As a general rule, the plaintiff carries the burden of proving delay and constructive acceleration claims. According to well-settled law, the party claiming delay damages must demonstrate to the trier of fact (1) what delays occurred; (2) whether the delays are compensable; (3) who caused the delays; (4) whether the delay was offset by concurrent delays such as the delays of the opposing party or by compensable delays; and (5) the relationship between the delay and damages claimed. See, Fieldcrest Builders, Inc. v. Antonucci, 724 N.E.2d 49 (Ill. App. Ct. 1999); Premier Elec. Const. Co. v. American Nat. Bank of Chicago, 658 N.E.2d 877 (Ill. App. Ct.); Pathman Const. Co. v. Hi-way Elec. Co., 382 N.E.2d 453 (Ill. App. Ct. 1978). The claimant has the burden of proving the extent of the delay, that the delay was proximately caused by the other party, and that the claimant was harmed by the delay. See, Wilner v. U.S., 24 F.3d 1397 (Fed. Cir. 1994) The extent of the delay of each party must be clearly shown. See, Fieldcrest Builders, supra, 724 N.E.2d 49 (denying owner’s counterclaim for delay damages in contractor’s action for recovery in quantum meruit, finding that owner caused delays in contractor’s work during the course of the project and the owner made no attempt to separate, explain, or identify which delays could be attributed to the contractor; also rejecting owner’s argument that delay damages were mandated because project was delayed when owner terminated contractor from the project in August and could not find replacement until December).

In establishing a causal link between delay and the damages claimed, a contractor must show that the contractee’s actions affected activities on the critical path of the contractor’s performance of the contract. See, Kinetic Builder’s Inc. v. Peters, 226 F.3d 1307 (Fed. Cir. 2000) (government contractor failed to show causal connection between Air Force’s delay in correcting defective restroom design in building to be altered and slowing of contractor’s progress in completing contract, so contractor was not entitled to time extension or reimbursement for extended job site overhead costs in connection with such delay). The party seeking delay damages bears the burden of establishing the alleged damages with a reasonable degree of certainty. See, Fieldcrest Builders, supra, 724 N.E. at 58 (1st Dist. 1999).

In addition, Courts in the 4th Circuit have held that the party claiming it incurred added costs because of delay in performance required under the contract has the burden of proving these costs. Virginia Beach Mechanical Services, Inc. v. Samco Construction Company, 39 F. Supp. 661, 672 (E.D. Va. 1999) (citing United States v. Citizens & Southern Nat. Bank if Atlanta, 367 F.2d. 473, 480 (4th Cir. 1966). If there are factors for which the defendant is responsible and factors for which it is not, the party alleging a delay caused by a material breach must provide a reasonable basis for apportioning the damages. Id. Applying these principles to the facts in Samco, the Court held that at least one other subcontractor caused the delays and may have stalled the contract performance, and for this reason, it could not conclude what role the contractor played in delaying ultimate completion of the contract and causing the damages sought. Id. Finally, the Court found that the subcontractor did not provide a reasonable basis for apportioning damages among the contractor and other subcontractors, who were obviously a substantial factor in the delay that did result. Id.

Therefore, it is the subcontractor that bears the burden of proving that an EPC contractor’s actions caused delay and constructive acceleration.

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