Civil Megaprojects: The Evolving Use of Dispute Prevention and Collaborative Delivery Methods in Public Contracting

Civil megaprojects are large, complex ventures in civil engineering and construction that typically cost over $1 billion to construct. These projects generally have significant and long-lasting impacts on the economy, environment and society, and involve multiple public and private stakeholders. Typical civil megaprojects include infrastructure projects, such as highways, bridges, tunnels, airports, dams, power plants and public buildings, which require extensive planning, design, coordination and construction over an extended period of time.

In the United States, there is over $500 billion worth of civil megaprojects in the pipeline, with an average of four megaprojects per month in 2024 and a total monthly value of $9.2 billion.[i] Here are some recent examples of civil megaprojects:

The Hudson Tunnel Project (a portion of the Gateway Program), under construction in the states of New York and New Jersey, involves the construction of two new tunnels and the renovation of aging rail tunnels used by Amtrak and New Jersey Transit that were damaged by Superstorm Sandy along the Northeast Corridor. This has been deemed one of the most important infrastructure projects in the country. It is projected to be completed in 2027 at a cost of over $16 billion.[ii]

The Brightline West High-Speed Passenger Rail System is a 218-mile high-speed rail line connecting Southern California to Las Vegas. The project was originally estimated to cost $12 billion but recent estimates have reached over $21 billion. The project was planned to be completed in 2028 to align with the 2028 Los Angeles Summer Olympics but is currently scheduled to be completed by late 2028 or early 2029.[iii]

The Francis Scott Key Bridge Rebuild is a project to build Maryland’s first highway cable-stayed bridge to replace the steel arch bridge that collapsed after being struck by the MV Dali, a cargo ship, in 2024.[iv] Original estimates for the bridge rebuild were approximately $1.9 billion. Current estimates suggest that the rebuild will exceed $5.2 billion and be completed in late 2030.[v]

Given the astronomical cost of civil megaprojects and their scale, complexity and extended project schedule, as well as the high stakes involved, disputes and claims are inevitable. Based upon a recent review of over 2,000 megaprojects with an average budget of $1.28 billion in 107 countries, the top 10 contract-level causes of disputes and claims on civil megaprojects are (1) changes in scope, (2) incorrect design, (3) late issuance of design information, (4) incomplete design, (5) contract management or administration failure, (6) poor management of subcontractors and suppliers, (7) contract interpretation issues, (8) deficiencies in workmanship, (9) late or restricted access to site work phase and (10) unforeseen physical conditions. The results of these disputes and claims over the projects surveyed accounted for total additional time to the project schedules of 994 years (an average schedule overrun of 16 months, or 66.5% of the plan schedule) and total additional costs of approximately $84.5 billion (an average 33.2% increase in the project budget).[vi]

However, these contract-level disputes do not generally exist singularly, nor are they insulated from other tensions that can disrupt advancement and collaboration. As we have recently seen, geopolitical risks, such as national security, political unrest, military impacts, unanticipated tariffs on construction materials and trade restrictions, exchange rate fluctuations, changes in global trade and supply chain logistics, cyberattacks on critical infrastructure, changes in funding policies and other market conditions affecting viability, also create conflicts about what party bears the burden of such risks. While such risks increase construction costs, cause delays and threaten the economic stability of projects, civil megaprojects continue to be proposed, developed and completed.[vii]

Although parties have attempted to draft favorable language in their contracts to address anticipated tension points and the burdens associated with various foreseeable risks, owners and contractors continue to use robust tiered – progressive dispute prevention and resolution structures in an attempt to quickly and in real-time resolve issues before they negatively affect the cost or schedule of a project. 

Parties have used issue resolution ladders to initiate the resolution of an issue at the lowest possible level, successively elevating the dispute from the project field level to the engineer/project manager level, management level, senior management level or higher level until the issue is either resolved or has little impact on cost or schedule.

Parties have also used self-facilitated or third-party-facilitated partnering to improve group dynamics and strengthen collaboration, jointly retained independent experts to opine on discrete technical issues in dispute, and binding and nonbinding dispute prevention and resolution boards with experience in construction, law and engineering to provide advisory opinions or reasoned recommendations.

If these early attempts to resolve issues are unsuccessful, parties have used third-party evaluative mediation to facilitate communication and identify settlement options, followed by arbitration to obtain binding resolutions.

In addition to implementing robust dispute resolution processes, parties have begun to apply integrated project delivery (IPD) to create collaborations and reduce disputes among owners, architects, contractors and subcontractors. IPD fully integrates project teams to take advantage of everyone’s knowledge to maximize project outcomes. It is the highest form of collaboration because all three parties (owner, architect, constructor) are aligned by a single contract. IPD can also integrate and apply practices or philosophies to more traditional delivery approaches, such as construction manager (CM) at risk, design-build or design-bid-build (where the owner is not a party to a multiparty contract). In addition to not having a multiparty contract, IPD as a philosophy features “traditional” transactional CM at risk or design-build contracts, some limited risk-sharing (e.g., savings splits) and some application of IPD principles.[viii]

IPD projects involve collaborative, integrated teams working to accomplish goals by using building information modeling (BIM) to integrate information and provide dependability, consistency and interconnectivity to achieve better designs, better projects and better value. Decisions are made in real time by consensus, thereby avoiding conflicts and risks, and performance incentives are shared.[ix]

Although many of these alternative dispute resolution (ADR) processes and IPD philosophies may be used in contracts between the private sector as a matter of agreement, the use of any of these processes in public contracts for megaprojects will be limited by the law in the state in which the project is located.

