VOLUME 24 ISSUE 18 October 15, 2026
Editor’s Notes
Welcome to Construction Claims & Risk Management, our new newsletter replacing Construction Claims Advisor! Due to publication delays, we’ve combined the content planned for this month’s two issues into a single edition. Going forward, look for the newsletter in your inbox on the 1st and 15th of each month.
In this issue, you’ll find case summaries covering bonding, limits on liquidated damages, and implied warranties, along with practical guidance on using AI in construction and managing bidding and procurement risk.
We’re also pleased to introduce the first in a series of articles by James G. Zack, Jr., a well-known consultant, speaker and authority on construction disputes. The series explores how public and private owners can better manage risk and the construction claims process on their projects.
Case Summary Notes
It is well known that smaller construction companies have difficulty obtaining the bonds necessary to perform public works contracts. Lacking the collateral to access the commercial corporate surety market, these companies resort to individual sureties, teaming agreements with larger companies and other creative solutions.
This month’s case summaries concern bonding, liquidated damages, implied warranty and delay claims. Because this month’s issue is combined, there are five case summaries instead of the usual two to three.
Bonding Attempts Prove Futile
A contractor’s proposed bonding arrangements were either noncompliant with the government’s list of approved corporate sureties or in violation of the Assignment of Claims Act.
Liquidated Damages Cap Not Applicable to Non-Delay Damages
Liquidated damages were a project owner’s exclusive remedy for delayed completion, and those damages were capped at a stipulated amount. But the owner could still recover direct damages for increased construction costs, even if the total claim exceeded the cap.
No Implied Warranty on Performance Specification
The government does not extend an implied warranty of accuracy for a performance specification. However, the contractor did state a valid claim for a differing site condition.
Challenge to Liquidated Damages Rate Allowed
A contractor was allowed to challenge the enforceability of a liquidated damages clause as part of its suit for payment under the contract. The contractor argued that the public project owner used a formulaic daily rate instead of a forecast of damages for late project completion.
Delay Claim Needed Comprehensive CPM Analysis
A contractor’s delay damage claim was unitary, not a series of distinct claims. All aspects of the claim arose from the same set of operative facts. And delay analysis on complex projects requires a comprehensive approach.
Practical Guidance
Construction Risk—Bidding and Procurement
The risks that decide a project's fate are baked into the bid, long before the first shovel hits dirt—quantities, subsurface conditions and subcontractor pricing are all factors you're betting on sight unseen.
Owner’s Corner
Are Impact Damages on Construction Projects Recoverable?
Contractors rarely get to work the way they planned. A late RFI response here, a design gap there, a delayed site release—each seems minor on its own, but together they can quietly erode a project's productivity long after the disruption itself has passed. This article by James G. Zack, Jr., is the first in a multi-part series intended to help public and private owners better understand and manage the construction claims process on their projects.
Owner Risks—Procurement and Delivery
An owner's most powerful risk decisions are made before construction begins, in how the project is structured and how risk is allocated.
AI in Construction Risk and Claims
What Is AI Actually Doing in Construction?
AI in construction is marketed as everything from robotic bricklaying to autonomous plant, but what is it actually delivering on live projects? This article sets the hype aside and asks a narrower question: which tasks is AI completing, in a real week, to a standard that a professional would put their name to?
Upcoming Training
Essential Course on Construction Claims—Continues October 14
Join the attorneys and consultants who handle construction claims every day for a nine-part live webinar series covering the full claims and change order process—from spotting a compensable event to pricing the damages.
Each 90-minute session runs live with a 15-minute Q&A. Every class is recorded if you can't make it live. Registration includes the forthcoming 2027 Fourth Edition ASCE claims book, a free Pro subscription to CCRM, 13.5 CEUs, and a Certificate of Completion.