Can You Recover for Construction Delays? By William C.

Last of Last & Faoro It is common to experience delays during construction projects. When may contractors be entitled to compensation when such delays occur? enerally! four tests must be satisfied before reco"ery for delay costs will be allowed# a contractor must pro"e that the delay was $%& excusable! $'& compensable! $(& critical! and $)& non#concurrent. *he remainder of this article will pro"ide a brief explanation of each test. Future articles will then treat these issues in greater depth. Is the +elay ,xcusable or -on#,xcusable? +elays that excuse a contractor from performing within the contract period and justify an extension of time to perform are .excusable.. enerally! whether delays are excusable depends on contract pro"isions. Force majeure! acts of od! unexpected weather! labor disputes! owner design problems! owner#initiated changes! and similar factors may cause excusable delays# the main consideration is whether the factors were beyond the contractor/s ability to control or foresee. 0ut another way! delays are generally excusable when another party caused but could ha"e a"oided them! or when they were due to en"ironmental factors beyond the control or foresight of anyone. If an excusable delay is encountered! it is most important to meet contractual re1uirements that notice be gi"en. 2ost contracts re1uire written notification of the other party when a delay occurs. 3 delay claim may be barred if timely written notice was not gi"en when the delay occurred. 3n .inexcusable. delay is one which the delaying contractor could ha"e foreseen or pre"ented but failed to do so. In such cases! the delaying contractor must assume the costs and results of delay for both himself and any other parties impacted by the delay. 3n unexcused delay may be considered a breach of contract. *here are numerous types of inexcusable delays. If weather conditions! labor problems! or subcontractors/ or suppliers/ late deli"ery could and should ha"e been anticipated! then the delay may be inexcusable. Failure to pro"ide ade1uate staff or tools! inexperience! or cash#flow problems can also result in unexcused delays. Is the +elay 4ompensable or -on#4ompensable? 4ontract clauses generally determine whether delays are compensable or non#compensable. +ifferent types of contract clause attempt to limit compensability. 5ne common type of contractual clause that attempts to limit delay claims is a .no damages for delay. clause. ,ssentially! four theories limit the applicability of such a clause6 If the delay is $%& due to other parties/ action or inaction7 $'& not go"erned by the contract7 $(& unreasonably long7 or $)& was one whose possibility the parties did not contemplate! it may not be possible to collect damages. 8ince there are many exceptions to the applicability of contractual limitations on delay claims! contractors should re"iew such clauses with competent legal counsel. Is the +elay 4ritical? +id the delay ha"e an impact on the time for completion of the project as a whole? 3 delay may not impact the o"erall project completion date. If it does not! the delayed party may not be able to reco"er. *he contractor must therefore establish that the delay was excusable! compensable! and on the critical path. 4omparison of as#planned and as#built schedules is the 9ey method for determining if a delay is critical. 8uch a comparison allows the contractor or owner to determine which acti"ities are critical to the earliest completion of the project. Is the +elay 4oncurrent? *wo or more independent delays during the same period are 9nown as .concurrent delays.. *he courts ha"e rendered inconsistent decisions as to delayed parties/ rights to reco"er damages for concurrent! but independent delays. 8ome ha"e attempted to apportion the damages from such delays among the delaying parties. 3pportionment does not ha"e to be exact! and can be complicated by criticality! excusability! and compensability factors. In some cases! the courts ha"e denied reco"ery to either party! reasoning that such claims were similar to li1uidated damage claims.

If you are confronted with delay damages! you should immediately begin documenting the claim! notify the other party to the contract! re"iew your contract for pertinent clauses! and see9 competent legal counsel. *his article! :%;;<! was written by William 4. Last! =r. 2r. Last is an attorney who has been speciali>ing in 4onstruction Law for '? years. 2r. Last also holds a 4alifornia 3 & B contractors license. @e can be contacted at AB?#A;A#C(B?. This bulletin is published periodically to provide general information about current legal issues. If you have a specific legal question or need legal advice, you should contact an attorney.