For instance, with regard to ADR, as of 2024, only 15 state departments of transportation used some form of dispute resolution/review board as part of their dispute resolution process, 18 state departments of transportation were expressly authorized to use mediation and 16 state departments of transportation either had an express ability to arbitrate construction disputes based on their written processes or were required to arbitrate by statute.

Thirty-three departments of transportation and their applicable state laws provided that contractors can sue in the state’s general jurisdiction courts, with litigation in the state courts being the exclusive remedy; 7 other states had created special bodies that hear contract disputes with state agencies, with proceedings similar to those used in a court of general jurisdiction;13 departments of transportation used administrative boards as a means of resolving contractor claims.[x]

As the public contracting process continues to strive for a more collaborative process, the progressive design-build (PDB) project delivery system, which is widely used in the private sector, is a precursor to the IPD delivery method. Currently, 35 states fully or widely permit the use of the PDB delivery method, authorizing the procurement of the designer-builder prior to setting an overall contract price. Twelve states permit the limited use of the PDB method. One state (Pennsylvania) permits the use of the design-build method, but not the PDB method. Two states (Alabama and Wisconsin) prohibit the use of both delivery systems.[xi]

As the philosophy regarding public contracts and the design-build and PDB delivery methods evolves, it is anticipated that the state statutes regarding the use of ADR  processes and the use of IPD will also evolve to permit public owners to better manage conflicts and share in the risks and rewards of the project beyond traditional collaborations.

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Lisa D. Love, Esq., FCIArb., is an arbitrator, mediator and neutral evaluator with JAMS and a member of its Global Engineering and Construction Group. She is a commercial transactions attorney with extensive experience in real estate, construction and finance. She has worked on most sides of a transaction—including as an owner, lender, equity investor and public agency representative—and brings a broad real estate, construction and commercial transactions background to her work as a neutral.

 

Ms. Love has served as a neutral in complex commercial matters and legal disputes involving construction defects, delay claims, breach of contract, investments, corporate finance, cryptocurrency, securities, mergers and acquisitions, energy, licensing, franchises, commercial real estate and antitrust.

Disclaimer: The content is intended for general informational purposes only and should not be construed as legal advice.  If you require legal or professional advice, please contact an attorney.

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[i] Megaprojects Continue to Shape Construction Industry, Over $500 Billion in Pipeline, ConstructConnect, January 21, 2025

[ii] Hudson River Tunnel Project between New York and New Jersey, Build America, U.S. Department of Transportation

[iii] Connecting Las Vegas to SoCal

[iv]  Key Bridge Rebuild Design Revealed, Maryland Transportation Authority, February 4, 2025

[v] Maryland Transportation Authority Releases Updated Estimates for Cost Range and Schedule for Francis Scott Key Bridge Rebuild, November 17, 2025

[vi] Seventh Annual CRUXInsights – Changing the Narrative – Analysis and Claims and disputes September 27, 2024

[vii]  Integrated Project Delivery | Associated General Contractors of America

[viii] Id.

[ix] Integrated Project Delivery | Associated General Contractors of America

[x] National Academies of Sciences, Engineering, and Medicine. 2024. Resolving Construction Disputes: Review of State DOT Processes. Washington, D.C.: The National Academies Press., Michael C. Loulakis, Contributor

[xi] 2025 Design-Build State Statute, Design Build Institute of America

Toolbox Talk Series: GenAI Document Review

This month's installment of the Toolbox Talk Series explored the use of Generative AI in document review, which as construction lawyers know can be voluminous. Jack Bandlow and Travis Olson from BRG provided an overview of how lawyers can use GenAI to make document review in construction litigation more efficient. 

Like other uses of GenAI, it is a tool that is not designed to replace lawyers. Rather it helps eliminate or reduce mundane or tedious tasks that are not the highest and best use of a lawyer's time. The AI-powered document review platforms are designed to recognize patterns in documents and transforms words and text into "vectors" to group concepts with similar meanings. For example, whereas a traditional keyword search for "weather delay" will only return hits on that keyword, a search utilizing vectoring will also search for conceptually similar terms, even if the keyword does not match. These tools can use natural language searches to return results that a responsive to the prompt. 

Jack and Travis also discussed the use and creation of prompts to obtain results from AI tools. For example, the prompt can instruct the AI prepare a response in a particular tone and scenario. Additionally, bad prompts yield bad results. A good, well-thought and structured prompt will provide a much better response. 

Finally, Jack and Travis discussed using AI agents to automate tasks and how to ensure that client data remains secure and to control file permissions to data. 

Thanks to Jack and Travis for an insightful presentation. 

