Masonry Magazine October 2003 Page. 34
LEGAL
A LAYPERSON'S
GUIDE TO
DELAY
CLAIMS
PART I
By Timothy R. Hughes, Esq.
Hughes & Associates, P.L.L.C.
THE OLD ADAGE IS "TIME IS MONEY." THERE IS no place this saying is more true than the modern construction project. In addition to the money associated with increased costs and expenses for delays on a project, delay claims are likely the most complex type of construction litigation case to handle. It is critical to protect your business, understand how to preserve and assert your delay claims, and defend against claims that your actions delayed the project.
This topic is highly complex - there are actually several books that are devoted entirely to construction delay claims. Part one of this series addresses different types of delays, potential sources of delays and contract terms that may impact on delay claims.
Types of Delays Defined
IN THE LAYPERSON'S SENSE of the word, "delay" simply means a postponement in the completion of a task. In the legal sense of the word, "delay" can actually involve several distinct situations that present different legal claims and defenses.
Delays generally fall into two categories: excusable delay and non-excusable delay. Generally speaking, excusable delays are those not caused by the contractor's lack of performance. Non-excusable delays are those caused by the contractor's lack of performance or breaches of contract on the job.
Keep in mind, delay cases can involve not only a pure extension of completion time on a project, but also the related concepts of suspension of work on the job, ongoing disruptions to performance on the job, and efforts of the contractor to accelerate work on the job to meet schedules or to reduce delays. Each of these situations involves different issues of proof and these definitions can be critical to your company's position depending on the terms of your contract.
Potential Sources of Delay
# Excusable Delays
EXCUSABLE DELAYS CAN come from a number of different sources. For example, every contractor has faced a situation of an owner delaying a project. The owner may change his or her mind about a design or budget decision in the middle of the project. The owner may also add significant elements of construction during the job without regard to the potential scheduling and financial impacts to the ongoing project.
Similarly, errors or omissions in the contract documents can lead to excusable delays on the project. The obvious example is where a change in design occurs after an element of construction is performed, requiring crews to go back, remove and replace the element of construction. Delays can also flow from changes in design before an element of construction has even started.