In the construction industry, delays are sometimes inevitable. These delays can be the result of red tape, weather, or the unavailability of resources. However, while some delays are excusable, other delays may be compensable, and others may be critical. If you are being threatened with litigation over a delay, you will want to discuss this with a construction attorney.
Critical Delays
A critical delay is one in which the delay will affect the completion date. Non-critical delays can affect some processes during the construction project but will not affect the completion date of the project. There is a schedule known as the "Critical Path Method" (CPM) schedule that will establish the minimum amount of time that is required to complete a particular task.
If a delay is not considered critical, you may simply need a change order to fix the delay. However, you will still want to consult with a lawyer regarding whether any delays might lead to litigation.
Excusable Delays
Your delay might be something that is considered excusable. For example, you may have a labor union strike. When a delay is beyond your control, you would not be considered negligent and the other party wouldn't be entitled to compensation. However, you will be expected to have a plan for any delays that are considered foreseeable.
In some cases, the client itself is responsible for causing the delays and this would also be considered excusable. For example, if the client decides to make a major change to the project, this may lead to a delay that is beyond your control.
Compensable Claim
In your contract, you may include a clause that would promise compensation if there is a delay under some circumstances. Compensation for a contractor will either come in the form of an extension to your contract or will come in the form of monetary compensation. Because the terms of the contract might be litigated in court, it's important to make sure that you involve a lawyer in the drafting of your contract.
While damages for delays can sometimes be expensive, there are often several defenses for damages due to delays. These can include:
- A "no damages for delay" clause
- A concurrent delay claim
- A force majeure event
- A "time is of the essence" clause
- An improper notice
However, you may need to gather evidence to prove that one of these defenses should apply with the help of an attorney. For more information, contact a construction attorney.
