Wednesday, December 17, 2025

Message from the Chair: Joe Imperiale (Volume II)

When I last wrote, I had just stepped into the role of Division 1 Chair, and now, somehow, 2025 is already coming to a close. Chairing Division 1 has confirmed many things I already knew about the ABA Forum—and taught me a few new ones. Let me share seven lessons learned that recap 2025. 

1. The Division 1 Steering Committee is determined to leave Division 1 better than they found it.

As with anything great, it starts with the people. If Division 1 looks like a well-oiled machine from the outside, it’s only because of the talent and hard work of its Steering Committee. This group of talented construction lawyers from around the country are at the forefront of construction litigation and dispute resolution trends and share their experience with Division 1’s significant membership through their work on the Steering Committee. The Division 1 Steering Committee currently consists of the following lawyers:

The Steering Committee members help put together a remarkable amount of programming that is offered by Division 1, including:

  • The Dispute Resolver blog, providing weekly content on construction disputes, trends, and practical tips.
  • Toolbox Talks, our web-based, half-hour, lunchtime webinars throughout the year on topics relevant to construction industry dispute resolution.
  • Three-hour practicums at each national conference, giving construction litigators real-world, hands-on skills and lessons from experienced practitioners and industry experts.
  • National conference lunch programs on timely and practical topics.
  • Division 1 social events that keep our community connected, collaborating, and occasionally arguing about who has the best expert cross-examination war story.

Delivering this much high-quality content is no small task, and I thank them all for their service. 

2. The future is bright for Division 1.

Having a successful division takes more than just a Steering Committee
and necessitates that other members of Division 1 step up to get involved. The number of talented people whom I see raising their hands for the first time to participate in Division 1 is genuinely heartening. 

Among those who have stepped up to lead initiatives: 

  • Wendy and Sean addressing the Division 1 lunch in Louisville
    John Gazzola (John Gazzola | Troutman Pepper Locke) serves on the Toolbox Committee, organized our social in Louisville, and is organizing our practicum in Dana Point—proof that if you do a job well in Division 1, we reward you with…more jobs. 
  • Doug Mackin (Doug Mackin | Cozen O’Connor) serves as Division 1’s liaison to the Forum’s publications committee, plugging Division 1 members in writing opportunities.  

I am undoubtedly leaving people out, and there are more contributors mentioned below, but with this kind of energy and expertise in the ranks, Division 1 is in very good hands for years to come.

3. THE DISPUTE RESOLVER is the source for construction litigation and industry trends. 

If you’re not already reading The Dispute Resolver, this is your gentle nudge to start. It is, without question, a go-to source for:

  • Timely updates on construction litigation
  • Industry trends and practical insights
  • News on the business of Division 1 and the Forum

The blog runs like clockwork, regularly putting out high-quality content. Marissa Downs and Jessica Knox deserve enormous credit for this. They have taken a blog founded by Tony Lehman and Tom Dunn and, dare I say it, brought it to its pinnacle under their leadership. Thanks to Marissa and Jess’s upcoming editorial team (many of whom are returning veterans) for their great work and dedication to the upcoming blog year: Andrew Vicknair, Brendan J. Witry, Brett Burney, Dakota (Knehans) Atuan, Debrán L. O'Neil, Joel Bertet, Lisa D. Love, Patrick McKnight, Stuart Richeson, Troy Mainzer, Tyler Lloyd and Thanh Do.  

4. Division 1’s Toolbox Talks are your lunchtime source of construction litigation information.  

The number of people tuning in for our 30-minute, lunchtime quick-hitters is a testament to both the topics and the presenters. Whether it’s AI, procurement, or the latest twist in dispute resolution, our Toolbox Talks have become a great opportunity to get involved and learn something new. 

Brett Hensen and his committee have done an outstanding job curating programs that are:

  • Short enough to fit into a busy day
  • Substantive enough to be truly useful
  • Popular enough that people keep coming back for more

Thanks to Brett’s TBT Committee: John Gazzola, Thomas Cuneo (Thomas Cuneo | Ankura.com), Michael Martin (Michael Martin | VERTEX), Steve Warhoe (Stephen P. Warhoe | Long International) and Matt Argue (Matt Argue | One Mediator, Inc.) for their great work.  And I know that Dana Chaaban and Eric Meier will do a great job leading this effort moving forward. 

5. Practicums, celebrating their 10-year anniversary, continue to deliver.

Chris, Matt and Harper speaking at the Fall Practicum
My first practicum as Division 1 Chair featured Chris Dunn (Chris Dunn | Winstead PC), Matt Gillies (Matt Gillies) and Past Forum Chair Harper Heckman (Harper Heckman | Maynard Nexsen), who delivered a master class on “Negotiating the 10 Most Common Contract Provisions to Minimize Risks and Avoid Disputes” from the perspectives of the Owner, Contractor, and Designer. 

It was exactly what a practicum should be:

  • Practical
  • Lively
  • Rooted in real-world experience
  • And full of those “I’m going to steal that clause/argument/example” moments that make in-person programming so valuable 

If you haven’t attended a practicum yet, consider this your official invitation for Dana Point, California on February 4 Forum on Construction Law Events.