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Author and Editor Brendan J. Witry is an Associate at Laurie & Brennan LLP. His practice focuses exclusively on representing and advising owners, contractors, and trade contractors in construction disputes at all stages.

Consultant Corner: The Hardest Case to Prove: Causation in Cumulative Impact Claims

Introduction

Cumulative impact claims are among the most challenging disputes in construction law. Often called the “silent killer” of project productivity, these claims allege that the combined effect of numerous changes, not any single one, causes significant inefficiencies, disruption, and cost growth.

While contractors may have little trouble showing that productivity declined or costs escalated, the real difficulty lies in proving causation. Dispute resolution forums require more than an assertion of widespread disruption; they demand a disciplined demonstration that the inefficiencies were caused by the accumulation of changes, were unforeseeable, and were not attributable to other factors such as poor management, labor shortages, or weather.

From a practitioner’s perspective, this article examines the unique challenge of causation in cumulative impact claims and provides insights into the analytical approaches attorneys and experts can leverage when these disputes arise in arbitration, mediation, or litigation.

What Makes a Cumulative Impact Claim Distinct

Unlike discrete claims tied to specific events, cumulative impact claims argue that individually manageable changes, when combined over time, erode productivity in ways no single change order captures. The argument is that frequent owner-directed modifications, design clarifications, and scope adjustments collectively fragment workflow, cause rework, stack trades, and disrupt sequencing.

These claims are most often seen on large or complex projects where constant change becomes the norm. Yet the very nature of these claims, which focus on systemic disruption rather than isolated events, make them difficult to prove.

The Burden of Causation

To succeed in a cumulative impact claim, a contractor must meet three key burdens:[1]

1. Establish a causal link between the accumulation of changes and the alleged disruption.
2. Show that the impact was unforeseeable at the time of contracting or when changes were accepted.
3. Demonstrate that the disruption was not caused by other factors, including the contractor’s own shortcomings.

Each of these burdens presents its own challenges.

Establishing the Causal Link

Courts and arbitral panels expect more than evidence of a high volume of change orders. The claimant must demonstrate how the timing, frequency, and interaction of changes disrupted workflow and reduced productivity. Simply pointing to the number of changes is not enough.

The most effective claims weave together contemporaneous records, project schedules, and productivity data to tell a compelling story of cause and effect. Without this, even a project riddled with disruption may fail to meet the evidentiary standard.

Demonstrating the Impacts Were Unforeseeable

Most contracts allocate risk for changes and disruptions to some extent. To establish entitlement, the contractor must show that the cumulative impact went beyond what the parties reasonably contemplated. If disruption is viewed as an expected byproduct of the contract or if the contractor failed to raise concerns in real time, the claim often collapses.

For attorneys and other dispute resolution professionals, the key question becomes whether the alleged cumulative effect was an unexpected consequence of the changes, or simply a foreseeable outcome the contractor should have anticipated.

Isolating Cumulative Impact from Other Causes

Even when disruption is proven, it must be distinguished from other contributing factors. Poor planning, resource shortages, labor disputes, weather events, or concurrent delays can all blur causation. Adjudicators are especially wary of claims that appear to mask contractor inefficiencies under the guise of cumulative impact.

Strong claims directly address and separate out these other factors, demonstrating that while multiple causes may exist, the cumulative effect of owner-directed changes was a substantial driver of productivity loss.

Analytical Approaches for Demonstrating Causation

Attorneys representing contractors or owners in these disputes must rely on expert analysis. Several methodologies are commonly used, each with strengths and limitations.

System Dynamics Modeling

System dynamics is becoming one of the most comprehensive approaches for cumulative impact claims. It simulates how projects evolve over time based on interactions such as workforce efficiency, rework cycles, frequency of changes, and schedule compression.

Unlike traditional methods, system dynamics captures the cause-and-effect feedback loops, time delays, and nonlinear behavior that characterize cumulative disruption. Forensically, it allows an expert to demonstrate not just that productivity loss occurred, but how and why it occurred across the life of the project.

For attorneys, this provides a transparent and compelling narrative, one that helps decision-makers understand the mechanisms of cumulative impact in a way that simple cost comparisons cannot.

Measured Mile and Modified Measured Mile

The measured mile method compares productivity in an “unimpacted” portion of the project to a disrupted portion. Where no fully undisturbed period exists, a modified measured mile may be used.

These methods are widely accepted but have significant limitations in cumulative impact disputes:

• On heavily disrupted projects, no truly unaffected period may exist.
• Overlapping disruptions make it difficult to isolate impacts.
• External events such as weather or supply chain delays can confound results.

While useful as part of a broader evidentiary framework, measured mile analyses rarely succeed on their own in proving entitlement to cumulative impact claims.

Total Cost and Modified Total Cost Approaches

In some cases, contractors present claims by comparing actual costs to the original estimate, attributing the difference to disruption. These “total cost” approaches are generally disfavored in dispute resolution. They are often seen as blunt instruments that attempt to shift all overruns to the owner without isolating causes.

Such claims typically succeed only when no other method is feasible and when the contractor can show that its estimate and actual costs were reasonable and that it bore no responsibility for the overruns. In practice, this is a high bar that few claims can meet.

