From start to finish, construction rarely goes as originally planned for a myriad of reasons, resulting in delay claims. There are no perfect designs or execution plans. Global supply chain issues can lead to delays in procurement times. Natural disasters or unusual weather can delay or damage projects. Unforeseen site conditions can lead to additional work or necessitate alterations to the project’s scope. As a contractor, mitigating risk, negotiating changes fairly, and consistently moving forward typically help you reach the finish line.
However, there will always be a few projects that inevitably encounter more problems than can be mitigated. Or issues that are not amicably agreeable to all parties. When this happens, there are usually delays and lost time-related costs. If the prime contractor is responsible for most delays and cannot recover delay costs from the owner. They often fairly or unfairly look to their subcontractors to recover damages.
A recurring theme that we have observed is prime contractors and occasionally owners targeting specific subcontractors. This article discusses the most frequently targeted subcontractor of all trades: electrical subcontractors.
Electrical crews are among the first to arrive at the project. And, among the last to leave the project. This is one of several reasons why electrical subcontractors become targets of other parties seeking to shift the blame for delays.
Accelerating Electrical Work to Recover Time from Other Trades’ Delays
The concrete foundation was finished two months later than planned. The structural steel was delayed for three additional months. A contractor must decide how to recover from five months of delays or incur liquidated damages.
All too often, I have seen contractors unfairly compress the remaining electrical work in an attempt to recoup lost time. Which the electrical subcontractor had no control over. This scenario is the most common when the prime contractor self-performed the work that caused the delays. They have no other subcontractor to hold accountable.
Concurrent Electrical Work Impact on Delay Claims
Targeting the Deepest Pocket
Perhaps the most egregious claim I have ever encountered was made by one of the major prime contractors. This company is among the largest in the world. It developed a spreadsheet listing each subcontractor’s annual sales. The sales reports and financial data were used as an indicator to apportion damages based on how much each subcontractor could potentially pay. This is as shady as it gets, but it is the reality of the construction industry in 2025. There are ethical and reasonable prime contractors who treat their subcontractors fairly. However, this isn’t always possible if you are locked into an existing contract. Moreover, if the market declines, there are few viable alternatives.
Protecting Yourself from Delay Claims
Subcontract Agreement
Regardless of who the prime contractor is, always protect yourself contractually in your subcontract agreement. Do not agree to unreasonable, one-sided contracts. Make sure that your contract bid schedule and overall period of performance are clearly defined. Avoid one-sided, unfair contract agreements that require unlimited acceleration and require you to stay on-site indefinitely without additional cost. These one-sided clauses are generally unenforceable by most state and federal courts. They are often used as a strong-arm tactic by shady prime contractors.
It is better to take written exceptions to these clauses when you sign the agreement and strike them out. You may run the risk of losing the work, but you must ask yourself if you want to work for a shady prime contractor who may unfairly turn on you when you least expect it. The best line of defense is to carefully select your teaming partners.
Native Schedule Distribution Provision
Always include a Native Schedule Distribution Provision in your subcontract agreement. This gives you access to all native schedules (MPP or XER format), schedule reports, and deliverables. PDF schedule reports only show what the prime contractor chooses to show and can be easily manipulated or fudged.
Pristine Record Keeping
If you find yourself locked into an unfair, one-sided contract, maintaining accurate and up-to-date record-keeping is critical. Be consistent throughout your project records, including your schedules, daily logs, site photos (date stamp, location, and description), and correspondence. Be prepared should a delay claim arise.
Delay Notification Requirements for Delay Claims
To protect owners from frivolous after-the-fact delay claims, most contracts include some form of delay notification requirements. In a perfect world, this would occur on official contractor letterhead in an ivory envelope, hand-delivered within hours of the delay event. Over the past 20 years, I’ve never encountered this for several reasons. First, a reasonable timeframe, starting after the delay is identified, should be established to deliver notification of the delay.
