and disruption methodology

1. AACE International — the recommended practice on forensic schedule analysis, generally cited as RP 29R-03. The closest thing this industry has to a methodological standard for delay analysis. It builds a taxonomy of the analysis techniques, describes what data each one actually requires, and is notably candid about where each is weak. If you want to understand why your consultant chose a windows analysis over a collapsed as-built, this is where the reasoning lives. AACE publishes a companion recommended practice addressing the estimation of lost labor productivity, which surveys the available methods and ranks them by reliability — read it before you ever present a factor table as proof. For: anyone who will prepare or defend a delay or disruption claim. Get the current versions; both have been revised.

2. The Society of Construction Law Delay and Disruption Protocol. A widely referenced guidance document covering delay analysis methodology, concurrency, float ownership, disruption, and the hierarchy of evidence. It is international in outlook, freely available, guidance rather than law, and binding nowhere — but it gives a common vocabulary to people who would otherwise argue past each other, and it is frequently cited in international practice. For: a rigorous, non-U.S.-centric second opinion on how these arguments actually get evaluated. Read the current edition itself; do not rely on anyone's summary, including mine.

3. The Mechanical Contractors Association of America (MCAA) and the National Electrical Contractors Association (NECA) — published guidance on labor productivity and change-order impact. The factor tables most often cited in disruption disputes: overtime, stacking of trades, out-of-sequence work, crew-size changes, and similar conditions. Read them for the mechanisms and treat the numbers as planning heuristics rather than measured constants, which is roughly how the publishers themselves frame them. For: estimators, and anyone pricing acceleration. Pairs with Chapter 20, which makes the same argument from the estimating side.

The contracts themselves — read the machinery, not a summary of it

4. AIA contract documents — the A201 general conditions, with the A101, A102, and A133 agreements. A201 is where the changes clause, the claims article, the notice periods, the initial decision maker's role, the time-extension provisions, and the dispute sequence actually live in the most widely used American family of forms. Read the claims article beside the changes article and notice how differently the two clocks run. For: everyone. Get the current documents from the publisher rather than a marked-up copy from a prior job — the forms are revised periodically and the differences matter.

5. ConsensusDocs and EJCDC standard forms. Two other major American families, drafted by different coalitions with different balances of interest. Reading the same five provisions across three families — changes, notice, delay, concurrency, and dispute resolution — is the single fastest way to understand that your contract is a set of choices somebody made, not a law of nature. For: contract administrators, and anyone about to negotiate rather than sign.

6. FIDIC contract forms. The dominant family on international projects, with claims and notice machinery structured quite differently from the American forms — including strict time bars and standing dispute boards. For: anyone working outside their home market, and for the useful shock of seeing how much of what you assumed was universal is actually just local.

Dispute resolution

7. The American Arbitration Association — construction industry arbitration rules and mediation procedures. The rules that govern a large share of American construction arbitrations and mediations: filing, arbitrator selection, the extent of discovery, the conduct of hearings, and the fee schedule. Read the fee schedule. It is the fastest cure for the belief that arbitration is automatically cheap. For: anyone whose contract names an administering body — which is most people, whether they know it or not.

8. The Dispute Resolution Board Foundation. The organization that maintains practice guidance for dispute review boards and standing neutrals: how boards are constituted, how site visits and document distribution work, and how hearings are conducted. §33.9.3 argues that the real value of a DRB is that it resolves issues while the people are still on the project; this is where you learn what standing one up actually involves and costs. For: anyone on a large, long, or public infrastructure project.

Where the law actually lives

9. Your own jurisdiction's primary sources — and this is the most important entry on the page. The general conditions published by the public agencies you bid for; your state's statutes on prompt payment, retention, and public contracting; and the reported decisions of your own courts. Notice waiver, concurrency, and no-damage-for-delay outcomes are decided here and nowhere else. Find out, specifically: whether your jurisdiction limits no-damage-for-delay clauses on public work; whether late notice waives a claim outright or requires the other party to show prejudice; and whether interest on unpaid claims is available. For: every reader, on every job. Verify it, date the verification, and re-verify — none of these answers transfer across a state line, and none of them are permanent.

10. The Miller Act and the state "Little Miller Act" bond statutes. On federal work and most state and municipal public work, the payment bond — not a lien — is the security, and the statutes governing notice and suit deadlines on those bonds are strict and unforgiving. The claims path in §33.9 assumes you have not quietly blown a bond deadline while you were building a delay analysis. For: subcontractors and suppliers especially. Introduced in Chapter 5; the state statutes differ substantially from each other and from the federal act.

11. Practitioner treatises and reference works on construction law. Several long-standing works serve as the standard desk references — including the multi-volume treatise generally cited as Bruner & O'Connor on Construction Law, the practitioner guide published in successive editions under the Smith, Currie & Hancock name, and the academic treatments of the construction process associated with Justin Sweet. Any well-stocked law library or university library will have at least one. Check the currency of whatever you pull — construction law texts age quickly, and a superseded edition is worse than no edition because it reads authoritative. For: the reader who wants the doctrine behind §33.2 and §33.5 rather than the practice.

Industry practice and the trade record

12. AGC of America, CMAA, and Engineering News-Record. The AGC publishes practical guidance on project documentation, subcontracting, and dispute avoidance written for contractors rather than for lawyers. CMAA's construction management standards of practice describe what a professional CM is expected to do, including on records and claims administration, and are useful precisely because they are written from the owner's side of the table. ENR is the trade record: it covers major disputes, delay claims, and their outcomes as they happen, and reading a few years of it will teach you more about how these fights actually end than any framework. For: everyone, in that order — guidance, standard of practice, then reality.

Inside this book

• Chapter 5 — where notice, bonds, liens, and the dispute ladder are introduced.
• Chapter 14 and Appendix B — the CPM mechanics underneath every windows analysis.
• Chapter 20 — the productivity measurement that makes a measured mile possible at all.
• Chapter 25 and Chapter 26 — the records this entire chapter depends on.
• Chapter 29 — the delay taxonomy, time impact analysis, and recovery planning.
• Chapter 31 — where most claims begin, as an unresolved change.
• Chapter 32 — the cash side of an aging pending-change log, and the waivers on your own pay application.
• Chapter 34 — what an unresolved claim looks like to a surety underwriter, which is nothing like what it looks like to you.
• Appendix G — the clause-by-clause reading behind §33.2.1.
• Appendix D — notice, transmittal, and daily report forms worth standardizing before you need them.