Case Study: J.A. Jones Construction Co. – Limits of Measured Mile in Pervasively Disrupted Projects

Source: Appeal of J.A. Jones Construction Co., ENGBCA No. 5528 (1995)

This case is directly relevant to the central themes of this article, particularly the difficulty of proving causation, the challenge of identifying truly “unimpacted” work, and the limitations of relying on single-method analyses such as measured mile. J.A. Jones illustrates the precise evidentiary hurdles that arise when cumulative disruption affects every phase of a project, making traditional analytical techniques insufficient on their own.

Summary of the Dispute

The contractor was engaged in constructing a federal courthouse that experienced continuous design revisions, late approvals, and owner-driven scope adjustments. Although each individual change appeared modest, their frequency and overlap disrupted sequencing, increased trade interference, and eroded workflow stability. J.A. Jones sought recovery for cumulative impact, arguing that the aggregation of owner-directed modifications caused substantial productivity loss.

To demonstrate inefficiency, the contractor attempted a measured-mile analysis. However, the Board found that the project had no period of unimpacted performance, which rendered the measured-mile results non-applicable. Because disruption permeated all phases of the work, there was no valid baseline against which to measure labor productivity. The Board therefore rejected the measured-mile approach, not because cumulative impact did not exist, but because the analytic method was unsuited to the circumstances.

Rather than dismiss the claim outright, the Board examined contemporaneous project documentation, including daily reports, manpower records, evidence of resequencing, and patterns of workflow fragmentation. These materials helped establish that owner-directed changes materially contributed to productivity degradation, while also allowing the Board to separate owner-caused disruption from contractor-driven inefficiencies.

Relevance to Causation and Expert Analysis

J.A. Jones demonstrates that even when every available productivity comparison is distorted by widespread disruption, cumulative impact may still be recoverable if the claimant provides a clear, evidence-based causation narrative. The case underscores that:

• measured mile is not universally applicable;
• causation must be supported by multiple forms of evidence; and
• contemporaneous project documentation often becomes the most persuasive tool.

This case reinforces the need to build cumulative impact claims around mechanisms of disruption, not simply numerical comparisons.

Why This Matters for Attorneys in Dispute Resolution

For those litigating or arbitrating cumulative impact claims, the challenge is not proving that disruption occurred—most large projects experience it. The challenge is proving causal entitlement: that the disruption was caused by cumulative changes, was unforeseeable, and was not caused by the contractor.

Attorneys must therefore focus their strategy on evidence that ties productivity losses directly to the aggregation of changes. This often requires:

• Contemporaneous documentation such as daily reports, meeting minutes, and correspondence.
• Forensic schedule and productivity analysis performed by qualified experts.
• A clear narrative that distinguishes cumulative disruption from other project challenges.

The most effective cases combine these elements into a story that is accessible to arbitrators, judges, and mediators, many of whom may not have technical construction backgrounds.

Practical Takeaways

• Document early and often. Contractors who fail to flag concerns about cumulative disruption during execution often undermine their own claims later.
• Build causation step by step. Strong claims link specific clusters of changes to measurable impacts, supported by contemporaneous records.
• Beware of overreliance on formulas. No single method, including measured mile, total cost, or otherwise, will suffice in isolation. Use multiple approaches to triangulate the truth.
• Anticipate skepticism. Dispute resolution forums are wary of cumulative impact claims, viewing them as attempts to shift unanticipated costs. Expect to face rigorous scrutiny on causation.

Conclusion

Cumulative impact claims represent one of the most difficult frontiers in construction disputes. They ask courts, arbitrators, and mediators to look beyond individual changes and recognize a systemic effect that is hard to quantify. Success hinges on causation: proving that inefficiencies were caused by the accumulation of changes, that they were unforeseeable, and that they were not the contractor’s own doing.

For attorneys, the implication is clear: these cases require careful strategy, strong documentation, and expert analysis that can withstand cross-examination. Without that foundation, even genuine disruption may fail to result in recovery.

[1] AACE International’s Recommended Practice RP 130R-23, Demonstrating Entitlement to Cumulative Impact Claims in Construction, provides additional detail in this area from a practitioner’s perspective.

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Author Stephen P. Warhoe, PhD, PE, CCP, CFCC, FAACE, is a Senior Director at Arcadis and an expert in delay, disruption, and productivity loss on complex projects. He has nearly four decades in the construction field, is a university professor in construction management, and has testified extensively as an expert witness in construction disputes.

Editor Thanh Do, PhD, PE, is a Director at BRG's Global Construction Practice. He specializes in root cause investigations of structural failures, standard of care evaluations, construction and design defect analysis, Design-Build delivery, early dispute resolution, and trial visualization. 

