College football in the Midwest. No further comment needed. So it should come as no surprise to see that a construction project in Mishawaka, Indiana was "postponed" as the local football team advanced to the state playoffs.
Although the school’s request to hold off the work crews affected construction for only a few days—and there was no indication that the postponement significantly delayed the completion of the work—it does raise some questions about excusable delays.
Generally, the parties’ contract will determine whether a delay is excusable or non-excusable. Some typical examples of excusable delay include:
- Design problems
- Differing site conditions
- Changes in the work
- Force majeure (i.e., Acts of God, unusually severe weather, riots, war, labor disputes)
In some instances, the contract will contain an exhaustive list of those events or circumstances where a delay to the contractor’s work will be excused. In other instances, the contract may simply define an excusable delay as "any delay to the work that is beyond the contractor’s control and without the fault or negligence of the contractor."
On the other hand, non-excusable delays are traditionally the responsibility of the contractor. Examples of non-excusable delay may include:
- Non-conforming or defective work
- Failure to adequately plan or schedule the work
- Inadequate manpower
- Any other delay within the contractor’s control
In these instances, the contractor is generally not entitled to a time extension, is not entitled to additional compensation for the extra time on the project or work performed, and may even be responsible for liquidated damages.
When there is a delay to the work, what should you do? Although you may have different options depending on whether you are the owner, contractor or supplier … or depending on whether the project is public or private … here are some tips:
- Review the delay provisions of the agreement. Because these provisions vary from contract to contract, it is critical to understand what will be considered excusable. The real issue here is to determine what will be the litmus test in determine whether the non-performance or delay in the work should be excused for some reason beyond the performing party’s control.
- Determine whether a time extension is warranted. As you review the delay provisions, the next step is to determine what relief will be given if the delay is determined to be excusable. For example, the contract may allow for a contract time extension, additional compensation, and relief from liquidated damages when the delay is found to be excusable or beyond the performing party’s control.
- Consider whether the delay is concurrent. Many times the contractor’s work may be delayed by more that one cause—one that is excusable and one that is non-excusable. In this instance, depending on the applicable law, the court may either: (a) deny any recovery whatsoever because the delays were caused, in part, by the contractor; or (b) apportion the delay damages between the responsible parties.