How do I fight a delay claim as a subcontractor in Minnesota?

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Brandon M. Schwartz - Business Litigation - Super Lawyers

Answered by: Brandon M. Schwartz

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Delay claims are one of the most hotly contested aspects of construction projects. Delays can have numerous causes, many of which can be completely out of a contractor’s control. But if a general contractor brings a claim against you stating that you delayed the project’s completion, you may find yourself on the line, financially and professionally. To fight such an accusation, you must be able to successfully demonstrate that you are not responsible for the delay which may require assistance from a knowledgeable attorney. Additionally, you may have claims of your own against the general contractor for schedule compression or trade staking. 

Documentation is key

Obtain copies of the schedules that were kept throughout the project and carefully review them throughout the project’s work. If there are delays prior to the commencement of your scope of work, document such delays via letters or emails to the general contractor. This can help establish which party was responsible for any delays prior to you and whether you caused any delay to the ultimate project completion date. Additionally, the schedules can help in establishing that, as a result of the delays which preceded your scope of work, the general contractor decreased your time to complete your scope of work (schedule compression claim) and/or scheduled multiple trades to complete their work concurrently with yours (trade staking claim). Because the construction process can be fluid, a delay in the schedule usually results in multiple trades being subsequently impacted.    

Do not simply accept a delay claim against you 

Although the majority of contractors are scrupulous people, presenting a construction delay claim against subcontractors can increase the profit for the general contractor. The profit on construction jobs has become increasingly thin as the industry has become more competitive. A general contractor may assert a delay claim and hope that the subcontractor will not fight it due to fear of legal fees, wanting to work with the general contractor in the future, or simply to focus on current projects rather than fight the battle with the general contractor. If you simply accept a delay claim, you may take a major financial hit and your professional reputation could suffer, as well. You have rights as a subcontractor, and you deserve to defend yourself and may have claims of your own against the general contractor. 

A knowledgeable attorney can be a powerful advocate for you 

It is not always possible to avoid a delay claim and in today’s extremely competitive market, prevailing against a delay claim is more important than ever. 

While fighting a claim will vary depending on whether you are in litigation or arbitration (arbitration is more common as many contractors now have built-in arbitration clauses in their contracts), the facts are consistent regardless of which venue you must defend yourself or assert any counterclaims you have against the general contractor. Documentation is paramount in establishing your defense to any delay claims as well as establishing any scheduling compression claims or trade staking claims against the general contractor.

A Minnesota attorney who practices construction law can represent you in negotiating a resolution, appearing at mediation, and, if final adjudication is necessary, advocating on your behalf in either arbitration or litigation in court. It is prudent to speak with a knowledgeable attorney as soon as an issue arises to help in combating against a delay claim by documenting your defenses as well as your own counterclaims.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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