Armed Services Board of Contract Appeal

Case no.: ASBCA No. 64327
Date filed: September 14, 2026

The Armed Services Board of Contract Appeals has ruled that a contractor submitted a unitary claim for delay damages rather than a series of distinct claims. Delay analysis on complex construction projects requires a comprehensive approach.

The Army Corps of Engineers (the Corps) awarded a fixed-price contract to Hensel Phelps Construction Company for the construction of an expansion project at the Bureau of Engraving and Printing facility in Fort Worth, Texas. The contract divided the project into ten contract line items (CLINs), each with its own price and completion deadline. For instance, CLIN 002 was for the production area, and CLIN 007 was for the administration area.

During construction, Phelps complained that the electrical design was woefully inadequate. The government issued a series of contract modifications. Phelps also objected when the Corps made significant changes to the mechanical system. The government acknowledged the performance period had been extended by 190 days, but refused to compensate Phelps for delay damages due to what the Corps characterized as concurrent delay.

Upon completion of the work, Phelps submitted a certified claim for 285 days of extended job site expenses, or “general conditions,” priced on a per diem basis. The claim was supported by the critical path method (CPM) analysis, showing the critical path of the schedule running through CLIN 002 and CLIN 007.

The government moved to dismiss the delay claim. The government contended Phelps had submitted a series of distinct delay claims packaged as a unitary claim. Each individual claim should have been quantified as a sum certain, a requirement of the Contract Disputes Act. The per diem amount for the entire extended performance period was insufficient. Phelps responded that the delay events were intertwined and arose out of the same set of operative facts. This was a unitary claim.

The board agreed with Phelps that the inadequacies in the design documents and the changes to those documents were the fundamental underlying cause of all the delays. This was a common set of operative facts, even though some of the delay events may have had unique facts.

“To the extent the allegedly defective design documents are the root cause of the various delay and cost impacts, determining Hensel Phelps’ entitlement to compensation requires consideration of the same or related operative facts regarding the alleged design flaws…While instances of alleged delay flowing from that common cause may involve some unique facts, that does not make it a separate claim from all other delays arising from the same cause. Claims are divisible only if the operative facts shared between them are insubstantial.”

The board noted that the need for CPM analysis in complex construction projects reinforces the unitary nature of delay-damage claims. The contractor can only prove entitlement to compensation through comprehensive analysis.

“The government’s position that the delay claim is made up of a collection of standalone delay claims that could be decided in isolation from one another is inconsistent with the precedent establishing how delay claims on complex construction projects should be addressed. A proper delay analysis in situations like this usually requires a comprehensive assessment of the project to determine the critical path, establish what effect the alleged delay events had on the critical path, and account for all potential concurrent delays that might also have impacted the critical path.”

The board also said: “Hensel Phelps is entitled to compensation for an instance of alleged delay only if it is on the critical path and the government is solely responsible for it. Those things can only be determined by a holistic assessment of the state of the project during the relevant time period so that any concurrent delays (including any overlapping government-caused delay) can be identified and taken into account.”

The contracting officer denied the claim on the grounds of concurrent delay and did not raise the issue of failure to state a sum certain for divisible delay events. The board found this persuasive, as the “oft-stated purpose of the sum certain requirement is to allow the contracting officer to settle a claim.”

The pricing for this delay claim was straightforward: a per diem rate for the extended job site general conditions. On a different claim, it might be necessary to link increased costs to particular divisible delay events, unitary claim notwithstanding.

Participants:
For Hensel Phelps Construction: Vivian Katsantonis; McLean, Virginia
For the Corps of Engineers: R. Stephen Cheak; Fort Worth, Texas

Before: Administrative Judges McLish, Prouty, and O’Connell

Opinion by: Administrative Judge McLish

Outcome: Government motion to dismiss delay portion of claim denied

Source: Please click here to read the complete opinion.