6. The ABA Forum on Construction Law is an unrivaled professional community.

If there is one thing this role has reinforced, it is that the Forum is a truly special professional community.

Where else can you:

  • Advance your career
  • Deepen your expertise
  • Meet people from across the country (and beyond) who do what you do
  • Learn in beautiful locations 

The Forum is full of smart, generous, and genuinely good people. When we needed someone to join Sean Dillion at our Louisville lunch program, past Chair of the ABA Forum, Wendy Venoit, stepped right in and said, “I’ve got it”, sharing pearls of wisdom from her extensive experience. It’s a place where competitors become collaborators, mentors become friends, and “networking” often looks suspiciously like having fun.

7. I am tremendously grateful for the opportunity to lead Division 1.

A lot of work by a lot of people goes into running Division 1. From our Steering Committee, to our presenters and writers, to our volunteers and participants—this truly is a group effort.

Being Chair of Division 1 has been a privilege. It is a pleasure to help lead this group of construction professionals, advocates, problem-solvers, and all-around good people. I am enjoying every moment of it and am constantly impressed by the creativity, commitment, and generosity within our Division.

Happy Holidays and Cheers to the New Year

I wish you and your families a joyful, peaceful holiday season. Here’s to a wonderful holiday season and to an even brighter, busier, and better 2026 for Division 1 and the ABA Forum on Construction Law.

Author Joe Imperiale has dedicated his practice exclusively to the construction and manufacturing industries for 20 years. He represents owners, EPC contractors, construction managers, general contractors, and subcontractors in disputes on a wide array of construction projects, and can be contacted at Joseph.Imperiale@Troutman.com.

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Thursday, December 11, 2025

Bridging the Information Gap of Alternative Delivery Methods on Public Projects

In almost all corners of the country, municipalities, counties, and states alike have historically employed a design-bid-build approach to public projects. While the delivery method lends itself easily to selecting the lowest bidder for both the design and construction phases of projects, it also excludes other, alternative methods that may be better suited for projects that require contractor involvement during the design phase, a phased approach to completion, or partnership between the public entity and private investment. But implementation of new delivery methods has posed a problem in some areas due to a lack of familiarity. This blog post proposes a simple solution.

As early as the mid-late 1990s, changes in federal procurement laws allowed for the adoption of design-build, one option for alternative delivery, for public projects. Since that time, states, municipalities, and other public entities have followed suit. Today, you can find the use of design-build, progressive design-build, A + B, CM/GC, CMAR, and P3 just to name a few of the delivery methods that have been adopted in various states. These alternatives help provide options to public entities to find the right fit for their project.

While many contractors in the private sector that routinely employ these different methods are familiar with their mechanics, the stakeholders who have recently adopted these new approaches may not be. This unfamiliarity with the dynamics of different delivery approaches can risk taking a new and potentially more efficient new way of tackling a project and shoehorning it into an older mode of thinking. This results in the loss of any potential benefit that the public (and the public fisc) could receive from a better way of doing things, but it generally creates delays in completion and higher costs than if the old standard—design bid build approach—were used.

Some of growing pains also come from learning something new. On CMAR projects in which we have recently been involved, we see owners and designers approaching their newfound involvement in the same way they always had. The collaboration between design and construction was tempered because of a misunderstanding about how these different paths would run. The result was that the design, value engineering, and constructability exercises were chopped up, at least until everyone—not just those familiar with the mechanics of the CMAR process—understood that these activities would run concurrently. Once that happened, the benefits of this new system began to emerge. As time went on, and all the stakeholders became more comfortable with their new dynamics, it has resulted in the exact goal of a CMAR project: a project completed on time, within budget, and with very few surprises.

This recent example embodies a deceptively simple solution: The key way to ensure that newcomers to the alternative delivery methods in the public sphere maximize the benefits is education. This rather obvious answer is not worth much if the people who understand how these systems work do not take the time to help educate those who are new to them. Thus, the trick, is for those who are familiar to help those who are not. Undoubtedly, this may create more work for contractors who find themselves with owners and designers that have not been part of such a process. But this may be the wrong view. Contractors succeed when they can avoid the project pitfalls of delays, acceleration, unforeseen impacts and costs, and disputes. So when faced with an alternative delivery method and a team unfamiliar with how to use it, the contractor should consider that the educating of its collaborators is really nothing more an investment in how to successfully implement new approaches for the benefit of everyone, including the contractor.

__________________________________________________________

Author, Michael S. Blackwell, is an equity partner with Riess LeMieux, LLC. Michael represents a wide variety of clients, ranging from general contractors, subcontractors, owners, developers, insurers, and sureties in the construction industry, and his practice touches on all manner of disputes and issues that arise during construction or business. Michael regularly lectures on matters affecting construction clients, engineers on ethics and liability, and construction managers and public entities on changes in Louisiana construction law.

Editor, Stu Richeson, is an attorney with Riess LeMieux in New Orleans, primarily focusing on commercial litigation with an emphasis on construction matters.

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Wednesday, December 3, 2025

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.

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.

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

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Tuesday, November 25, 2025

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. 

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.
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Monday, November 17, 2025

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.

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. 
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Tuesday, November 11, 2025

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.

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