The National Academies

TCRP J-05/Topic 19-04 [Pending]

Transit Sponsor and Contractor Delay Damages and Remedies Due to Third Parties - Transit Facility Improvements-Common Legal Issues and Solutions
[ TCRP J-05 (Legal Aspects of Transit and Intermodal Transportation Programs) ]

  Project Data
Funds: $50,000
Contract Time: 12 months
Staff Responsibility: Gwen Chisholm-Smith



The Transit Cooperative Research Program (TCRP) plans to award a contract for a study and report. Legal research reports sponsored by this project are published in TCRP's Legal Research Digest (LRD) series in electronic format. Publications are made available to some libraries and to approximately 4,000 transportation lawyers and officials through the TRB distribution network.




Transit agencies are often involved in facility construction projects.  These may be transit fixed stations, maintenance, and similar facilities as well as longitudinal facility construction, surface and underground. Project sponsors have contracts that may be used to control its exposure to claims of sponsor-caused delays, but sponsors and their contractors often are impacted by delays due to the conduct or nonperformance of third parties outside of the contract. These third parties cause project delivery delays and increased costs, both at the bidding and performance stages of the contract.  The risk of nonperformance or delayed performance by third party contractors may result in increased bid prices and project costs, from the perspective of the sponsor, the sponsor’s contractor and subcontractors, and the public. 




The objective of this research is to produce a legal research digest that provides potential remedies available to the sponsor and contractors that experience increased costs due to delays and show how those damages are measured.  Remedies must include legal and administrative remedies, including risk allocation, and legal and practical enforcement issues.


The research should address:


·         Ownership of property;

·         Right of way;

·         Allocation of risk between sponsor and contractor; and

·        Third parties (such as utilities), adjoining owners (such as railroads), and techniques (such as guaranteed maximum contract price). 


Interviews should be conducted as appropriate with a representative subset of this group. Relevant statutes and regulations, permit, and accommodation policies should be collected.




Selected Studies in Transportation Law, Vol. 1: Construction Contract Law - 2014 Supplement covers provisions regarding delay damages but from the perspective of claims against the owner by the contractor.  Claims against others is against design professionals who are not third parties but contract with owner too. https://www.trb.org/main/blurbs/170976.aspx  See Pages 6-35 and 6-39 to 6-54 for damages discussion against owner, and pages 5-44 for owner remedies and recovery.


1.    Update SSTL, Volume 5, Transit Law does not directly address the issue, but may offer some insight into remedies due to third parties.

2.    TCRP Legal Research Digest 47: Legal Issues with Obtaining Insurance on Large Transit Capital Projects:




This research will be conducted in four tasks pursuant to a firm fixed price agreement.

The tasks will be as follows:


Task 1. Research plan and detailed report outline. The consultant will conduct background research and collect relevant material. Based on the initial but complete review of the source material, consultant will propose a detailed report outline. The outline should be at least 8 to12 pages, include a proposed survey if one is to be used, and contain sufficient detail to inform the TCRP project panel of what a 75- to 100-page report will contain. This outline should also contain the estimated pagination for each proposed section and/or subsection. This material will be submitted to TCRP for consideration and approval.


Task 2. After approval of the work plan, the consultant should conduct additional research, and case and statutory/regulatory analysis.


Task 3. Draft report in accordance with the approved work plan (including modifications required by TCRP).


Task 4. Revise report as necessary. The consultant should estimate that two revisions will be necessary. One revision may be required after review by the TCRP staff and members of a select subcommittee. Additional revisions may be required after the full committee has reviewed the report.


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