Authored by: Rimkus Forensics Marketing Team

A parking garage collapse may initially suggest construction defects, but forensic analysis in construction claims and disputes often has to look further. The analysis evaluates project records, physical evidence, testing data, causation, and schedule impacts to clarify technical and contractual questions. 

Investigators assess material behavior over time, design and specification decisions, and construction workmanship before forming an opinion. The evidence may shift attention from workmanship toward material specification or design, turning a straightforward construction defect claim into a complex multi-party dispute that may involve designers, material suppliers, and testing laboratories. 

Key takeaways: What forensic analysis reveals in construction disputes

Construction claims and disputes often involve technical questions that benefit from forensic investigation. Root cause analysis, delay methodology, and documented evidence can help clarify causation, schedule impacts, and other issues relevant to claim evaluation and dispute resolution.

What supports a reliable investigation 

• Forensic engineers typically use a systematic methodology that may include planning, data collection, testing, analysis, hypothesis evaluation, and presentation of conclusions.
• Testing protocols reference ASME, AWS, ISO, and ASTM standards depending on the system involved.
• Amended Federal Rule of Evidence 702 requires methodology to be reliably applied, not just referenced.

Where disputes commonly originate

• Delay, productivity, and differing site conditions claims each follow distinct analytical frameworks.
• Contract notice requirements and administration issues may affect entitlement independently of the technical merits of a claim, depending on the contract and governing law.
• Dispute resolution boards and tiered contract procedures can help resolve issues before litigation.

Rimkus forensic engineers and technical consultants support construction claims and disputes with independent, well-documented technical analysis. Contact Rimkus to discuss project-specific requirements.

What are construction claims and disputes? 

Construction claims and disputes arise when project participants disagree over contractual obligations or technical failures. The American Society of Civil Engineers (ASCE) provides guidance relevant to forensic engineering and failure investigation, while ASTM International (ASTM) publishes standards and guides that may apply to evidence handling, testing, and forensic reporting depending on the assignment. 

The National Academy of Forensic Engineers (NAFE) defines forensic engineering as the application of the art and science of engineering to matters that are in, or may relate to, the jurisprudence system. The definition covers alternative dispute resolution. Investigation teams document findings in a manner that clearly identifies the evidence reviewed, methods applied, assumptions made, and technical basis for the conclusions reached. 

What types of construction claims and disputes are common?

Common disputes involve contract-document errors, delays, lost labor productivity, design errors, differing site conditions, change orders, administration failures, notice requirements, and pass-through claims. Potential root causes may also include construction defects, material failures, and unforeseen site conditions. These issues, along with the resolution mechanisms parties use to address them, are covered in detail below. 

How are construction claims and disputes evaluated? 

Forensic engineers typically use a systematic investigative process tailored to the technical issues, available evidence, and scope of the assignment. The five phases are: 

• Investigation planning 
• Data collection 
• Testing protocol development 
• Data analysis 
• Presentation of conclusions 

Each phase builds on the information developed during the investigation, beginning with planning and evidence preservation and continuing through testing, analysis, and reporting. 

1. Planning and evidence preservation 

Planning can help determine whether sufficient evidence exists and identify potential spoliation concerns. Teams systematically organize design documents, construction records, physical evidence, and time-stamped digital records while documenting chain of custody. 

2. Data collection

Data collection follows planning to gather the physical evidence, project records, and testing samples the investigation requires. Investigators may photograph site conditions, retrieve material samples for laboratory testing, and collect design and construction documents from project participants. The scope of collection typically narrows or expands as early findings point toward specific failure mechanisms.

3. Testing standards and protocols 

Forensic testing should follow methods, standards, and protocols appropriate to the material, system, and technical question being evaluated. Relevant standards may include American Society of Mechanical Engineers (ASME) standards for mechanical systems and pressure vessels, American Welding Society (AWS) requirements for welding inspection and metallurgical testing, International Organization for Standardization (ISO) testing procedures, and ASTM E620-18 standards for reporting forensic engineering opinions. Applicability depends on the system, jurisdiction, and circumstances of the loss. 

4. Data analysis and root cause determination 

Data analysis tests the evidence gathered during collection against the range of likely failure mechanisms, rather than relying on visual observations of current conditions alone. Root cause analysis weighs potential mechanisms including design or specification errors, inconsistent code requirements, unexpected site changes, maintenance or operational gaps, and material degradation over time. 

