A parking garage collapse presents investigators with a deceptive puzzle. Structural failure planes can form perpendicular to major stress patterns. Initial visual inspection might suggest construction defects, but forensic analysis can reveal something more insidious: aggregate susceptible to creep with micro-cracking that developed over months rather than failing immediately. This could shift liability considerations from contractor workmanship to material specification and design decisions, transforming a straightforward construction defect claim into a complex multi-party dispute involving designers, material suppliers, and testing laboratories.
Whether investigating structural collapses, analyzing delay claims on infrastructure projects, or determining responsibility for building envelope failures, forensic engineers operate at the intersection of engineering science, contract law, and courtroom testimony.
Defining construction claims and disputes
Construction claims and disputes arise when project participants disagree over contractual obligations or technical failures. The ASCE Guidelines for forensic engineering provide the standard framework for investigating these matters and preparing reports for litigation.
The National Society of Professional Engineers (NSPE) and National Academy of Forensic Engineers (NAFE) define forensic engineering as applying engineering principles to legal proceedings, including alternative dispute resolution. Investigation findings must withstand cross-examination, Daubert challenges, and peer review.
Common claim types include payment disputes, schedule delays, change order conflicts, and responsibility allocation. Root causes range from design errors and construction defects to material failures and unforeseen site conditions.
Forensic investigation methodology
Forensic engineers typically follow a systematic five-step methodology when investigating construction claims and disputes: investigation planning, data collection, testing protocol development, data analysis, and presentation of conclusions. Each phase demands technical precision while maintaining legal admissibility standards.
Planning and evidence preservation
The planning phase determines whether sufficient evidence exists and identifies potential spoliation concerns requiring immediate preservation. Data collection requires systematic organization of design documents, construction records, and physical evidence. Building Information Modeling now provides time-stamped records that streamline claims documentation while establishing new evidentiary standards.
Testing standards and protocols
Forensic testing must adhere to established industry protocols to produce defensible results. Investigations follow recognized standards, such as ASME standards for mechanical systems and pressure vessels, AWS requirements for welding inspection and metallurgical testing, ISO standards for quality management and testing procedures, and ASTM E620-18 standards for reporting forensic engineering opinions.
These protocols address methodology, equipment calibration, and comprehensive documentation that can withstand legal scrutiny.
Root cause analysis
Critical methodological challenges emerge during analysis. Visual forensic inspections are often used to conclude that building performance failures are caused by construction deficiencies because visual observations are limited to current conditions. Comprehensive root cause analysis requires assessing all likely failure mechanisms, including design or specification errors, inconsistent code requirements, unexpected site changes, maintenance or operational gaps, and material degradation over time.
Expert testimony and daubert standards
The Daubert Standard requires trial judges to serve as gatekeepers of scientific evidence, examining whether theories can be tested, have been peer reviewed, have known error rates, follow established standards, and are generally accepted in the scientific community. The Supreme Court extended Daubert to engineers in Kumho Tire Co. v. Carmichael.
Reports should follow ASCE Guidelines and ASTM standards, containing introductory information establishing expert qualifications and scope, issue descriptions with technical and legal context, investigation results including testing data and analysis, and defensible conclusions with supporting methodology.
Professional standards require P.E. licensure, NSPE Code of Ethics compliance, and demonstrated competence. Engineers must maintain objectivity, protect client confidentiality, and refuse commissions from parties dealing with clients that could compromise independence.
Common construction claims and preventative measures
Understanding the most frequent types of construction claims and disputes helps organizations implement preventative strategies before issues escalate to litigation.
Project delays
Labor shortages dominate current delay claims. The AGC Workforce Survey reports that 92% of construction firms have difficulty finding qualified workers, with 45% citing labor shortages as causing project delays. Eighty-eight percent of firms have openings for craft construction workers.
