Design Engineer/Contractor Bankruptcy: Considerations for Debtor and Creditors

The bankruptcy rate within the American construction industry has been increasing in recent years. Despite its increasing frequency, many construction industry professionals remain unaware of what a bankruptcy proceeding entails. This lack of awareness is cause for concern to both debtors and creditors. This paper, therefore, is designed to, on an overview level, lay out the factors construction debtors and creditors must consider when deciding whether to file for bankruptcy. Assuming that the decision to file for bankruptcy has been made, the paper presents an analytical overview of the bankruptcy code in terms of its operative chapters, under which a construction‐related debtor might seek relief from creditors. Since the decision to file for bankruptcy fundamentally changes business relationships, models of both Chapter 7 and 11 proceedings are included to illustrate common occurrences. It is hoped that this paper will prepare construction‐related debtors and creditors for dealing with the possibility of bankruptcy.