5. Presentation of conclusions

Presentation of conclusions documents the investigation’s findings, methodology, supporting data, assumptions, and limitations in a clear and technically supportable form. Reports typically distinguish between findings directly supported by evidence and inferences drawn from professional judgment. When the findings are used in legal proceedings, expert testimony and applicable admissibility requirements may also become relevant.

How do expert testimony and Daubert standards apply? 

In federal litigation, trial judges act as gatekeepers for expert testimony under Federal Rule of Evidence 702. Courts may consider relevant Daubert factors such as testability, peer review, known or potential error rates, standards, and general acceptance, with Kumho Tire Co. v. Carmichael extending the gatekeeping function to technical and other specialized expert testimony. The December 1, 2023 amendment to Federal Rule of Evidence 702 clarified that the proponent must establish that the rule’s admissibility requirements are met by a preponderance of the evidence and that the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case. 

Forensic reports accordingly document expert qualifications and scope, issue context, testing data, analysis, and conclusions, with qualifications typically including demonstrated competence, adherence to codes such as the NSPE Code of Ethics, and, in many contexts, P.E. licensure. Engineers must also maintain objectivity, protect client confidentiality, and avoid engagements that could compromise independence. 

How are digital forensic tools used in construction claims? 

Digital forensic tools can preserve and compare project conditions over time. Building Information Modeling (BIM) can provide time-stamped records of design decisions, change orders, and as-built conditions. Laser scanning can create detailed as-built records that supplement traditional documentation. 

In fire-safety investigations, these digital records can connect documented building conditions to code, specification, and compartmentation analysis. Following the Grenfell Tower fire on June 14, 2017, forensic engineers working in relevant United Kingdom contexts may evaluate the fire-safety codes and requirements applicable to the building and time period. 

How does forensic investigation address construction site accidents?

Construction site accidents, including structural collapses, crane failures, and trench collapses, typically call for accident reconstruction distinct from contractual dispute analysis. Investigators document physical evidence, equipment condition, and site conditions before analyzing the sequence of events.

Findings may inform workers’ compensation claims, third-party liability actions, and regulatory review. Forensic investigation of these incidents commonly examines common accident causes such as excavation hazards, machine guarding gaps, and fall protection failures.

How are claims handled?

Handling a construction claim well depends on which type of claim it is and which resolution path the contract allows. The sections below walk through the most common claim categories, the mechanisms parties use to resolve them, and the cost trends currently shaping dispute value.

Common contributors to construction disputes

Contract-document errors, omissions, unclear terms, and contract-administration problems can contribute to construction disputes. Owner-directed changes and unforeseen site conditions also recur.

Project delays 

Labor shortages remain a leading contributor to delay claims: AGC survey data show 92% of construction firms struggle to find qualified workers, with 45% citing labor shortages as a direct delay cause, though industry-wide statistics never substitute for project-specific critical-path analysis. Delay analysts may apply methods such as As-Planned versus As-Built, Windows Analysis, Time Impact Analysis, or other CPM-based techniques under frameworks such as AACE Recommended Practice 29R-03. Retrospective modeled approaches may also evaluate the effect of particular delay events by comparing the actual sequence with a modeled scenario in which the event is removed or adjusted. 

Delay classification

Because delay claims involve more than timing, delay analysis may evaluate criticality, concurrency, and the relationship between events and project completion. Contractual characterization of delays as excusable, compensable, or otherwise entitled depends on the contract, governing law, notice compliance, and project-specific facts and should be distinguished from the underlying schedule analysis. A single delay may fall into more than one category, and the relief available ultimately depends on the contract terms and governing law.

Lost labor productivity claims

Lost productivity claims address a different question than schedule delay: whether disruptions caused a crew to spend more labor hours completing the same scope of work. AACE Recommended Practice 25R-03, Estimating Lost Labor Productivity in Construction Claims, guidance for evaluating lost labor productivity, and the measured-mile approach is widely used when sufficiently comparable impacted and unimpacted work periods and reliable contemporaneous data are available.

Design errors 

Design errors can carry outsized financial consequences and often implicate multiple parties at once. The Harbour Cay collapse in Cocoa Beach, Florida, on March 27, 1981, illustrates the pattern: the flat-plate residential structure suffered punching shear failure that triggered progressive collapse, and forensic investigation ultimately attributed the failure to both design and construction errors, requiring investigators to separate design responsibility from workmanship defects through structural analysis, code-compliance review, and construction-sequencing reconstruction. 