Contracting Chaos? How Mid-America v. US Department of Transportation is Upending DBE Certifications

Since the early 1980s, Disadvantaged Business Enterprise (DBE) programs including the one implemented by the US Department of Transportation (DOT) have been in effect. The DBE program began under Title VI of the Civil Rights Act and has been reauthorized by Congress in various bills over the years. Generally, these DBE programs have required that ten percent of federal highway construction funds be paid to small businesses controlled and owned by “socially and economically disadvantaged individuals.” Certain minority and women owned businesses have been given a presumption of disadvantage to facilitate their participation in federally‑assisted DOT contracting. While any person may qualify as socially and economically disadvantaged regardless of their race or gender, certain racial groups and women are rebuttably presumed to be disadvantaged. All other applicants seeking DBE status who are not presumed disadvantaged on the basis of their racial or female status must prove, by a preponderance of the evidence, that they are socially and economically disadvantaged.

Many states have enacted similar requirements governing state and local projects. Recently, the presumption of disadvantaged status has come under attack in Mid‑America Milling Company v. U.S. Department of Transportation[i] pending in the U.S. District Court for the Eastern District of Kentucky. The results of Mid-America represents a drastic change to the DOT’s DBE program for federal DOT contracting. 

Any contractors bidding and working on DOT and other federal and certain state projects are familiar with DBE programs and take them into account while bidding projects with DBE goals. Some have even lost contract awards to DBE firms due to not receiving the presumption of DBE status. While the long-term implications of Mid-America are not clear, it will impact DBE status and how certain federal projects are awarded.

The Mid-America case began in October 2023 when plaintiffs, Mid-America Milling, LLC and Bagshaw Trucking Inc. (Plaintiffs), who both regularly bid on DOT funded contracts impacted by DBE goals filed suit against the DOT seeking a preliminary and permanent injunction and a declaratory judgment seeking to end the DBE program. Plaintiffs claimed that the DBE program violated the equal protections afforded under the Fifth Amendment of the United States Constitution. Neither plaintiff had a presumption of disadvantage status and had lost out on federally funded contracts to DBE firms even when their bids were lower. The Plaintiffs argued that the DBE program discriminated against them.

The Court found that the DOT’s DBE program had carved out preferences for only some minority groups (race and gender), it was not tied to any foreseeable conclusion, and it failed to be narrowly tailored. For these reasons, the Court held that the Government had failed to justify its discriminatory policies and the Plaintiffs would likely prevail on the merits of their constitutional claims. Ultimately, the Court found that Plaintiffs were entitled to a preliminary injunction. Plaintiffs requested that the DOT be enjoined from implementing the DBE’s race and gender presumptions nationwide.  However, the Court denied such broad request for relief and limited the injunction to the Plaintiffs and later clarified the injunction as being applicable to any DOT contracts impacted by DBE goals upon which Plaintiffs bid in any state in which Plaintiffs bid on such contracts.[ii] In essence, the Court held that race and gender classifications and the presumption of disadvantaged status violate the Constitution’s guarantee of equal protection.[iii]

In 2025, the Government had changed its position and began to agree with Plaintiffs. The Government and Plaintiffs then submitted a Joint Motion for Entry of a Consent Order asking the Court to enter an order finding that the use of DBE goals in a jurisdiction where any DBE in that jurisdiction was determined eligible based on race or sex-based presumption violates the equal protection component of the Due Process Clause of the Fifth Amendment.[iv]  There has been no ruling on this Joint Motion as briefing on this issue is still ongoing.

In response to the rulings in the Mid-America case, the DOT issued a proposed Interim Final Rule (IFR) effective October 3, 2025, to ensure that the DOT operates its DBE program in a “nondiscriminatory fashion” and in line with the Constitution.[v] The IFR eliminates the presumption that a business is “disadvantaged” solely because of the owner’s race or gender. Similar changes are reflected in 49 CFR §26.67. DBE participation requirements are also temporarily suspended and payments will not count towards DBE participation goals until the recertification process is completed. Some states have followed the IFR by suspending DBE goals on various projects, including Missouri, Virginia, and California until recertification of DBE contractors based on the new standards is completed.

With respect to DBE certifications under the prior rules, the IFR immediately suspends existing DBE certifications and requires previously certified DBE firms to submit new applications proving that they are eligible for certification under the IFR. The IFR requires each Unified Certification Program (UCP) to re-evaluate any currently certified DBE, recertify any DBE under the new certification standards, and to decertify any prior DBE that does not meet the new certification standards.[vi]

Under the IFR, to achieve certification, all applicants (new and previously certified applicants) must demonstrate by a preponderance of the evidence a social and economic disadvantage based on their own experiences and circumstances within American Society.[vii] Specifically, the IFR provides the following guidelines for an applicant seeking DBE certification:

(1) to satisfy the social and economic disadvantage requirement and ensure such determination is not based in whole or in part on race or sex, an applicant must provide a personnel narrative that establishes the existence of disadvantage by a preponderance of the evidence based on individualized proof regarding specific instances of economic hardship, systemic barriers, and denied opportunities that impeded the applicant’s progress or success in education, employment, or business,

(2) the personal narrative must state how and to what extent the impediments caused the owner economic harm, and must establish that the owner is economically disadvantaged relative to similarly situated non-disadvantaged individuals and 

(3) the applicant must attach to the personal narrative a current personal net worth statement and any other financial information he considers relevant. To succeed in the recertification process, applicants must collect and submit the required financial documentation and ensure that their personal narrative clearly outlines the specific barriers that they have faced that justify DBE status. Remember the IFR is new to all parties involved including contractors and the various certifying agencies and it is key to maintain an open line of communication.

