Masonry Magazine October 2003 Page. 35
If you are delayed due to the general contractor's lack of performance, your ability to recover for these delays may depend on your contract.
Non-Excusable Delays
DELAYS ARISING from the lack of performance of the contractor on a job are generally defined as non-excusable delays. For example, if the contractor or subcontractor were stretched too thin with too much work and failed to supply an adequate amount of workers, this situation would be a non-excusable delay. Incorrect work that needs to be corrected may also cause non-excusable delays.
As a subcontractor, if you are delayed due to the general contractor's (GC) lack of performance, your ability to recover for these delays may depend on your contract. Many subcontract agreements contain terms that a subcontractor can only recover for delays if the GC recovers from the owner. Obviously, the GC would not recover from the owner for delays caused by the GC's own infractions. Therefore, GC-caused delays may translate to unrecoverable damages for your company.
Blended Issues
SOME SOURCES of potential delay can fall into either the excusable or non-excusable delay category depending on the factual situation. For example, many delay claims relate to "unexpected site conditions." A good example of such a condition is running into unexpectedly bad soil. On some projects, however, the risk of bad soil is contractually shifted to the contractor. As such, the definition of whether delays relating to such issues are excusable or non-excusable can depend on your contract.
Weather conditions can create similar factual issues. If you are delayed by weather, your ability to recover for such delays, or your risk of liability for such delays, may turn on expert review of typical weather patterns for your area. Again, the terms of the contract and specifications may contain specific provisions defining the precise conditions required to recover for weather delays.
Another blended source is the delay in the process for submission, review and approval of shop drawings, samples and product data. The submittal procedure can often be relatively Byzantine leading to miscommunications and submittals sitting on various desks. Further, late submittals of long lead-time items can create delays. Finally, repeated rejections of submittals can lead to delays. The question of whether such delays are compensable or non-compensable depends on detailed and often complex reviews of the facts, documents, contracts and specifications.
Contractual Points of Note
THERE ARE VARIOUS contract terms that can have a significant impact on potential delay claims. Before starting a project, you need to know what all the terms of the contract are relating to scheduling, and also be familiar with the submittal procedure and timing to avoid potential delay liability. You also need to know
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October 2003
Masonry 33