What is a reasonable time frame? First, a contractor or subcontractor must be aware that a delay is occurring. This is straightforward if the delay event is obvious, such as a work suspension or the failure of a critical piece of equipment to arrive on the planned delivery date. It is more challenging to identify a delay caused by reduced productivity, disruptions, or concurrent installations. These may require multiple trades to work simultaneously in the same area. You may be causing an active delay without being aware of it.
Generally, I recommend 10-30 days as a reasonable period to provide a notification of delay. Furthermore, be on the safe side and include a section for potential delays in your schedule. Update narratives and project records.
The As-built Critical Path vs. Forecasted Critical Path
Without the benefit of complete hindsight data. The as-built critical drivers that actually delayed the project may not align with the forecasted critical path of a specified schedule update. In other words, a specific subcontractor might have been blamed for a delay period that they were not responsible for. Alternatively, a different trade may have unknowingly delayed the project and, therefore, did not provide a delay notice.
During construction, the forecasted critical path is based on a specified date (data date or status date). All actual or completed work is shown to the left of the data date, and all remaining work is forecasted to the right of the data date. If the longest critical path activities (red bars) are delayed, the forecasted completion date of the schedule will shift to the right. Thus, resulting in a day-for-day delay impact on the project.
Forensic Schedule Analysis for Delay Claims
The as-built critical path is identified by performing a hindsight forensic schedule analysis to assess which activities actually delayed the schedule (as-built or actual critical drivers) and by how much time.
Why would the contemporaneous schedule updates indicate different critical path drivers than the as-built critical path?
This can occur for several reasons, including incorrect actual dates in the schedule, errors, or incorrect logic ties. As a forensic delay expert and professional scheduler, the most commonly encountered issues involve schedule manipulation or fudging. Long-lead procurement activities may also be incorrectly identified as actual critical drivers.
Unless the schedule contains egregious errors, the longest critical path, 2nd most critical path, or 3rd most critical path of any schedule update will likely align with the as-built critical path. Always track near-critical paths so you know which activities should be given the highest priority to finish on time. Utilize this technique when analyzing the validity of a delay claim.
Precautionary Measures and Best Practices
To summarize, electrical contractors should always exercise precautionary measures and best practices to avoid becoming the target of frivolous delay claims:
- Contractual Terms: Carefully review the terms in your contract agreement. Take written exceptions to one-sided terms. Sometimes, it is better to pass on the project and find a better, more symbiotic teaming partner that offers fair and reciprocal terms where both parties play fair and can mutually succeed. No matter how large the project or the prime contractor, it’s only a matter of time before shady business practices and bullying tactics bring down an empire.
- Native Schedule Access: Always include a native schedule distribution provision in your subcontract agreement, giving you access to all native schedules (MPP or XER format), schedule reports, and deliverables.
- Pristine Record Keeping: Be consistent in maintaining your schedules, daily logs, site photos (including date stamp, location, and description), and correspondence. Any hole in your records can be exploited.
- Delay Notifications: Establish a fair and reasonable time period for delay notifications and potential delay notifications. Cross-reference delays and potential in multiple sets of records. Ensure your team abides by the contract requirements when presenting or responding to a delay claim.
Critical Path: Always know what is driving the project’s longest critical path, the second most critical path, and the third most critical path so you can prioritize which activities to focus on.
About the Author
Mr. Gregory Lee is a renowned forensic scheduling consultant, testifying expert, and the chief operating officer at Precision Scheduling Consultants. With over 18 years of experience, he has played a crucial role in planning and scheduling construction projects worth more than $10 billion. These projects span diverse locations, including Australia, the U.S., Europe, Asia, and the Middle East.
As a testifying expert, Mr. Lee specializes in forensic analysis and dispute resolution. His insights empower clients to understand critical project timelines and develop effective mitigation strategies. He rigorously assesses project issues and provides valuable depositions in legal settings, ensuring clients receive comprehensive support throughout the dispute resolution process.