While the IFR did not provide detailed information on how UCPs should reevaluate existing DBEs, it is presumed that UCPs will follow current standards applicable for firms that were not presumed to be disadvantaged. Currently, there is no specific deadline by which a UCP must complete its reevaluation process. In fact, 49 CFR § 26.111 simply states that a UCP must reevaluate each currently certified CBE firm “as quickly as practicable.” 

There is still a great deal of uncertainty about how the new standards in the IFR will impact DBE programs at both the federal and state levels. For Unified Certification Programs (UCPs), the required reevaluation process is entirely new, and they must interpret and apply these revised rules without delay. As a result, many UCPs are facing challenges in understanding how to administer their reevaluation responsibilities in order to avoid inconsistency and compliance issues.  Ultimately, some currently certified DBE firms may not meet the new standards.  As a result, they may be unable to participate in certain projects so that the pool of eligible DBE firms may decrease leading to a decline in DBE participation rates. 

There is no doubt that the Mid-America case and related IFR will cause disruption to contractors on certain DOT and federally funded projects, but in the long run, there could be more opportunities as the DBE participation goals will likely drop. But keep in mind that the Mid-America case will be appealed and the ultimate outcome could change.  In the interim, contractors wanting to maintain or achieve DBE status for various DOT projects should start the process of seeking certification or recertification based on the new standards established by the IFR.

AI as Co-Counsel: How Litigators Can Leverage AI for Depositions, Experts, and Trial Preparation

Artificial intelligence is everywhere right now, and the legal industry is no exception. It’s a regular feature at CLEs and in client discussions because lawyers are discovering that careful use can save both time and money. But AI is no longer reserved for e-discovery vendors. Litigators are using AI for trial preparation—helping identify themes, test case theories, summarize voluminous records, refine expert testimony, and streamline depositions.

While AI is not able to read a witness, gauge credibility, or build trust with a jury like lawyers, it can make preparation more efficient and thorough and help present information in a more digestible and compelling way. Below are practical ways litigators can weave AI into their everyday litigation practice and not get left behind.

Sharper Research, Stronger Cases

Building a strong case starts with a solid grasp of the legal concepts, which often means thorough legal research at the outset. We have all heard cautionary tales of lawyers submitting AI-drafted motions to the court that cite hallucinated (fabricated) cases for propositions of law that don’t exist. But if used properly, AI can enhance—not replace—traditional research methods.

AI can help you come up with better search terms to get to the cases you need. Start by defining the issue and breaking it into core components like the cause of action or doctrine you want to research, key contract language or clause types, procedural posture, remedy sought, and any industry‑specific terminology. Then ask AI to generate jurisdiction‑specific term variants and draft Boolean strings designed to target cases addressing your issue. Ask it to include or exclude terms that commonly create false positives, suggest how courts in your venue typically frame the concept, and flag time filters tied to rule/law changes that may impact your results. You can incorporate key fact patterns you think are material to the case’s holding and ask for search terms to help identify similar fact patterns in the results. As you review your initial search results, prompt AI to refine the terms and strategy.

Once you have identified the key cases, AI can quickly and efficiently summarize holdings, extract controlling standards, and highlight fact patterns most analogous to your case. AI can also help you distinguish cases cited by your opponent to use in response to motions or at hearings. But remember, treat the AI outputs as starting points: you should always verify the law, read the full opinion, and Shepardize or KeyCite before relying on or citing them for any proposition.

Crafting Case Themes That Stick

Once you have a solid legal foundation, you need a compelling narrative that resonates with a factfinder or judge. Every litigator knows that the most successful themes do more than summarize facts or legal issues—they evoke fairness, credibility, and common sense. AI can be a surprisingly effective sounding board for developing and refining your trial theme to one that sticks.

Start by giving AI a high-level overview of your case: the core claims and defenses (or include the pleadings), the key documents or facts, and your preliminary theory of the case. Then ask it to propose case themes from the perspective of your client, the opposing party, and even a neutral observer. By shifting perspectives, AI can help reveal which themes naturally align with the evidence and which sound forced or inconsistent. By anticipating the opposing party’s themes, you can create a strategy and develop evidence to counter that narrative.

Once you have several potential themes that support your case, use AI to suggest variations on the themes, test and strengthen them. For example:

• Support the theme with evidence: Ask AI to identify which documents, witnesses, or facts from your case best support each theme. If your message is that “the delay resulted from the general contractor’s failure to coordinate trades,” AI can flag the communications, reports, or schedules that most effectively illustrate that idea.
• Play devil’s advocate: Ask how opposing counsel might frame the same facts or what emotional counter-narrative a jury might find more compelling. The exercise helps you anticipate and inoculate against those attacks at hearings, in depositions, and ultimately, at trial.
• Sharpen your messaging: AI excels at distilling complex ideas into concise, impactful phrasing. You can prompt it to make your theme more memorable, approachable, or emotionally resonant. For example, I recently used AI to help weave a trial theme into an opening statement I drafted, and it suggested some memorable one-liners to include throughout that reiterated the theme and drove home the points I wanted the factfinders to remember.

