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Expert Testimony

Expert Testimony

Our expert witnesses have testified in a wide array of venues and earned praise in numerous published decisions.

Courts

  • United States Court of Federal Claims
  • United States District Court
  • U.S. State Courts

Boards

  • Civilian Board of Contract Appeals
  • Armed Service Board of Contract Appeals
  • State and Local Boards of Contract Appeals

Arbitration

  • American Arbitration Association
  • Canadian Arbitration Association
  • International Chamber of Commerce
  • International Centre for Settlement of Investment Disputes
  • Bespoke arbitration proceedings

After two and a half years of attempting to audit the Contractor’s records, [CPMI Expert] Hadley, who this Court found both impressive and credible, concluded and testified to a reasonable degree of accounting and auditing certainty … I find Hadley’s conclusions to be credible, reasonable and consistent with the terms of the Contract Documents. I further find that, due and owing to the Contractor’s failure to perform a final accounting for the Project and its repeated obfuscation of the auditing process, Hadley’s conclusions are adopted as this Court’s findings by the greater weight of the evidence. … I further find that the methodology utilized by Doran violated industry standards and contained numerous errors that significantly impacted any weight this Court could give to Doran’s conclusions. As such, I find that the Contractor failed to meet its burden of proof to support an extension of Contract Time. I find the testimony of [CPMI Expert] Boe and Query to be more credible, informative and supported by the greater weight of the evidence.

Balfour Beatty Constr., LLC v. Library Assocs., LLC, No. 2019-CP-10-01108, Ct. Com. Pl., Charleston Cnty., S.C. (Oct. 6, 2023)

[CPMI Expert] Mr. Weathers credibly concluded that, in comparing the average bid to subcontractor’s bid, the subcontractor’s prime bid was “unreasonably low.” … Mr. Weathers helpfully presented several different scenarios, using average bids for both the prime contract and the subcontract as benchmark “reasonable” bid prices. His methodology essentially compared the subcontractor’s claim, as presented, to hypothetical scenarios in which the subcontractor had submitted a “reasonable bid” in line with the average bidder. Mr. Weathers also used both prime contractor’s and the subcontractor’s prime bids as a benchmark “reasonable bid.” Each of these iterations, comparing the subcontractor’s actual claim to its hypothetical claim had it submitted a reasonable bid, resulted in a negative damages number.

Phillips and Jordan, Inc. v. United States, 158 Fed. Cl. 313, 322-26 (2022)

According to [CPMI Expert] Mr. Boe, “[s]everal factors contributed to labor overruns for bent construction: Pile Cutoffs (Backcharged to ACC), Dowel Install & Repairs (Backcharged to ACC), Underwater Pile Repairs (Backcharged to ACC), Out of tolerance piles (REA 9), Skew Angle Redesign (REA 9), [and] Global Stability (REA 14).” Mr. Boe opined that NTS failed to apportion loss of productivity among these multiple factors. No productivity loss was attributed to backcharged ACC work or skew angle redesign. The record supports Defendant’s argument. … Plaintiff has not met its burden of proving modified total cost damages, in particular, Plaintiff’s lack of responsibility for lost productivity costs because Plaintiff failed to attribute any lost productivity to backcharged ACC work.

Nova Grp./Tutor-Saliba v. United States, 159 Fed. Cl. 1 (2022)

To prevail on a claim of constructive acceleration, a contractor must prove the following elements: (1) the contractor experienced an excusable delay entitling it to a time extension; (2) the contractor properly requested the extension; (3) the project owner failed or refused to grant the requested extension; [4] the project owner demanded that the project be completed by the original completion date despite the excusable delay; and (5) the contractor actually accelerated the work in order to complete the project by the original completion date and incurred added costs as a result. W. Stephen Dale & [CPMI Expert] Robert M. D’Onofrio, Construction Schedule Delays § 3:8 (Oct. 2020).

EDF-RE US Dev., LLC v. RES Am. Constr., Inc., No. 51-CV-19-54, 2021 WL 6496606 (Minn. Dist. Ct. June 1, 2021)

As FSS’s expert, [CPMI Expert] D’Onofrio found, the control house (Steward contract) was a separate path of work not dependent on FSS’s fabrication and delivery of the steel for the two bridge towers. The Court agrees with D’Onofrio that the control house delays were unrelated to the FSS contract.

