Many construction projects suffer schedule delays. When this occurs, acceleration may be warranted. The question is usually, who should bear the cost? To answer this question, one must first determine the cause of the delay. Having a broad “force majeure” clause may allow a party to seek additional time and compensation for issues covered by the clause.

An example is:

"Any delays in or failure of performance by any Party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God, fires, floods, strikes, labor disputes, accidents, regulations or order of civil or military authorities, shortages of labor or materials, or other causes, similar or dissimilar, which are beyond the control of such Party.”

That said, these types of provisions are rare in construction contracts. More often, there is no force majeure provision, but a clause that requires the performing party to accelerate as needed to make up for any delays.

An example is:

“If Owner determines that the progress of the Work has been delayed or the Schedule is in jeopardy of not being met for any reason whatsoever, Owner shall have the right to require Contractor, at Contractor’s sole cost and expense, to take whatever steps are necessary to remedy such situation including, without limitation, requiring Contractor to accelerate the progress of the Work by increasing the workforce or hours of work. Contractor shall, within three business days thereafter, fully implement the recovery schedule to bring the progress of the Work back to the approved progress schedule in no later than 30 days.”

In the rare situation where there is an absence of a specific delay related provision, claims for time extensions and additional compensation may be possible, subject to proper and timely notice. More common are specific provisions limiting the right to recover time and money related to delays, the most common being a “no damage for delay” clause. This contract term generally limits your recourse to time only.

An example is:

“In the event Subcontractor experiences delays, inefficiencies, outofsequence work or lack of productivity arising from or related to the actions or inaction of the Owner, its agents, other subcontractors or for reasons attributable to other causes beyond Contractor’s control, Subcontractor’s sole remedy shall be to seek an extension of time and Contractor shall not be liable to Subcontractor for any money damages. Time extensions will only be granted by Contractor to the extent that the Owner approves and grants Contractor an equivalent time extension.”
There are some limited exceptions to this type of provision, such as if the party seeking to enforce the no damage for delay clause is the willful cause of the delay.

Finally, consider how situations like rain, floods, hurricanes, natural disasters, strikes, preceding trades, shipping delays, material shortages and unavailability, and the like are handled in the contract, if at all. Also pay close attention to the notice and claim provisions, as the submission of a delay claim is likely subject to timely and proper notice and documentation. And when dealing with lower tiers, require their compliance with all delay provisions you are obligated to in your upstream contracts so as to mitigate your risk.

We hope this helps you understand the construction contracting process a little better. If you have questions about your contract, send us an email or give us a call (https://www.thelienzone.com/contact/). And make sure to check out our other free tools (https://www.thelienzone.com/tools)and our weekly podcast (https://www.thelienzonepodcast.com/).