Litigators should always treat AI outputs as brainstorming sessions. Critically analyze the results and decide which theme feels authentic to you and your client and aligns with the facts, tone, and posture of the case.

Depositions and Expert Reports with Fewer Blind Spots

Deposition preparation is one of the easiest ways to incorporate AI into your litigation practice. Lawyers can shave hours off their preparation by using AI tools to isolate a single issue or topic from voluminous discovery documents, summarize prior depositions, and create charts on key issues. AI can generate a timeline of key events or summarize a lengthy document for you to easily reference throughout a deposition or in witness preparation. For example, within seconds, it can extract and create a chart of all contract provisions on specific topics like change order requests or scheduling requirement; it can also breakdown each witness/party’s position on an issue like who they claim is responsible for the defective condition.

You can also use AI to prepare your fact or expert witnesses for their testimony. Ask AI to analyze prior deposition transcripts or reports and flag inconsistencies or vulnerabilities. Most of the outputs will be ones you’ve already identified and prepared for, but it will likely generate a few ideas you had not previously considered. Prep your client for how to handle those issues. AI can even create a mock cross-examination and generate questions in a variety of tones. This can be used by your colleagues to conduct a mock cross examination of your client. 

Construction cases usually involve technical or data-heavy expert testimony. AI is an issue-spotting tool that you can use both offensively and defensively for expert reports and depositions. For example, before finalizing your expert’s report, ask AI to identify any analytical gaps or flag any inconsistencies within the report and challenge the conclusions from the opposing parties’ perspective. You can then address any shortcomings before finalizing the report—and before a Daubert challenge. AI also cuts down on the time it takes to synthesize CVs, expert publications and sources, prior Daubert rulings, and court opinions in order to identify impeachment angles. While AI cannot replace the expert (or lawyer’s) judgment, it accelerates the review process, helps lawyers ask sharper, more informed questions, and eliminates the element of surprise for your witnesses.

Ethics and Guardrails

As with any litigation tool, traditional ethical rules still apply. AI’s efficiency is no substitute for professional judgment, supervision, or confidentiality. Lawyers should never upload client materials to public systems and should only use secure, firm and client approved AI platforms to protect privileged and confidential data. And as mentioned above, you should always verify the results. AI can misinterpret nuances that lawyers know matter—words like “delay,” “impact,” or “notice” may carry specific legal significance that AI does not pick up on. Treat AI as a non-lawyer assistant that requires attorney oversight. Use it to expand your creativity, see the case from various perspectives, and make your advocacy more persuasive.

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Debrán O’Neil is a litigation partner in Carrington, Coleman, Sloman & Blumenthal, L.L.P.’s construction practice group in Dallas, Texas. She primarily represents manufacturers and public and private owners and developers in connection with the construction of large commercial and infrastructure projects throughout Texas. She can be reached at doneil@ccsb.com.

Toolbox Talk Series: Understanding Procore and Other Common Construction Applications

After a summer break, the Division 1 Toolbox Talk Program returned for an insightful presentation from Rawle Sawh of Gilbane Construction Co. and Andy Kunkle of ADJ Studios about project management software used in construction. Construction projects of all sizes and varieties rely in some part on project management platforms like Procore to track the project's progress. While this software is robust and typically offers a variety of tools and datapoint, it does not track everything - leading to "data silos." 

As a result, modern complex construction projects will rely on a variety of different tools both on the job site and far removed. The project management software is used to track schedules and RFIs whereas back-office enterprise resource planning databases will power companies' financial systems. 

Large Language Models (LLMs) such as ChatGPT, have also found their way into several aspects of life and work, including the construction industry and legal practice. Our presenters discussed how LLMs can "talk" across platforms and connect copious amounts of information across platforms quickly and in actionable ways. A supervisor or foreman can access project data from their smartphone instantaneously which only a few years ago would have necessitated a trip to the job trailer. 

With new technology comes growing pains and novel legal issues. The presenters discussed how attorneys both internal and external need to know what capabilities exist and what data can be retrieved before agreeing to e-discovery protocols. Knowing what data is available and where it is stored in advance can help minimize headaches for counsel and client alike. 

Thank you to Rawle and Andy for a timely and insightful presentation. 

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Author and Editor Brendan J. Witry is an Associate at Laurie & Brennan LLP. His practice focuses exclusively on representing and advising owners, contractors, and trade contractors in construction disputes at all stages.

Environmental Due Diligence - What's The Hold Up?

Construction projects do not occur overnight. Regardless of project size, projects take anywhere from months to years to design, build, and complete. Perhaps one portion of the construction project that is always subject to criticism, particularly on large infrastructure projects, is environmental review and the applicability of environmental laws, requiring specific environmental thresholds, and the National Environmental Policy Act (“NEPA”). Contractors are well aware of the timeline and potential impacts that NEPA review might have on a project, and many contractors and national groups have expressed a desire to ensure that NEPA does not interfere with or altogether block the deployment of large infrastructure projects.