Material availability compounds scheduling problems. AGC survey data found that 88% of firms experienced project delays, with 75% naming material shortage and long lead times as contributing factors. These statistics establish baseline expectations for delay analysis, enabling forensic engineers to distinguish between industry-wide challenges affecting all contractors and project-specific performance failures.
Forensic delay analysis applies established methodologies including As-Planned versus As-Built, Windows Analysis, Time Impact Analysis, and Critical Path Method analysis.
Preventative measures for delay claims include quality management systems such as ISO 9001, which provide systematic controls through procurement procedures, project planning, execution controls, and performance monitoring. Proactive monitoring during construction can detect emerging delay patterns before escalation.
Design errors
Design errors generate significant financial consequences and represent some of the most contentious construction claims. The Harbour Cay collapse in Cocoa Beach, Florida, on Maart 27, 1981, exemplifies design-construction causation complexity. The flat-plate residential structure experienced punching shear failure triggering progressive collapse. Forensic investigation concluded both design and construction errors contributed to the collapse, requiring investigators to differentiate between design responsibility and construction workmanship defects through structural analysis, code compliance review, and construction sequencing reconstruction.
Preventative measures for design error claims include using CMAA Standards that define contracts clearly establishing scope, responsibilities, timelines, and payment terms. Early forensic engagement during design review can identify potential failure mechanisms before construction begins, when design modifications cost thousands rather than when corrective construction costs millions.
Change orders
Change order frequency and cost follow statistically predictable patterns. Projects ranging from one million to five million dollars have historically averaged cost increases in the single digits, with significant variation across projects.
Preventative measures for change order disputes include using AGC ConsensusDocs, which provides more than 110 standard construction contracts addressing all project delivery methods and designed to fairly allocate risk among parties. These contracts incorporate best practices developed by a coalition of more than 40 construction associations, demonstrating that balanced frameworks incentivize collaborative problem-solving rather than adversarial positioning.
Documentation protocols must capture change order justification contemporaneously with photographic evidence, changed condition reports, and impact analysis. Real-time documentation prevents retrospective disagreements over change order validity.
Dispute value trends
Construction dispute values have increased substantially over recent years. This escalation reflects multiple factors including increased project sophistication, supply chain disruptions, price escalation, and proliferation of specialty subcontractors creating complex coordination challenges.
Environmental, social, and governance (ESG) requirements have emerged as a dispute category. Survey data indicate a majority of organizations identify ESG-related disputes as a potential risk in construction projects.
Digital forensic tools in construction claims
The integration of digital forensic tools has altered investigation standards for construction claims and disputes. Building Information Modeling (BIM) embedded in contracts now provides time-stamped records of design decisions, change orders, and as-built conditions, streamlining claims documentation while establishing new standards for expert testimony admissibility. Laser scanning creates comprehensive as-built records that can withstand Daubert challenges more effectively than traditional documentation methods.
ESG requirements represent an emerging investigation frontier requiring new forensic capabilities. Following incidents like the Grenfell Tower tragedy on Juni 14, 2017, forensic engineers must now evaluate compliance with evolving fire safety codes, External Wall Systems specifications, and compartmentation measures in buildings over 18 meters.
Protecting your position in construction disputes with Rimkus
Construction claims rarely resolve themselves. Early forensic involvement preserves evidence, establishes causation, and strengthens negotiating position before disputes escalate to litigation. Whether you’re facing a delay claim, investigating a structural failure, or preparing for arbitration, the quality of your technical analysis determines outcomes.
Rimkus forensic engineers bring decades of construction investigation experience to every engagement. Contact Rimkus to discuss your project.
This article aims to offer insights into prevailing industry practices. It should not be construed as legal or professional advice.Defining construction claims and disputesForensic investigation methodologyPlanning and evidence preservationTesting standards and protocolsRoot cause analysisExpert testimony and Daubert standardsCommon construction claims and preventative measuresProject delaysDesign errorsChange ordersDispute value trendsDigital forensic tools in construction claims
Protecting your position in construction disputes with Rimkus