Credibility matters. Here’s another example involving a delay claim on public private partnership delivery method.
The project agreement required claims to be tried by a hearing examiner. The public private partnership developer (for lack of a better term) submitted delay claims that it contended were caused by Miami-Dade County. The hearing examiner awarded the developer delay time and compensation. On appeal, the County argued that the delays awarded by the hearing examiner were concurrent critical path delays with other delays caused by the developer’s team (the developer’s contractor). This was demonstrated by the fact that in an attempt to mitigate the County delay, the contractor’s incorporated a schedule fragnet into its schedule to mitigate delay that showed the critical path was driven by events deemed caused by the contractor. This was also reported in the contractor’s monthly updates. The developer argued that its mitigation plan did not work and, thus, the schedules showed a hypothetical delay caused by the contractor when, in actuality, it was the County-caused delay that drove the critical path. The hearing officer agreed with the contractor.
[The developer’s] primary argument is that it implemented a “schedule fragnet” in an attempt to mitigate the delay caused by [the County caused delay]. This mitigation plan was incorporated into the monthly schedule, making it appear that [contractor caused events] were on the critical path. However, once [the contractor] determined that the mitigation plan would not be feasible, it removed this “fragnet” from the schedule. Once the “fragnet” was removed, [the County delay] reemerged as the critical path driver. Thus, as [the developer] maintains, while it appeared that [the contractor caused events] caused concurrent critical path delays, it was only a mirage (i.e., a “hypothetical” delay) because the mitigation plan did not work. Therefore, [the developer] contends that [the County delay] was, in reality, the sole critical path delay that created the 224-day compensation event.
The County counters [the developer’s] argument by pointing out that the contemporaneous monthly updates showing [the contractor’s events] as critical reflect what actually drove the schedule, and that the delays shown cannot be reduced with a hindsight reconstruction.
We first note that there is no factual dispute between [the developer] and the County. The dispute is fundamentally methodological. Which position would succeed depended on whether the Hearing Examiner chose to accept [developer’s expert’s] method over the County’s. [The developer] asked the Hearing Examiner to disregard six of nine contemporaneous monthly updates that reported that [the contractor caused events] were critical as “a hypothetical mitigation byproduct.” This was a credibility and methodology determination that the Hearing Examiner resolved in favor of [the developer]….
Miami-Dade County v. Plenary Justice Miami, 2026 WL 2496649 (Fla. Cir. Crt App. Div 2026) (unreported).
Here, the Hearing Officer did not base its opinion on what the monthly schedule updates showed, but on the actuality of what occurred as opined by the credibility of witnesses and particularly the expert. Hence, credibility mattered!
Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
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