On federal funded or assisted projects, contractors must comply with strict environmental oversight because the project is tied to federal funding or federal agency accountability. Contractors must also comply with environmental and sustainability mandates under the Federal Acquisition Regulation (“FAR”). The FAR requires federal construction project contracts to include clauses concerning hazardous materials, emergency planning, waste reduction, environmental management systems, and greenhouse gas disclosures.

Beyond water and materials, federal project are subject to NEPA, which requires the public disclosure or environmental impacts as well as proposed alternatives to the project. NEPA requires federal agencies to prepare environmental impact statements for infrastructure projects if they do not meet a categorical exclusion. Where the environmental impacts are unknown, projects must undergo an environmental assessment (“EA”). If the EA concludes that the project will have an environmental impact, an environmental impact statement (“EIS”) is required. As the understanding of potential impacts to the environment posed by proposed construction evolves, so has litigation. In recent years, litigation has further posed potential impacts to projects, expanded the scope and complexity of environmental reviews, prolonged the process, and elevated compliance costs.

The Supreme Court was recently tasked with determining whether the NEPA has evolved from a public disclosure law to a tool used to block projects altogether in Seven County Infrastructure Coalition v. Eagle County, Colorado. Here, the Surface Transportation Board (“STB”) received a proposal for the construction of an 88-mile railway with potential to quadruple oil production in the Uinta Basin of Utah by connecting its oil fields to the national rail network and delivering crude to refineries on the Gulf Coast. The STB also published a final EIS report, totaling 3,650 pages. The EIS focused on the direct effects of the project itself rather than the potential downstream effects resulting from increased crude oil production from the project and transportation. Environmental groups filed suit, alleging violations of NEPA, the National Historic Preservation Act (“NHPA”), and more. These plaintiffs also contended that the NEPA analysis failed to address risk of accidents from the site and emissions in “environmental justice communities” on the Gulf Coast.

The D.C. Circuit Court of Appeals found for the environmental groups, holding that the STB acted arbitrarily and capriciously when it failed to quantify the downstream effects of increased oil and gas production. The DC Circuit also found that the STB did not assess indirect impacts to the environment and did not provide adequate attention to comments brought before them regarding the financial viability of the railway. In failing to properly weigh the economic and environmental costs of the project, the DC Circuit found that the STB failed to supply and acceptable rationale as to its consideration of relevant policies.

The Supreme Court  reversed the DC Circuit’s opinion in an 8-0 ruling. Writing for the Court, Justice Kavanaugh opined that federal agencies are only required to evaluate the environmental impacts directly tied to their decisions, not every potential consequence of a project. The STB “did not need to address the environmental effects of upstream oil drilling or downstream oil refining. Rather, it needed to address only the effects of the 88-mile railroad line. And the Board’s (study) did so.” The Court stressed that NEPA is a procedural statute – not one that dictates substantive outcome – and that courts must avoid micromanaging agencies’ judgment calls about the detail or scope of environmental review, deferring to reasonable agency choices. So long as the agency provides a rational explanation for excluding certain effects from analysis, the Court opined, agencies are entitled to substantial deference in making scoping judgments under NEPA. Justice Kavanaugh also wrote that courts must only intervene in agency decisions if the decision is outside a zone of reasonableness. Prior judiciary failure to do so has slowed down and blocked projects, causing “litigation-averse agencies to take ever more time and to prepare ever longer EISs for future projects.”

Though the impact of the Seven Counties decision remains to be seen, the opinion may go hand-in-hand with the current administration’s push for shorter review timelines and greater use of categorical exclusions to streamline approval for federal infrastructure projects. The decision reduces the scope and duration of environmental review for federal projects, allowing agencies to focus only on the direct and reasonably foreseeable impacts of the specific project. For the construction industry, the decision might result in fewer multi-year reviews that stall projects and require lengthy EAs and EISs. Additionally, the decision, coupled with the current administration’s push to hasten approvals for projects, might be the next step to ensuring that projects are not overturned due to speculative or minor analytical omissions.

Perhaps the biggest “winners” following the decision are construction companies often engaged in public-private partnerships (“P3s”). P3s rely on both federal approvals and private capital. The Seven Counties decision may make P3s more attractive and more predictable by reducing environmental-review uncertainty and the litigation risk that has consistently discouraged private investors. The narrower scope of NEPA review could result in faster environmental approvals, lower upfront due diligence costs, and fewer procedural challenges and litigation that delay projects. For construction companies that participate in P3s, the decision could lead to clearer timelines and reduced regulatory risk. The Seven Counties decision may also result in increased confidence and incentive for the federal, and perhaps state and local, government to engage in P3s.

The decision does not eliminate environmental safeguards applicable to projects; the FAR is still applicable to federal construction projects, as are regulations for stormwater pollution, hazardous waste, and more. Though this decision may have made project development and due diligence clearer in one respect, contractors still must comply with federal regulations and ensure they perform under the terms promulgated by the contract.

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Author and Editor W. Tyler Lloyd is an attorney in Stites and Harbison, PLLC's construction group in Louisville, Kentucky. Tyler represents owners, general contractors and subcontractors in all phases of construction projects, including contract negotiation and conflict resolution. Tyler can be contacted at tlloyd@stites.com.