Florida Misc. Steel v. American Home et al., Sup. Ct. N.J. No. HUD-L-5024-18 (2021)

[CPMI Expert] Mr. Weathers was a more credible witness at trial than plaintiff’s expert and also had prepared a careful expert report on all issues, including the issues on which (opposing expert) offered a revised expert report. … Moreover, plaintiff’s expert (opposing expert) made multiple mistakes in his calculations and offered unsupported conclusions in his expert reports and in his testimony at trial. To the contrary, defendant’s expert Stephen Weathers was more credible in his expert report and as an expert witness at trial.

LCC-MZT Team IV v. United States, 155 Fed. Cl. 387, 460-521 (2021)

The parties’ experts offered conflicting testimony concerning the validity of “earned value measured mile” approach to proving acceleration damages. The court finds that [CPMI’s use of] the earned value measured mile is an accepted approach by industry experts in certain circumstances and the manner in which the Vigor calculated the increased costs during the impacted period was consistent with this method of damage analysis.

Vigor Works, LLC v. White Skanska, JV, 2019 WL 13390900 (Mass. Super. Nov. 07, 2019)

The Board accepted [CPMI Expert] Mr. Boe as an expert in critical path method scheduling and delay analysis and labor of productivity claims. … We find Mr. Boe’s thorough and thoughtful analysis both credible and helpful. By contrast, despite the obvious time and effort that he devoted to his analysis, we find [the opposing’s expert’s] opinions less helpful, in part because it appears to discount or minimize the considerable evidence in the record, generated by [the contractor] itself during contract performance, that repeatedly indicates [the contractor’s] frustrations with and difficulties handling and motivating its subcontractors in India.

Yates-Desbuild Joint Venture, CBCA No. 3350 et al., 17-1 B.C.A. (CCH) ¶ 36870, 2017 WL 4296219 (Civilian B.C.A. 2017), partial reconsideration denied, CBCA No. 3350-R et al., 18-1 B.C.A. (CCH) ¶ 36959, 2017 WL 6419560 (Civilian B.C.A. 2017), full reconsideration denied, CBCA No. 3350-R et al., 18-1 B.C.A. (CCH) ¶ 36968, 2018 WL 928248 (Civilian B.C.A. 2018)

Metcalf did not meet its burden of proof to establish project delay by a Critical Path Method (“CPM”) analysis or other evidence as to how the Navy’s actions impacted the critical path. … Despite Metcalf’s expert’s inability to conduct a CPM analysis, the Government’s expert, [CPMI Expert] Mr. Weathers did so, pointing out that Metcalf’s July 1, 2006, internal schedule indicated that it would complete the project on time, despite any external delays.

Metcalf Constr. Co. v. United States, 107 Fed. Cl. 786, 791 (2012), vacated and remanded sub nom. Metcalf Constr. Co. v. United States, 742 F.3d 984 (Fed. Cir. 2014)

Consequently, in a “Changes” clause analysis, a contractor cannot recover acceleration costs flowing from a concurrent delay, unless the record supports a clear apportionment of the delay and expense attributable to each party. (quoting Appeal of Hemphill Contracting Co., Inc., ENGBCA No. 5840, 94–1 BCA ¶ 26491, 1993 WL 476309, Nov. 12, 1993). But see W. Stephen Dale, & [CPMI Expert] Robert M. D’Onofrio, Reconciling Concurrency in Schedule Delay and Constructive Acceleration, 39 Pub. Cont. L.J. 161, 194, 227–28 (2010) (arguing that concurrent delays are “excusable but not compensable” and entitle the contractor to more time; requiring the contractor to adhere to original schedule constitutes constructive acceleration).

United Constructors, LLC v. United States, 95 Fed. Cl. 26 (2010)

We find NIH’s expert [CPMI’s] analysis to be straight-forward and, with one minor exception discussed below, supported by the record before us. In sum, the expert presented a reasonable method for evaluating the impact of NIH’s changes.

Appeals of Gassman Corp., A.S.B.C.A. No. 44975, A.S.B.C.A. No. 44976, 00-1 B.C.A. (CCH) ¶ 30720, 1999 WL 1270580 (Armed Serv. B.C.A. 1999)

Finally, the court is also persuaded of the validity of defendant’s view of the critical path as opposed to plaintiff’s view because the court found the testimony of defendant’s expert [CPMI] who prepared the critical path to be both logical and convincing. The court was impressed with the thoroughness of his presentation of defendant’s critical path. In addition, his presentation of the critical path was, in the court’s view, in concert both with the events on the Nambe Falls Dam project as they actually occurred during construction and with the method which plaintiff, itself, had scheduled the construction work at the outset of the project.

G.M. Shupe, Inc. v. U.S., 5 Cl. Ct. 662, 729–30, 32 Cont. Cas. Fed. (CCH) ¶ 72712 (1984)