Your Partner in Managing Project Changes

Excusable delays in construction projects have a legitimate cause and are generally considered normal, unavoidable and/or beyond the control of the owner or contractor. These include:

Acts of God

Floods or fires

Revisions by the owner that impact the project’s timeline

Unavailability of materials

Labor disputes (sometimes these may be inexcusable)

Anything specified in a contract as “excusable”

With the latter, where excusable or inexcusable delays are specified in the construction contract, either party can usually be reimbursed for the delay (by time or money) 

If a delay is considered outside of the control of either party, however, both parties generally absorb the cost.

Delays can be due to natural events, material shortages, poor planning, or mismanagement, each with different implications for liability.

Delays are proven by showing they impact the critical path of the project schedule, delaying the substantial completion date.

Extra work claims are common on construction projects and can be caused by many factors. Typically, in Florida, we represent clients involved in claims relating to:

• An owner requesting a modification to a building after the design is “locked in”
• An error or omission in the plans or specifications by a design professional
• The contractor omitting items from the bid
• These and many other issues often lead to claims for costs related to extra work.

Frequent construction change orders throughout the delivery process can also have a domino effect, causing delays that affect completion dates and add to the complexity of the situation.

These clauses attempt to limit liability for delays but may not be enforceable, particularly if delays are unreasonable.

Inexcusable delays result from the action or inaction of one or more parties in a construction project, including the owner. They are avoidable and could have been prevented if more care and attention had been paid.

Examples include:

• Poor site plans
• Poor scheduling
• Sub-standard performance by a contractor/subcontractor
• Avoidable injuries on the worksite
• Mismanagement of the work or construction site
• Negligence of one party (including the owner)
• Action or inaction of the owner
• No valid excuse for delays provided by a contractor

Failure to adhere to an agreed timeline due to inexcusable delays like this can lead to a legal claim whereby the party alleged to be responsible for the delays is required to pay or provide another service to make up for losses. 

Damages may include the loss of profitability for an owner (construction delays causing a business to postpone its opening, for instance) as well as losses for liability insurance and equipment rental costs for a contractor.

Concurrent delays where two or more events leading to delays can create major issues (and losses) on construction projects. 

If the events involve only one party, that party may be held liable for the entire losses. However, they frequently involve two or more parties and this may lead to disputes that can be challenging to resolve. 

In such complex situations, where property owners and/or contractors face delays to project completion and are out-of-pocket because of it, liability can be difficult to determine. It often takes extensive experience to be able to mediate and resolve these disputes without ending up in court.

Sometimes, delays may cause a “domino effect” whereby the contractor must reschedule and re-coordinate with subcontractors, causing delays to multiple construction projects and further complexity.