Differing site conditions

Differing site conditions claims commonly involve Type I conditions, which materially differ from those indicated in the contract documents, or Type II conditions, which involve unusual physical conditions materially different from those ordinarily encountered in similar work. On federal projects, Federal Acquisition Regulation (FAR) 52.236-2 may govern differing site conditions claims where incorporated into the contract. Investigators typically compare geotechnical data, bid documents, and site records with as-encountered conditions to evaluate the technical basis of the claimed difference.

Change orders 

Change order disputes often turn on contract administration and documentation rather than the underlying work itself. AGC ConsensusDocs offers standard construction contract documents for multiple project delivery methods, and documentation protocols that capture change order justification with photographs, changed condition reports, and cost impact assessments as the work happens tend to head off later disagreements more effectively than records assembled after a dispute begins. 

Contract administration failures

Contract-administration issues such as delayed payment certification, late time-extension decisions, failure to respond to claims, or inconsistent communication may contribute to disputes independently of technical performance. These issues are typically evaluated through the project record, contract requirements, and contemporaneous correspondence.

Claim notice requirements

Contract notice provisions may materially affect entitlement and should be evaluated early. Notice periods and consequences for late notice vary by contract and jurisdiction, so their effect should be determined from the governing agreement and applicable law.

Subcontractor pass-through claims

Subcontractors often lack direct contractual privity with the project owner, and claims arising from owner conduct may proceed through the prime contractor as pass-through or conduit claims depending on the contract and governing law. Technical and cost documentation should trace claimed impacts through the relevant contractual and project relationships.

Before or instead of litigation, parties may evaluate causation, testing data, and contemporaneous project records through structured resolution procedures. When disputes hinge on causation, parties commonly retain forensic engineering firms to evaluate the evidence.

Dispute resolution boards

Near project commencement, the parties form a Dispute Resolution Board (DRB) of impartial industry professionals. The panel monitors progress and addresses disputes as they arise, which may help reduce end-of-project claims.

Tiered resolution under AIA A201-2017

American Institute of Architects (AIA) A201-2017 Section 15 directs claims first to an Initial Decision Maker. Unresolved claims proceed to mediation and then to arbitration or litigation, depending on the method the parties select in the contract.

AAA arbitration procedures

Parties may select the American Arbitration Association’s (AAA) Construction Industry Arbitration Rules and Mediation Procedures. The rules include shorter procedures for smaller claims and procedures for large, complex cases.

Collaborative delivery models

Progressive design-build and integrated project delivery are intended to align incentives among owners, designers, and contractors and may help reduce adversarial positioning. Other dispute-avoidance tools include mediation, early neutral evaluation, and neutral review boards.

What trends affect dispute value? 

Supply chain disruptions and price escalation can increase disputed costs. Coordination among specialty subcontractors can also affect those costs. 

How can forensic analysis clarify construction disputes? 

Early forensic involvement may help preserve evidence and clarify causation questions. It may also support negotiations before a dispute escalates to litigation. 

Testing data and documented methodology may affect claim valuation. Project-specific causation analysis may also affect how a claim is resolved.

Rimkus forensic engineers bring 40+ years of experience and 900+ experts on staff to construction investigations worldwide. Contact Rimkus to learn how the team can support your investigation. 

Frequently asked questions about construction claims and disputes

What is the difference between a construction claim and a construction dispute?

A construction claim is a formal request by one party for additional time, compensation, or other contractual relief. A dispute arises only once that claim is rejected, partially rejected, or otherwise left unresolved and the requesting party does not accept the outcome.

What is the role of a forensic engineer in a construction dispute?

A forensic engineer investigates physical evidence, project records, testing data, and other technical information to evaluate the cause of a construction failure or defect and explain the basis for the resulting opinions. When those opinions are offered in litigation, applicable evidentiary requirements may also govern their admissibility.

How are construction disputes resolved?

Parties may resolve disputes through a Dispute Resolution Board formed early in the project, tiered contract procedures such as the Initial Decision Maker process under AIA A201-2017, or formal arbitration under rules such as those of the American Arbitration Association, with litigation available as a last resort.

This article is intended to provide general information and insights into prevailing industry practices. It is not intended to constitute, and should not be relied upon as, legal, technical, or professional advice. The content does not replace consultation with a qualified expert or professional regarding the specific facts and circumstances of any particular matter.